Judge Andrews Denies Motion to Transfer Venue

The District of Delaware has produced another opinion in the recent line of cases considering motions to transfer venue, this time denying a motion to transfer to the Eastern District of Texas in Microsoft Corp. v. Geotag Inc., C.A. No. 11-175-RGA (Jan. 13, 2012). Much like Judge Andrew’s recent decision in Wacoh Co. v. Kionix Inc., the opinion distinguishes recent Federal Circuit precedent and relies on the Third Circuit’s Jumara public and private interest factors. The case involves a complaint for declaratory judgment of noninfringement and invalidity filed by Microsoft and Google against Geotag, Inc. Geotag, although a defendant in this suit, is a plaintiff against more than 450 companies in the Eastern District of Texas, alleging infringement of the same patent against all of them. Microsoft and Google filed a complaint in the District of Delaware seeking declaratory judgment regarding that patent, and Geotag moved for transfer to the venue where its infringement actions are currently pending.

Considering the Third Circuit’s private and public interests framework for analyzing motions to transfer, Judge Andrews stated: “[Plaintiff’s forum preference] supports the plaintiffs’ position that the case should not be transferred. [Defendant’s forum preference] supports the defendant’s request to transfer the case. The other interests do not add much to the balancing, as they are either inapplicable to this case, possibly applicable but not well-developed in the record, or applicable but pretty evenly-balanced as to which side they support.” Id. at 3-4. Judge Andrews’ opinion expressly considers and weighs each factor, explaining why each does or does not add to the balance. Of particular importance, he notes, “[p]laintiffs have chosen Delaware as a forum. That choice weighs strongly in the plaintiffs’ favor, although not as strongly as it would if the plaintiffs had their principal places of business (or, indeed, any place of business) in Delaware.” Id. at 4. By contrast, the defendant’s “lack of a substantial connection to the Eastern District is taken into account in the balancing of the other factors, and, in particular, by not according Geotag’s preference for the Eastern District the same weight as it might otherwise deserve.” Id. at 12.

Judge Andrews also addressed the Federal Circuit’s recent decision in In re Link_A_Media Devices Corp., 662 F.3d 1221, 1224 (Fed. Cir. 2011). In considering the convenience of witnesses, books, and records, Judges Andrews stated: “While there is a paragraph in In re Link_A_Media Devices Corp.[], about ‘the convenience of the witnesses and the location of the books and records,’ I do not understand the Federal Circuit to have altered the Third Circuit’s focus on the issue being not so much where the witnesses and evidence are, but whether they can be produced in court.” Id. at 6 n.2. Furthermore, he noted that the Geotag case was different from the Link_A_Media case in that there was a stronger connection to Delaware and a weaker connection to the transferee venue. “I have considered In re Link_A_Media Devices[], but I do not think it is particularly helpful in assessing the transfer request in this case, as its facts were very different. I would characterize that case generally as standing for the proposition that when the parties, all the witnesses, and all the evidence are in one distant jurisdiction, and the only connection to Delaware is that it is the state of incorporation of the defendant, and there is no other reason for the suit to be in Delaware, the suit must be transferred, upon timely request, to the distant jurisdiction. While in the present case there is a marginally greater connection to Delaware, as one of the plaintiffs is also a Delaware corporation, of much greater significance is that with the exception of Geotag’s CEO, the witnesses have no connection to the proposed transferee district, and most of the evidence is not going to be there either.” Id. at 12-13.

Judge Andrews ultimately found that “the ‘interest of justice’ supports management and resolution of all the Geotag cases by one judge, but it does not really provide an answer to the question whether it should be a Texas or a Delaware judge. Under Third Circuit law, considerable deference is given to the plaintiffs’ choice of forum. Since there is little beyond the defendant’s choice of forum- which is less compelling than usual -to suggest transfer should be ordered, I do not think the defendant has shown that the balance of convenience tips significantly enough in the defendant’s favor so that transfer should be ordered. I will therefore deny the defendant’s motion to transfer.” Id. at 13.

Microsoft Corp. v. Geotag Inc., C.A. No. 11-175-RGA (Jan. 13, 2012).

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