Magistrate Judge Sherry R. Fallon recently recommended that a defendant’s motion to transfer to the Northern District of California be denied. Wireless Media Innovations, LLC v. Leapfrog Enterprises, Inc., C.A. No. 13-1545-SLR-SRF, Report and Recommendation (D. Del. Mar. 20, 2014). Plaintiff and defendant were both Delaware corporations. Defendant’s documents, employees and anticipated witnesses were in California. All alleged acts of infringement took place in California, as plaintiff alleged that defendant’s practices at its California distribution center, rather than its nationally-sold products, infringe plaintiff’s system and method patents. D.I. 1 ¶¶ 11-12; Report and Recommendation at 2 n.1
The Court concluded that, on balance, the Jumara factors weighed against transfer, even though several of the individual factors weighed in favor of transfer. Specifically, defendant’s forum choice, where the claims arose, and the convenience of witnesses favored transfer. See id. at 4-5, 6-8. As to the convenience of witnesses, defendant argued that many of its non-party witnesses that would be crucial to its non-infringement positions may be beyond the reach of the Court’s legal process. Id. at 7. Defendant provided declarations from third parties in support of its contentions. Plaintiff argued that these parties could be deposed and that testimony admitted at trial, but the Court noted that “deposition testimony is not a complete substitute for live trial testimony.” Id. at 8. Because defendant’s “assertions cannot be discounted as speculation in light of the declarations proffered,” this factor weighed in favor of transfer. Id.
On the other hand, Plaintiff’s choice of forum weighed against transfer, as did the convenience of the parties because defendant was the larger company, had chosen to incorporate in Delaware, and had previously sued and been sued in Delaware. See id. at 4-6. The remaining factors were neutral or only weighed slightly in favor of transfer. See id. at 9-10. The Court explained that “[i]n similar cases involving factors that weigh both for and against transfer, this court has declined to elevate a defendant’s convenience over the choice of a neutral forum selected by both parties as the situs of their incorporation.” Id. at 10.
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