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Motion to Transfer Venue Granted (But Don't Brief Like This At Home)

By Michael C. Smith

DE Technologies, Inc. v. E4X, Inc., et. al., 2:10cv139 (3/24/11)

Judge: T. John Ward

Holding: Motion to Transfer Venue GRANTED

Defendants sought dismissal for improper venue, or in the alternative a transfer to Virginia or if not Virginia, California.  Judge Ward found that venue was proper, but granted the motion to transfer the case to Virginia.  But in doing so he noted that the motion suffered from a relative paucity of proof to support the allegations that the transfer was appropriate - proof that as the movant seeking to carry a burden to show that another forum is "clearly more convenient" should be present to support the requested relief.  For example, there was no proof as to where the documentary evidence was, nor any identification of who the relevant witnesses in the proposed transferee forum were, simply requests for the Court to make assumptions regarding these facts based on the fact that the plaintiff had previously had activities there, which the Court declined to do.

Squinting at the little proof he could find in the briefing, and drawing inferences from what the parties had said in affidavits and other proof, Judge Ward was able to document that nothing was in Texas, while the plaintiff was formerly in Virginia, at least some proof was there, and - importantly - the plaintiff had a prior patent infringement suit in the Western District of Virginia involving the same patent where that court performed a claim construction, issued two partial summary judgment orders, and issued multiple other orders."  Relying heavily on judicial economy considerations, and to a lesser extent on the apparent fact that at least some documents were located in Virginia, Judge Ward granted the motion to transfer.  

From Docket Navigator.

Full post as published by Eastern District of Texas Federal Court Practice on March 28, 2011 (boomark / email).