Intellectual Property Law

Motion to Transfer Denied: Inconvenience Will Not Take Precedence over Delaware Corporation's Choice of Forum

By Karen E. Keller, Andrew A. Lundgren et al.

It is well-established that plaintiff's choice of forum will be a strong consideration in deciding a motion to transfer. Judge Sleet in denying the defendants' motion to transfer in the case Acuity Brands, Inc. v. Cooper Industries, Inc., again stressed the importance of plaintiff's choice of forum -- particularly where both parties are Delaware corporations and inconvenience is the only argument for transfer. C.A. No. 07-444-GMS, Memorandum (D. Del. July 31, 2008).

Defendants argued that their only tie to Delaware was the fact that they were incorporated here and that the case law provides for transfer where that is the only link to the forum. Id. at 3. The Court found the cases relied on by defendants distinguishable, however, since in those cases there was also simultaneous litigation proceeding in the transfer district, and there is no such parallel litigation here. Id. at 4.

In a continuing trend in D. Del. transfer opinions, the Jumara factors related to location of witnesses and documents are becoming less important to the analysis. The Court has held that party-witnesses such as employees "are presumed willing to testify at trial" and therefore are not part of the analysis. Id. at 5. And even in the case of third-party witnesses, "a flight to Delaware is not an onerous task warranting transfer." Id. Finally, in this age of electronic discovery, the location of documents becomes almost irrelevant. Id.

For a copy of the opinion see here.

Full post as published by Delaware IP Law Blog on August 01, 2008 (boomark / email).