United States District Court, D. Delaware
G. Day, Andrew C. Mayo, Ashby & Geddes, Wilmington, DE;
Henry C. Bunsow, Denise De Mory, Christiana M. Finn, Jenna
Elizabeth Dean, Bunsow De Mory LLP, Redwood City, CA -
attorneys for Plaintiff
Frederick L. Cottrell, III, Kelly E. Farnan, Sara M. Metzler,
Richards, Layton & Finger, P.A., Wilmington, DE; Charles
K. Verhoeven, David A. Perlson, Jordan R. Jaffe, Quinn
Emanuel Urquhart & Sullivan LLP, San Francisco, CA 94111
- attorneys for Defendants May 16, 2019 Wilmington, Delaware
NOJREIKA, U.S. DISTRICT JUDGE.
YouTube, LLC (“YouTube”) and Google LLC
(“Google”) (collectively “Defendants”)
have moved pursuant to 28 U.S.C. § 1404(a) to transfer
this case to the Northern District of California. (D.I. 39).
Plaintiff Virentem Ventures LLC (“Virentem” or
“Plaintiff) opposes. (D.I. 53). For the reasons
discussed below, the Court will deny Defendants' motion.
Virentem Ventures LLC and each of the Defendants are Delaware
corporations with principal places of business in California.
Plaintiff filed this action on June 20, 2018, alleging that
Defendants infringe eleven patents. On November 9, 2018,
Plaintiff filed an Amended Answer asserting infringement of
the same eleven patents and adding a twelfth count titled
“Unfair Competition - Violation of Cal. Bus & Prof
Code § 17200.” (D.I. 30). On December 7, 2018,
Defendants moved to dismiss Plaintiffs claims for willful and
induced infringement and to dismiss and to strike Plaintiffs
unfair competition claims. (D.I. 34, 35).
courts have the authority to transfer venue “[f]or the
convenience of parties and witnesses, in the interests of
justice, . . . to any other district or division where it
might have been brought.” 28 U.S.C. § 1404(a).
However, “[a] plaintiff, as the injured party,
generally ha[s] been ‘accorded [the] privilege of
bringing an action where he chooses, ” Helicos
Biosciences Corp. v. Illumina, Inc., 858 F.Supp.2d 367,
371 (D. Del. 2012) (quoting Norwood v. Kirkpatrick,
349 U.S. 29, 31 (1955)), and this choice “should not be
lightly disturbed, ” Jumara v. State Farm Ins.
Co., 55 F.3d 873, 879 (3d Cir. 1995).
[i]n ruling on § 1404(a) motions, courts have not
limited their consideration to the three enumerated factors
in § 1404(a) (convenience of parties, convenience of
witnesses, or interests of justice), and, indeed,
commentators have called on the courts to “consider all
relevant factors to determine whether on balance the
litigation would more conveniently proceed and the interests
of justice be better served by transfer to a different forum.
Jumara, 55 F.3d at 879 (citation omitted). The
Jumara court went on to describe twelve (12)
“private and public interests protected by the language
of § 1404(a).” Id. The six private
plaintiff's forum preference as manifested in the
original choice; the defendant's preference; whether the
claim arose elsewhere; the convenience of the parties as
indicated by their relative physical and financial condition;
the convenience of the witnesses - but only to the extent
that the witnesses may actually be unavailable for trial in
one of the fora; and the location of books and records
(similarly limited to the extent that the files could not be
produced in the alternative forum).
Id. at 879 (citations omitted). The six public
the enforceability of the judgment; practical considerations
that could make the trial easy, expeditious, or inexpensive;
the relative administrative difficulty in the two fora
resulting from court congestion; the local interest in
deciding local controversies at home; the public policies of
the fora; and the familiarity of the trial judge with the
applicable state law in diversity cases.
Id. at 879-880.
party seeking transfer bears the burden “to establish
that a balancing of proper interests weigh[s] in favor of
transfer.” Shutte v. Armco Steel Corp., 431
F.2d 22, 25 (3d Cir. 1970). This is a heavy burden. Indeed,
although courts have “broad discretion to determine, on
an individualized, case-by-case basis, whether convenience
and fairness considerations weigh in favor of transfer,
” Jumara, 55 F.3d at 883, the Third Circuit
has held that “unless the balance of convenience of the
parties is strongly in favor of [the] defendant, the
plaintiff's choice of forum should prevail.”
Shutte, 431 F.2d at 25.
initial matter, there is no dispute that this case could have
been brought in the Northern District of California. Thus,
the issue before the Court is whether to exercise discretion
under § 1404(a) to transfer this case to that district.