In denying motion to transfer, Judge Sleet explains the divergence of approaches in Delaware considering motions to transfer under 28 U.S.C. §1404(a)
Chief Judge Gregory M. Sleet recently denied defendant Apple Inc.’s motion to transfer the case to the Northern District of California. Smart Audio Technologies, LLC v. Apple, Inc., C.A. No. 12-134-GMS (Nov. 16, 2012). In its opinion the Court discussed the evolution of its decisions since Jumara was decided, concluding that “judges within this district have made subtle adjustments to the language employed in performing the transfer analysis,” although “the substance of the inquiry has remained constant.” Id. at 3. Specifically, Delaware judges have issued decisions “along two methodological branches . . . the ‘Affymetrix approach’ and the ‘modern approach.’” Id. at 5. Judge Sleet noted that under both approaches, the Court weighs the “balance of convenience” by looking at the Jumara factors and then makes the determination of whether the balance is tipped in favor of transfer. Id. at 6. The approaches differ, however, in how they consider plaintiff’s choice of forum. Under the Affymetrix approach, plaintiff’s choice of forum is “the paramount consideration” and is separated from the weighing of the other Jumara factors. Id. This factor establishes the defendant’s burden, such that the defendant is required “to demonstrate that the interests of justice and convenience weigh strongly in favor of transfer[,]” despite plaintiff’s forum selection. Id. at 7 (emphasis in original). The modern approach, however, “treats the plaintiff’s forum preference as an independent Jumara factor to be considered within the balance of convenience analysis[,] but imposes the same heavy burden on defendant. Id. at 7-8. The modern approach only gives plaintiff’s forum choice increased weight when the plaintiff has chosen to litigate on its home turf or selected the forum for “other rational and legitimate reasons.” Id. at 9. Judge Sleet noted that the differences of the two approaches is not troubling because any difference would fall within the Court’s discretion to decide whether transfer is warranted, and the balance of factors “is a fundamentally case-by-case, fact-specific inquiry.” Id. at 10.
Regarding the case at hand, Plaintiff Smart Audio, a Texas company with a principal place of business in Texas, argued that its forum choice should be given deference because Smart Audio had rational and legitimate reasons for litigating in Delaware. Id. at 12. Judge Sleet noted that while Smart Audio’s forum choice, as a Jumara factor, is entitled to “something more than minimal weight” for having rational reasons to sue in Delaware, its forum choice is not entitled to the substantial deference had Smart Audio sued on its home turf. Id. at 12-13 (citing In re Link_A_Media Devices Corp., 662, F.3d. 1221 (Fed. Cir. 2011)). Judge Sleet then discussed the remaining Jumara factors. Regarding where the claim arose, Judge Sleet concluded that the factor weighed slightly in favor of transfer because “while the infringing products were sold nationwide, at least some of the research and development activities relating to those products occurred in the proposed transferee district.” Id. at 14-15. Likewise, the location of books and records factor weighed slightly in Apple’s favor because “its documents relating to the design and development” of the accused products are located in California. Id. at 17-18. However, certain public interest factors weighed strongly against transfer, such as the existence of related lawsuits in Delaware. The remaining factors were either inapplicable or neutral. The Court ultimately concluded that transfer was not warranted: “Even if the court could say that the balance of convenience tilts somewhat toward transfer, Apple certainly has not shown that the interests of convenience and justice strongly favor its position.” Id. at 21.