Judge Sleet recently granted Nintendo’s motion to transfer to the Western District of Washington in a case filed against Nintendo by Slovak-Republic-based Ithaca Development. Ithaca Ventures k.s. v. Nintendo of Am. Inc., C.A. No. 13-824-GMS, Memo. Op. at 14 (D. Del. Sept. 25, 2014). Judge Sleet first “agree[d] with Nintendo that Ithaca’s forum choice should not be afforded maximum deference. Even though Ithaca Development is organized under Delaware law, its principal place of business being in Texas diminishes the plaintiffs’ argument that it is at home in Delaware. And Ithaca Development’s organization under Delaware law mere weeks before filing this lawsuit further undermines its position, suggesting to the court that its organization here was motivated significantly by the instant litigation.” Id. at 4. In light of these facts, Judge Sleet concluded that “Ithaca’s forum selection is entitled to some degree of heightened deference, but not to ‘paramount consideration.’” Id. at 4-5.
Among the other factors considered in a transfer analysis, Nintendo’s forum preference clearly favored transfer. Id. at 5. The location where the claims “arose” favored transfer slightly because Nintendo marketed and developed the accused products in Washington, although they were designed and manufactured in Japan. Id. at 5-6. The convenience of the parties also weighed in favor of transfer because Nintendo had an office in Washington where several witnesses worked or could work and Ithaca, by contrast, had no contacts with Delaware. Id. at 6-8. Additionally, Nintendo established that the convenience of witnesses factor favored transfer by showing that it expected a third party witness to have relevant testimony and that the witness was within the subpoena power of the Western District of Washington. Id. at 8-9. Further, the location of Nintendo’s books and records in Washington also favored transfer. Id. at 9-10. Finally, the “congestion” of the District of Delaware’s docket, as compared to the Western District of Washington, weighed slightly in favor of transfer. Id. at 11-12. The remainder of the Third Circuit’s Jumara factors were neutral. Id. at 11-14.
In sum, Judge Sleet explained: “Considering the Jumara factors as a whole, the court concludes that the defendants have met their burden of demonstrating that the interests of justice and convenience strongly favor transfer. Only Ithaca’s forum preference weighs against transfer and, as the court explained above, that preference does not warrant maximum deference in this case. Ithaca’s attempt to manufacture venue by organizing in Delaware just before filing suit mitigates the weight of its choice of forum. In contrast, several factors counsel in favor of transfer.” Id. at 14. Judge Sleet also denied a Rule 11 motion filed by Nintendo as moot in light of the transfer, indicating that the Western District of Washington was the correct venue for the Rule 11 motion once Judge Sleet had found transfer was justified. Id. at 15 n.4.