The vacancies on the D. Del. bench over the past several years are well known. What may not be appreciated, however, is that even with these vacancies, key litigation benchmarks (such as time-to-trial) have not been visibly affected. This is due in part to the contributions of many E.D. Pa. and D.N.J. district judges that have stepped in temporarily to fill the void.
Given this system of rotating visiting judges, is not surprising that E.D. Pa. district judge Robert F. Kelly Sr. issued a decision declining to find that the current state of affairs in Delaware warranted transfer to another jurisdiction.
Presiding in the underlying D. Del. infringement action, the Court noted that court congestion was not a reason to favor a transfer:
“[T]he court congestion factor is neutral in light of the statistical evidence provided by the parties. Although the parties presented various arguments and statistical reports concerning court congestion in the fora at issue, neither side clearly shows that the administrative difficulty resulting from court congestion weighs in favor of one forum over the other. It is important to note, however, that even though there is presently a backlog of cases in Delaware, the cases are being assigned to other district courts in the Third Circuit which are capable of efficiently and expeditiously managing the cases.”
Although the Court never explicitly mentioned the past vacancies, it did emphasize that, with the visiting judges in place, concerns about backlogs are unfounded.