In Gian Biologics, LLC v. Biomet Inc., C.A. No. 10-865-LPS (D. Del. Jun. 21, 2011), Judge Stark issued a Memorandum Order staying the case pending resolution of the defendant Biomet, Inc.’s motion to dismiss and the defendant Biomet Biologics, LLC’s motion to transfer venue.
In its motion to transfer venue, the defendant argued that the plaintiff had incorporated in Delaware less than four months before filing its lawsuit, which the defendant characterized as creating only a “litigation-contrived and de minimis connection to Delaware.” Id. at 3 (quoting defendant’s opening brief in support of motion to transfer venue). The plaintiff failed to dispute this allegation until oral argument, id. at 4, even after the defendant reiterated the allegation in its reply brief and “reasonably constru[ed] [the plaintiff’s] silence on this point as a concession that [the plaintiff’s] decision to incorporate in Delaware was, indeed, litigation-contrived[.]” Id. at 5.
The plaintiff “belatedly” sought to supplement the record with “evidence of its reasons for incorporating in Delaware[,]” which Judge Stark allowed. Id. Nonetheless, while noting that he had “significant doubt as to whether this case should remain in Delaware[,]” Judge Stark stayed the case until resolution of the motion to transfer venue. Id.