In a recent memorandum opinion, Chief Judge Gregory M. Sleet transferred a case to the Northern District of California, although the plaintiffs could not clearly have filed suit in that district in the first place. ChriMar Systems, Inc., et al. v. Cisco Systems, Inc., et al., C.A. No. 11-1050-GMS (D. Del. Mar. 6, 2013). The Court noted that 28 U.S.C. § 1404(a) provides that an action can be transferred to “any other district or division where it might have been brought[,]” id. at 5, as “measured from the time the action was commenced . . . .” Id. at 6 n.3. In this case, the plaintiffs were Michigan and Texas entities, and one of the original defendants was a Delaware corporation headquartered in New Jersey, which could not clearly have been sued by the plaintiffs in the Northern District of California. Id. at 6 n.3. That Delaware/New Jersey defendant settled with the plaintiffs and was dismissed from the case before the motion to transfer was filed. Id. at 2. As the Court explained, “an exception to the general timing rule . . . exists and ‘the action may . . . be transferred if the defendants as to whom venue in the transferee district would have been improper have settled or been dismissed from the action when the transfer motion is made.’” Id. at 6 n.3 (quoting 17 James Wm. Moore et al., Moore’s Federal Practice § 111.12[b] (3d ed. 2012)). Because all three remaining defendants maintained their principal places of business within the Northern District of California, the Court found that transfer to that district would be permissible under § 1404(a). Id. at 6.
The Court next considered whether transfer to the Northern District of California would be appropriate based on the Third Circuit’s Jumara factors. The Court noted that the plaintiffs’ choice of forum in Delaware was entitled to “increased weight . . . but less than the ‘substantial’ or ‘paramount’ weight to which it would be entitled had [they] filed suit in [their] home forum.” Id. at 8. However, the Court found that the rest of the Jumara factors were neutral or weighed in favor of transfer, most notably because: (a) the remaining defendants maintained principal places of business in the Northern District of California, id. at 9; (b) the plaintiffs “will be forced to bear travel costs no matter the court’s decision, but proceeding in California will likely spare the defendants significant expense[,]” id. at 10; and (c) the defendant provided information about third party witnesses who would not be subject to a trial subpoena issued by the District of Delaware. Id. at 11. The Court explained, “[w]hile the first factor – the plaintiffs’ forum preference – pulls against transfer and is given increased weight here [because two of the remaining defendants were Delaware corporations], all the remaining Jumara considerations recommend transfer or have no effect on the court’s analysis.” Id. at 14.