In an opinion today, Judge Andrews laid out his updated thoughts on transfer motions, particularly in light of COVID-19 travel restrictions and the related difficulties.
Here are some interesting points re: his views:
- In granting transfer, he focused on the fact that the Plaintiff's principal place of business was not Delaware
- He held that convenience of counsel is irrelevant, because parties can choose their counsel.
- As far as court congestion, he noted that "[o]ne other Delaware judge and I each individually had more old cases than the entire Western District [of Washington]," and that the Judicial Conference has recommended a new judge here but none there.
He has previously discounted Delaware's efforts to promote incorporation here as a public policy factor, and did so again, but in particularly clear terms:
While I think that Delaware’s public policy clearly is to promote incorporation in Delaware and to provide respected courts for the resolution of business disputes involving Delaware corporations, I think that is a policy that is implemented through Delaware’s state courts. The federal system is not within the State’s purview.
Lastly, he outlined his difficulties in scheduling trials in light of COVID-19:
I have been struck recently by the difficulties in trying cases where everybody is coming from somewhere else. See Sprint Comms. Co. v. Charter Comms., Inc., Civ. Act. No. 17-1734-RGA, D.I. 545 (D. Del. Sept. 2, 2020) (postponing trial where there would be “no one from Delaware but me, court staff, and the jury”) . . . . While I am optimistic that the specific reason that required those trials to be postponed will subside at some point, the postponements do support the common sense proposition behind § 1404, which is that trying cases in distant locations can be inconvenient.
It's worth noting that any change in the transfer calculus, if it sticks, could have broad effects on the number of patent cases in Delaware. The Jumara transfer factors are already kind of brutal for plaintiffs, and any further tilt towards defendants could result in significantly more transfers.
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