Judge Noreika granted a motion to transfer yesterday in a case against an Equifax entity, where 3 of the Third Circuit's Jumara factors favored transfer, and only one (plaintiff's choice of forum) weighed against.
My first thought was—Did the plaintiff really have only one factor in it's favor?
Judge Noreika usually credits the fact that the Defendant is a Delaware corporation, and I thought Equifax was one.
Turns out, so did plaintiff. The complaint lists the defendant as a Delaware corporation. But—as the Court notes—Equifax Information Services is actually a Georgia entity. Plaintiff messed up.
So the transfer makes sense. The plaintiff is Hawaiian, meaning that the only factor favoring Delaware was plaintiff's choice of forum. And it's hard for that choice to outweigh the other factors even though, as the Court pointed out, it gets "paramount consideration" under Third Circuit precedent.
The Jumara Factors Are Kind of Brutal
The math on transfer motions can be tough, especially for non-Delaware entities. In many patent cases the only factors plaintiffs have in their favor are their choice of forum and the fact (often) that the plaintiff and one or more defendants are incorporated here.
Otherwise the factors tend to favor defendants. They get a freebie in "defendant's choice of forum" (always "not here"), and they sometimes get credit for where the accused products were developed (almost always "not Delaware").
Defendants may also get something for convenience of the witnesses (inventors unavailable absent subpoena) or good old "location of books and records" (Judge Noreika, for example, has credited hard-to-transport accused products). At that point the math starts to look bad.
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