CORNERSTONE THERAPEUTICS INC., CORNERSTONE BIOPHARMA, INC., and EKR THERAPEUTICS, LLC, Plaintiffs, v. EXELA PHARMA SCIENCES, LLC, EXELA PHARMSCI, INC., and EXELA HOLDINGS, INC., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ORDER Civil Action No. 13-1275-GMS On July 24, 2013, the Plaintiffs Cornerstone Therapeutics Inc., Cornerstone Biopharma, Inc., and EKR Therapeutics, LLC ("Cornerstone") filed a patent infringement suit against the Defendants Exela Pharma Sciences, LLC, Exela PharmSci, Inc., and Exela Holdings, Inc. ("Exela") alleging infringement of U.S. Patent Nos. 7,612,102 ("the '102 patent") and 7,659,291 ("the '291 patent"). (D.I. 1.) On August 19, 2013, Cornerstone amended its Complaint to allege infringement ofU.S. Patents Nos. 8,455,524 ("the '524 patent") and 7,659,290 ("the '290 patent"). (D.I. 19.) Presently before the court is Exela's Motion to Transfer. (D.I. 12.) For the following reasons, the court will deny Exela's motion. As 28 U.S.C. 1404(a) provides, "[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." In order to decide whether to transfer a case under this Section, the court first determines "whether the action could have been brought originally in the proposed transferee forum." Linex Technologies, Inc. v. Hewlett-Packard Co., No. 11-400-GMS, 2013 WL 105323, at * 1 (D. Del. Jan. 7, 2013). The court then considers the private and public interests provided by the Third Circuit in Jumara v. State Farm Insurance Company. 55 F.3d 873, 879 (3d Cir. 1995). Of the private interests that the court may consider, the interests relevant to resolving the instant motion are the parties' choice of forum, where the claim arose, the convenience of the parties, the convenience of witnesses, and the location of books and records. !d. Of the public interests detailed in Jumara, the key interests here are practical considerations that could make the trial expeditious and the relative administrative difficulties in the two fora. Cornerstone alleges, and Exela does not expressly deny, that this action could have been brought in North Carolina. (D.I. 13 at 5-6; D.l. 21 at 6-7.) Thus, the court proceeds to weigh the Jumara factors. Although Cornerstone's choice of Delaware is not entitled to the usual paramount deference because none of the plaintiffs are physically located in Delaware, see Linex Technologies, 2013 WL 105323, at *3, Cornerstone's choice is nonetheless entitled to greater weight than Exela's choice ofNorth Carolina. See, e.g., Tessera, Inc. v. Sony Elecs., Inc., No. 10- 838-RMB-KW, 2012 U.S. Dist. LEXIS 46234, at* 11 (D. Del. Mar. 30, 2012). Regarding where the claim arose, since ANDA cases mainly involve constructive infringement, courts examine where the ANDA submission was submitted. See Abbott Labs. v. Roxane Labs., No. 12-457-RGA-CJB, 2013 U.S. Dist. LEXIS 74316, at *67-68 (D. Del. May 28, 2013). Here, both parties acknowledge that the Exela application was prepared and filed in North Carolina, so this factor weighs in favor of transfer there. (D.I. 13 at 7; D.l. 21 at 10-11.) The next factor-the convenience of the parties--does not weigh in favor of transfer, however. As Cornerstone rightly observes, (D.I. 21 at 11-12), the decision of two out of three defendants to incorporate in Delaware casts doubt on their arguments that litigating in this state is inconvenient. See Micron Tech. v. Rambus, Inc., 645 F.3d 1311 (Fed. Cir. 2011) (Explaining that parties' decision to incorporate in Delaware indicates they have willingly submitted to suit there.) In addition, the only defendant not incorporated in Delaware, Exela PharmSci, Inc., can hardly argue that litigating in Delaware is inconvenient. Exela PharmSci, Inc. is incorporated only a short distance away in Virginia, and has no physical presence anywhere. (D.I. 21 at 12.) Just as where the claim arose and the convenience of the parties weigh against transfer, both the convenience of witnesses and the location of books and records also counsel against transferring this matter. Exela has not identified any witnesses that could not be made available in Delaware. (D.I. 13 at 13.) Thus, the convenience of the witnesses cannot be a basis for transfer here. See Jumara, 55 F.3d at 879 (Explaining that the convenience of the witnesses is a basis for transfer "only to the extent thee witnesses may actually be unavailable for trial in one of the fora[.]") Regarding the location of books and records, this factor is relevant and weighs in favor of transfer only to the degree that these books and records cannot be produced in Delaware. See, e.g., Cradle IP, LLC v. Texas Instruments, No. 11-1254-SLR, 2013 U.S. Dist. LEXIS 19245, at *10-11 (D. Del. Feb. 13, 2013) (Explaining that the location of books and records weighs against transfer where there is no indication that the parties would "experience[] any difficulty in conducting electronic discovery.") Although Exela claims that the relevant documents are maintained in North Carolina, (D.I. 13 at 13-14), it has not explained why these documents could not be transmitted electronically or otherwise made available in Delaware. Regarding the public interest factors, Exela argues that the Western District of North Carolina is "likely to be a more convenient forum for a majority of the witnesses[.]" (D.I. 13 at 10-11.) The inventors do not reside in North Carolina, however, (D.I. 21 at 5 (noting that all of the named inventors reside in either Illinois or California)), and Exela does not specify which of its employees in North Carolina will be required at trial, (D.I. 13 at 10-11). The court cannot conclude that Exela's vague assertions regarding the convenience of undisclosed witnesses weigh in favor of disregarding Cornerstone's forum choice and transferring this matter. Also unavailing are Exela's arguments regarding the congestion of the docket in Delaware. (D.I. 13 at 11-12.) Although the number of cases per judge and time to trial are greater in Delaware, it is undisputed that Delaware judges have much greater familiarity with patent cases by virtue of their patent- heavy dockets. As Cornerstone observes, "this Court's patent expertise will undoubtedly result in administrative efficiencies." (D .I. 21 at 19.) All things considered, the court concludes that Exela has not demonstrated that this matter should be transferred to the Western District of North Carolina. IT IS HEREBY ORDERED THAT Exela's Motion to Transfer, (D.I. 12), is DENIED. Dated: June J../2_, 2014 E
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