In a forum non conveniens analysis, (1) a plaintiff´s attempt to manipulate venue in anticipation of litigation or a motion to transfer by copying and sending discovery documents to the preferred venue cannot affect venue determination, and (2) venue was not proper in a “decentralized case” where the sole connections with the initial forum were allegedly infringing sales and the ability to subpoena a single witness to trial, and where the proposed transferee forum had a strong local interest in the outcome of the litigation and “absolute subpoena power” over four likely witnesses.
In re Hoffmann–La Roche Inc., et al., Miscellaneous Docket No. 911 (Fed. Cir. Dec. 2, 2009)
Plaintiff brought a patent infringement suit in the Eastern District of Texas involving an HIV inhibitor drug sold throughout the United States. The defendant filed a motion to transfer to the Eastern District of North Carolina alleging forum non conveniens. The district court denied the motion, but the Federal Circuit reversed granting a writ of mandamus for the transfer. The district court had found that the case was “decentralized” and that no particular forum was materially more convenient than another. The Federal Circuit pointed to several factors favoring transfer. First, the accused drug was developed and tested within the Eastern District of North Carolina thereby rendering strong that district´s “local interest” in the case. Meanwhile, the Eastern District of Texas had no such connection or interest other than the mere fact that the drug was sold there as it was in other cities throughout the country. Second, at least four potentially material, non–party witnesses resided within 100 miles of the Eastern District of North Carolina and thus were subject to the court´s “absolute subpoena power” — subpoena power “for both deposition and trial” — whereas only one non–party witness was subject to a trial subpoena (though not a deposition subpoena) in the Eastern District of Texas. Lastly, North Carolina´s less congested docket may help speed resolution of the case. In granting the writ, the Federal Circuit rejected the district court´s reliance on the presence of a significant number of documents in the Eastern District of Texas where the plaintiff, in anticipation of the litigation, copied 75,000 relevant pages in California and sent them to Texas electronically. The plaintiff later claimed them as “Texas documents” to oppose transfer. The Federal Circuit saw this as an attempt by the plaintiff “to manipulate venue in anticipation of litigation or a motion to transfer” — clearly “prohibited activity.”
A copy of the opinion can be found here.