U.S. District Court for the District of Delaware Grants Venue Change in Facebook Patent Litigation

From yesterday's post, detailing what might be humanity's earliest change of venue, to today's, with one of the latest... 

From Thompson Reuters:

In the latest sign that judges are scrutinizing plaintiffs' forum choices in patent litigation, Facebook Inc. has persuaded a Delaware judge to transfer a patent infringement case to California.
While communications software company Mitel Networks Corp. had sought to keep the case in Wilmington, Delaware, U.S. District Judge Gregory Sleet agreed with Facebook that the location of documents and witnesses made the Northern District of California the more convenient forum for the litigation.
Delaware is one of plaintiffs' most preferred forums in intellectual property litigation, as it is considered friendly to patent owners and its judges tend not to grant summary judgment early in the litigation.

The case, Mitel Networks Corp. v. Facebook, Inc., No. 12-325. (D.Del.) is particularly noteworthy because of its procedural history.  Plaintiff Mitel Networks Corp. filed suit originally in the District of Delaware, probably based on the factors noted above and alleging patent infringement by Facebook.  Facebook, however, filed a subsequent patent infringement suit against Mitel in the Northern District of California, then promptly filed a motion in Delaware to transfer the pending Delaware matter.  Facebook claimed that the location of documents and witnesses (mostly in California) and other factors weighed in favor of such a transfer.

Generally, courts favor transfering a case to a venue where another, related case, filed prior to the case being transferred, is pending.  See, e.g., Tingley Systems, Inc. v. Bay State HMO Management, Inc., 833 F.Supp. 882 (M.D. Fla. 1993).  Here, the Court found that the totality of the circumstances favored transferring to the Northen District of California, despite the fact that the other litigation was subsequently filed:

While the court did not specifically address the propriety of Facebook's litigation strategy, it did find that the fact Facebook's likely witnesses are largely located in California, as are documents related to the lawsuit, including its "highly proprietary information and source code," weighed in favor of transferring the case.

Like the Court, we will refrain from addressing the propriety of Facebook's litigation strategy, except to note (as does Thompson-Reuters) that this is not the first time it was employed:

Yahoo Inc also sued Facebook in March 2012, claiming infringement of 10 patents. That lawsuit was filed in the Northern District of California. Much like in the Mitel litigation, Facebook retaliated less than a month later by filing a countersuit claiming that Yahoo was infringing several Facebook patents. Those suits settled in July, according to court records.

Practitioners should be aware of the possibility of transfer (even for subsequently-filed actions) and plan for such situations.