Contour IP Holding, LLC et al v. GoPro, Inc.
MEMORANDUM ORDER re 154 Memorandum Order is ADOPTED; 83 MOTION to Transfer Venue to The Northern District of California filed by GoPro, Inc. is GRANTED. Signed by Judge Leonard P. Stark on 7/31/17. (ntl)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT .OF DELAWARE
CONTOUR IP HOLDING, LLC,
C.A. No. 15-1108-LPS-CJB
WHEREAS, Magistrate Judge Burke issued a 30-page Memorandum Order (the "Order")
(D.I. 154), dated July 6, 2017, granting Defendant GoPro, Inc.'s ("Defendant" or "GoPro")
motion to transfer venue to the United States District Court for the Northern District of
California pursuant to U.~.C. § 1404(a) (D.1. 83);
WHEREAS, on July 20, 2017, Plaintiff Contour IP Holding, LLC ("Plaintiff' or "CIPH")
objected to the Order (D.I. 169) ("CIPH Objections" or "CIPH Objs");
WHEREAS, on July 27, 2017, GoPro responded to CIPH's Objections (D.1. 173)
("GoPro Response" or "GoPro Resp");
WHEREAS, a decision on a motion to ~ransfer is non-dispositive, see TSMC Tech., Inc.
v. Zond, LLC; 2015 WL 328334, at *1 (D. Del. Jan. 26, 2015), and the Court has considered the
parties' objections and responses for clear errors oflaw and clearly erroneous findings of fact,
see St. Clair Intellectual Prop. Consultants, Inc. v. Matsushita Elec. Indus. Co., Ltd., 691 F.
Supp. 2d 538, 541-42 (D. Del. 2010); 28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(b)(3);
NOW.THEREFORE, IT IS HEREBY ORDERED that:
CIPH's Objections (D.I. 169) are OVERRULED, Judge Burke's Order (D.I. 154)
is ADOPTED, and GoPro's motion to transfer venue to the Northern District of California (D.I.
83) is GRANTED.
CIPH objects to the Order on two principal grounds, asserting that insufficient·
consideration was given to (1) CIPH' s choice of forum, and (2) GoPro' s incorporation in
Delaware. (CIPH Objs at 4-8) CIPH asserts that each of these grounds results in clearly
erroneous factual findings and errors of law. (Id.) The Court disagrees.
CIPH asserts that, contrary to the Order's findings, several considerations played
into its choice of forum. (Id. at 4) While CIPH' s recently-stated considerations may be "rational
and legitimate reasons for choosing Delaware" (id.), the Order's finding that "these were not the
reasons motivating the filing of this case in this Court" (Order at 15) is not clearly erroneous.
Instead, CIPH and former co-Plaintiff iON Worldwide, Inc. ("iON") maintained throughout
litigation- beginning with the filing of their Complaint (D.I. 1 at if 22) and continuing through
the most recent oral argument on the renewed Motion for Costs (see, e.g., Order at 13 n.9) - that
the reason they selected this forum was due to iON's preference, as an entity incorporated in
Delaware, to litigate in a convenient location. (Id. at 12-13) The Court agrees with the Order's
finding that, due to iON no longer being a party to the litigation, "this reason no longer ha[s] any
real resonance," and CIPH's newly-emphasized reasons for litigating here "ha[ve] caused the
Court to question CIPH's credibility on this front." (Id. at 14, 16)
Further, the Order's conclusion that CIPH emphasized former co-PlaintiffiON's
preference for Delaware in order not to draw greater scrutiny and skepticism of the various
plaintiffs' forum decisions in Utah and Delaware (see, e.g., id. at 15-16) is not clearly erroneous
but, rather, highly persuasive. While CIPH asserts that it has continuously maintained that
GoPro' s incorporation in Delaware was an additional reason supporting its choice of forum, this
reason (like all that CIPH offers other than iON's choice of forum) "would have beenjust as
available at a time when Contour sued GoPro in the Utah Action." (Id. at 15; see also GoPro
Resp at 4)
Somewhat relatedly, CIPH finds error in the Order's conclusion that "where (as
here) a significant event occurs after the case's filing (and, in this case, before the filing of the
instant transfer Motion) and bears on the transfer analysis, [such as iON being dismissed from
·the case with prejudice,] it would be wrong for the Court not to consider it." (Order at 14 n.10)
Again the Court disagrees. No authority compels the Court to ignore - as part of its case-bycase, individualized assessment of transfer-related factors, including the non-exhaustive list of
Jumara factors - a highly pertinent post-complaint development such as the dismissal of the
party whose forum preference has repeatedly been identified by Plaintiff as important to the
CIPH also asserts that GoPro's incorporation in Delaware.should have been.given
more weight in several Jumara factors, namely, the defendant's forum preference, the
convenience of the parties, and local interests in deciding local co1:1troversies at home. (CIPH
Objs at 7) Regarding Defendant's forum preference, the Court's examination involves "whether
the defendant can articulate rational, legitimate reasons to support that preference," not simply
examining where the defendant is incorporated. Pragmatus AV, LLC v. Yahoo! Inc., 2012 WL
4889438, at *6-7 (D. Del. Oct. 15, 2012) (finding- in similarly considering Defendant's
incorporation in Delaware, but preference to litigate elsewhere - "the appropriate place to focus
in examining this factor is not on the forum that a defendant does not prefer ... , but on the
forum it does prefer"). Because GoPro articulated legitimate reasons for seeking to transfer the
action to the Northern District of California, the Order properly weighed GoPro's preference.
(Order at 16) Regarding CIPH's remaining arguments, the Order properly considered GoPro's
incorpo,ration in Delaware and weighed that fact against competing factors favoring transfer. 1
CIPH' s arguments regarding the appropriate weight of GoPro' s incorporation do not support a
finding that the Order's conclusion was clearly erroneous or an error of law.
The Court has considered each of the other arguments raised by CIPH in its
Objections and, applying the appropriate standard ofreview, finds that each of them lacks merit
and requires no further discussion.
July 31, 2017
UNITED STATES DISTRICT JUDGE
Specifically, the Order's ultimate conclusion that the convenience of the parties slightly favored
transfer was properly supported by the Order's other findings that GoPro "has its principal place
of business in the Northern District of California," and "a good percentage of possible employee
witnesses/representatives on both sides are located closer to the Northern District of California."
(Order at 20-21) The fact that GoPro "abandoned California in favor of Delaware six years ago"
(CIPH 9bjs at 8) does not alter these facts. Similarly, regarding the local interest factor, the
Order properly considered GoPro' s choice not to avail itself of the benefits of being a Delaware
corporation. However, even if the local interest factor was considered neutral (as CIPH argues it
should have been (see id. at 9)), instead of "slightly favor[ing] transfer," that would not change
the overall balance of the Jumara factors, none of which weighed against transfer.
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