Realtime Data LLC v. Fortinet, Inc.

Filing 33

MEMORANDUM OPINION. Signed by Judge Colm F. Connolly on 10/31/2018. (fms)

IN THE UNITED STATES DIST;RICT COURT
FOR THE DISTRICT OF DELAWARE
REALTIJ\.ffi DATA LLC, cl/b/a IXO,
Plaintiff,

v.

Civil Action No. 17-163 5-CFC

FORTINET, INC.

Defendant. :

Stephen B. Brauerrnan, Sara E. Bussiere, BAYARD, P.A., Wilmington, Delaware;
Mark A. Fenster, Paul A. Kroeger, Reza Mirzaie, RUSS, AUGUST & KABAT,
Los Angeles, California

Counsel for Plaintiff
Jack B. Blumenfeld, MORRIS, NICHOLS, ARSHT & TUNNELL LLP,
Wilmington, Delaware; John (Jay) Neukom, William J. Casey, SKADDEN, ARPS,
SLATE, l\.ffiAGHER & FLOM LLP, Palo Alto, California

Counsel for Defendant

MEMORANDUM OPINION

CONNOLLY, UNITED TES DISTRICT J

OCTOBER 31, 2018

Realtime Data LLC has sued Fortinet, Inc., a Delaware corporation, for
patent infringement. Fortinet has moved pursuant to 28 U.S.C. § 1404(a) to
transfer this case to the Northern District of California-where Fortinet is
headquartered, has its principal place of business, and can produce its witnesses
and documents more easily. Realtime has pending suits against other defendants in
the Northern District alleging violations of some of the same patents that are at
issue here, but it has many more such suits pending in this District before me. For
the reasons discussed below, I will deny Fortinet's motion to transfer (D.1. 14).
Section 1404(a) provides that "[f]or the convenience of the parties and
witnesses, in the interests of justice, a district court may transfer any civil action to
any other district or division where it might have been brought." 28 U.S.C. §
1404(a). It is undisputed that this action could have been brought in the Northern
District of California. Thus, the only issue before me is whether I should exercise
my discretion under§ 1404(a) to transfer the case to California.
F ortinet has the burden "to establish that a balancing of proper interests
weigh[s] in favor of the transfer." Shutte v. Armco Steel Corp., 431 F .2d 22, 25

(3d Cir. 1970). This burden is heavy. "[U]nless the balance of convenience of the
parties is strongly in favor of [the] defendant, the plaintiffs choice of forum should
prevail." Id. (emphasis in original) (internal quotation marks and citation omitted).
The proper interests to be weighed in deciding whether to transfer a case
under§ 1404(a) are not limited to the three factors recited in the statute (i.e., the
convenience of the parties, the convenience of the witnesses, and the interests of
justice). Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995).
Although there is "no definitive formula or list of the factors to consider" in a
transfer analysis, the court in Jumara identified 12 interests "protected by the
language of§ 1404(a)." Id. Six of those interests are private:
[ 1] plaintiffs forum preference as manifested in the
original choice; [2] the defendant's preference; [3]
whether the claim arose elsewhere; [4] the convenience
of the parties as indicated by their relative physical and
financial condition; [5] the convenience of the
witnesses-but only to the extent that the witnesses may
actually be unavailable for trial in one of the fora; and [6]
the location of books and records (similarly limited to the
extent that the files could not be produced in the
alternative forum).
Id. (citations omitted). The other six interests are public in nature:
[7] the enforceability of the judgment; [8] practical
considerations that could make the trial easy, expeditious,
or inexpensive; [9] the relative administrative difficulty
in the two fora resulting from court congestion; [10] the
local interest in deciding local controversies at home;
[11] the public policies of the fora; and [12] the

2

familiarity of the trial judge with the applicable state law
in diversity cases.

Id. at 879-80 (citations omitted). As the parties have not identified relevant factors
beyond these 12 interests, I will balance the Jumara factors in deciding whether to
exercise the discretion afforded me by§ 1404(a).

I.

PLAINTIFF'S FORUM PREFERENCE

This factor clearly weighs against transfer. The parties agree on that much.
They disagree, however, about the amount of weight I should give this factor in
conducting the balancing of interests called for by Jumara. F ortinet argues that
Realtime's forum choice "should receive little weight." D.I. 15 at 5. Realtime
contends that I should give its forum choice "paramount consideration." D.I. 20 at

4_ 1
In Shutte, the Third Circuit held that "[i]t is black letter law that a plaintiffs
choice of a proper forum is a paramount consideration in any determination of a
transfer request" brought pursuant to § 1404(a), and that this choice "should not be
lightly disturbed." 431 F.2d at 25 (internal quotation marks and citation omitted).
The parties have not cited and I am not aware of any Third Circuit or United States
Supreme Court case that overruled Shutte. Jumara cited Shutte favorably and

1

Elsewhere, Realtime argues that its forum choice "is entitled to substantial
deference," D.I. 20 at 1, and similarly that "its preferred forum is entitled, at a
minimum, to significant deference," D.I. 20 at 5 (emphasis in original) (internal
quotation marks and citation omitted).
3

reiterated Shutte' s admonition that "the plaintiffs choice of venue should not be
lightly disturbed." Jumara, 55 F .3d at 879 (internal quotation marks and citation
omitted). Thus, I agree with Realtime that binding Third Circuit law compels me
to treat its forum choice as "a paramount consideration" in the § 1404(a) balancing
analysis.
F ortinet, however, asks me to ignore Shutte' s unambiguous language (and

Jumara's endorsement of Shutte) and instead give Realtime's forum choice "little
weight" because ( 1) Realtime has not "offer[ed] evidence explaining its rationale"
for choosing the District of Delaware as a forum, D.I. 23 at 2-3; see also id. at 2
("Although the cases cited by Realtime state that 'the court should not consider
simply the fact of that choice, but the reasons behind that choice,' Realtime fails to
provide the court with any rationale for its choice of forum." (emphasis in
original)); (2) the District of Delaware is not Realtime's "home turf," D.I. 15 at 45; D.I. 23 at 2; and (3) the facts underlying the parties' dispute did not occur in
Delaware, D.I. 15 at 4-5; D.I. 23 at 2.

A.

Realtime's Rationale for Choosing this District

Fortinet cites a line of cases in which district court and magistrate judges in
the Third Circuit looked to "the reasons behind" a plaintiffs forum choice and
gave reduced or even no weight to a plaintiffs forum selection if the plaintiff did
not have "legitimate, rational concerns" in choosing the forum. See D.I. 23 at 2-3

4

(citations omitted). I find, however, that these cases are not consistent with Shutte,

Jumara, or Supreme Court precedent.
Neither Shutte nor Jumara hold or even intimate that a plaintiff's rationale
or motive in selecting its forum choice is relevant for§ 1404(a) purposes. Putting
aside the practical difficulty of accurately discerning a plaintiff's rationale, to my
knowledge the Third Circuit has not held, and I do not believe, that a plaintiff's
rationale in selecting a forum is relevant to the transfer inquiry.
The availability of multiple lawful venues is a fundamental feature of our
federal system that invites competent counsel to advise their clients to select the
litigation forum that best aligns with the clients' interests. When choosing among
available venues, plaintiffs understandably-and legitimately-weigh a host of
considerations, including, for example, the laws that would apply in the competing
venues, the relative speed with which the venues move cases, the manner in which
the venues handle discovery disputes, the scope of discovery allowed by the
venues, and the plaintiffs' assessments of the venues' judges and the likelihood
those judges would rule in the plaintiffs' favor. Every sophisticated plaintiff that
can bring a lawsuit in multiple venues engages in forum shopping when it chooses
a particular venue. The Court's concern is whether the venue choice is permitted
by statute, not what motivated the plaintiff to select the venue.

5

The principle that a plaintiff can lawfully engage in forum shopping is
sufficiently fundamental to our federal system that the Supreme Court has called
the plaintiff's choice of forum a "venue privilege." See At!. Marine Constr. Co. v.

U.S. Dist. Court for the W. Dist. of Texas, 571 U.S. 49, 63 (2013) ("Because
plaintiffs are ordinarily allowed to select whatever forum they consider most
advantageous (consistent with jurisdictional and venue limitations), we have
termed their selection the 'plaintiff's venue privilege."'). And twice in the context
of a§ 1404(a) transfer motion, the Court has recognized the legitimacy of forum
shopping by a plaintiff.
In Van Dusen v. Barrack, 376 U.S. 612 (1964), the Court held that when a
diversity suit is transferred under § 1404(a) at the request of the defendant, the
transferee court is required to follow the choice-of-state-law rules that would have
existed in the transferor court. Id. at 639. The Court reasoned that§ 1404(a)
should not deprive the plaintiff of state-law advantages it would have enjoyed in
the transferor court. Id. at 633-34. The Court explained that "[section] 1404(a)
was not designed to narrow the plaintiff's venue privilege ... but rather the
provision was simply to counteract the inconveniences that flowed from the venue
statutes by permitting transfer to a convenient federal court." Id at 63 5.
In Ferens v. John Deere Co., 494 U.S. 516 (1990), the Court extended Van

Dusen's holding to§ 1404(a) transfers made at a plaintiff's request. Id. at 519.

6

F erens, who had been injured in a Pennsylvania farm accident, failed to file a tort
action in Pennsylvania within the applicable two-year statute of limitations. Id. In
the third year after the accident, F erens and his wife filed a diversity contract case
against John Deere in the Western District of Pennsylvania and then filed a second
diversity tort action against John Deere in the Southern District of Mississippi,
where, under Mississippi choice-of law rules, a six-year statute of limitations
applied. Id. at 519-20. At this point, to use the Supreme Court's words, ''the
Ferenses took their forum shopping a step further," as they requested and obtained
a § 1404(a) transfer of the Mississippi action to the Western District of
Pennsylvania. Id. at 520. The Pennsylvania district court consolidated the actions
but held that because the Ferenses had moved for the transfer as plaintiffs, the Van

Dusen rule did not apply and therefore Pennsylvania's two-year statute of
limitations barred the Ferenses' tort claims. Id. at 520-21. The Third Circuit
affirmed the district court's holding. Id. at 521.
In reversing the Third Circuit's decision, the Supreme Court explained in
relevant part:
The text of§ 1404(a) may not say anything about choice
of law, but we think it not the purpose of the section to
protect a party's ability to use inconvenience as a shield
to discourage or hinder litigation otherwise proper. The
section exists to eliminate inconvenience without altering
permissible choices under the venue statutes.
****

7

[E]ven without§ 1404(a), a plaintiff already has
the option of shopping for a forum with the most
favorable law. The Ferenses, for example, had an
opportunity for forum shopping in the state courts
because both the Mississippi and Pennsylvania courts had
jurisdiction and because they each would have applied a
different statute of limitations. Diversity jurisdiction did
not limit these forum shopping opportunities; instead,
under Erie [Railroad Co. v. Tompkins, 304 U.S. 64
(1938)], the federal courts had to replicate them.
Applying the transferor law would not give a plaintiff an
opportunity to use a transfer to obtain a law that he could
not obtain through his initial forum selection. If it does
make selection of the most favorable law more
convenient, it does no more than recognize a forum
shopping choice that already exists. This fact does not
require us to apply the transferee law. Section 1404(a),
to reiterate, exists to make venue convenient and should
not allow the defendant to use inconvenience to
discourage plaintiffs from exercising the opportunities
[for forum shopping] that they already have.

****

The desire to take a punitive view of the plaintiffs
actions should not obscure the systemic costs of litigating
in an inconvenient place.

****

Our rule may seem too generous because it allows
the F erenses to have both their choice of law and their
choice of forum, or even to reward the F erenses for
conduct that seems manipulative. We nonetheless see no
alternative rule that would produce a more acceptable
result.
Id. at 525-31. This quoted language makes clear to me that a plaintiffs rationale
behind its forum selection, even if the rationale is "manipulative," is irrelevant for
§ 1404(a) purposes.

8

In this case, it is undisputed that Delaware is a proper forum for this action.
See 28 U.S.C. 1400(b) ("Any civil action for patent infringement may be brought

in the judicial district where the defendant resides, or where the defendant has
committed acts of infringement and has a regular and established place of
business."). Since Fortinet is a Delaware company, the Supreme Court's decision
in TC Heartland LLC v. Kraft Foods Group Brands LLC, 137 S. Ct. 1514 (2017)
would foreclose any argument that venue does not lie in this District. See id. at
1521 (holding that under § 1400(b) a domestic corporation "resides" only in its
state of incorporation). Accordingly, I will not look to the reasons behind
Realtime's selection of Delaware as a forum; nor will I give less weight to
Realtime's forum choice on the grounds that it had not articulated its rationale to
F ortinet' s satisfaction. 2

B. Lack of Delaware Connections
Fortinet also cites in support of its position certain opinions issued by district
court and magistrate judges in the Third Circuit that appear to assign less weight to
a plaintiffs forum choice when the forum is not the plaintiffs "home turf'-that
is, if the plaintiff has limited or no facilities, operations, or employees in the

2

In fact, Realtime disclosed at least part of its rationale for filing suit in the District
of Delaware. See D.I. 20 at 4-5 (noting that one reason that Realtime sued Fortinet
in Delaware is because "F ortinet is incorporated in Delaware, [and] therefore the
Court has personal jurisdiction over Fortinet and venue is proper under 28 U.S.C. §
1400(b)").
9

forum-and/or when the facts giving rising to the lawsuit did not occur in the
plaintiffs selected forum. See D.I. 15 at 4-5 (citations omitted). I am not,
however, persuaded that these opinions are consistent with Shutte. I will instead
follow Judge Stapleton's lead in Burroughs Wellcome Co. v. Giant Food, Inc., 392
F. Supp. 761 (D. Del. 1975).
Like Judge Stapleton, I read Shutte's "statement of 'black letter law' as an
across-the-board rule favoring plaintiffs choice of forum." Id. at 763. As Judge
Stapleton explained in rejecting the "home-turf' rule argued by the defendant in

Burroughs:
The court's decision in Shutte to give weight to the
plaintiffs choice of forum is not an application of any of
the criteria recited in[§ 1404(a)]. Assuming jurisdiction
and proper venue, weight is given to plaintiffs choice
because it is plaintiffs choice and a strong showing under
the statutory criteria in favor of another forum is then
required as a prerequisite to transfer. One can perhaps
debate whether plaintiffs choice should be given any
weight at all in a transfer context, but assuming it is to be
given some weight in cases where the plaintiff lives in the
forum state, it is difficult to see why it should not also be
given weight when the plaintiff lives in [another] state ....
[The] plaintiffs contact or lack thereof with the forum
district will ordinarily be reflected in the 'balance' of
conveniences, but that contact, per se, is unrelated to
anything in Shutte, or Section 1404(a).

Id. at 763 n.4.
I, too, find it difficult to understand why the plaintiffs forum choice in and
of itself merits less weight when the plaintiff has no ties to the selected forum or
10

when the facts underlying the controversy occurred elsewhere. I do not mean to
suggest that these two latter considerations will not impact the overall transfer
analysis. On the contrary, because these considerations are subsumed and given
weight under Jumara factors 3 (whether the claim arose elsewhere), 4
(convenience of the parties), 5 (convenience of the witnesses), 6 (location of books
and records), 8 (practical considerations that could make the trial easy, expeditious,
or inexpensive), and 10 (the local interest in deciding local controversies at home),
a defendant seeking to transfer a case when neither the plaintiff nor the facts giving
rise to the case have any connection to the selected forum will generally have less
difficulty in meeting its burden to establish that the Jumara factors weigh strongly
in favor of transfer.
I do not believe that the Federal Circuit's opinion in In re Link_A_Media
Devices Corp., 662 F.3d 1221 (Fed. Cir. 2011) compels a different conclusion. In
Link_A_Media, the Federal Circuit vacated this court's denial of a§ 1404(a)

motion to transfer a patent case filed here by a non-United States company. Id. at
1222. The Federal Circuit held that this court committed a "fundamental error [in]
making [the plaintiffs] choice of forum and the fact of [the defendant's]
incorporation in Delaware effectively dispositive of the transfer inquiry." Id. at
1223. Although the Federal Circuit did not cite Shutte in Link_A_Media, it applied

11

Third Circuit law and noted that "[t]o be sure, the Third Circuit places significance
on a plaintiffs choice of forum." Id.
In dicta in Link_A_Media, the court noted that "[w]hen a plaintiff brings its
charges in a venue that is not its home forum, ... that choice of forum is entitled to
less deference." Id. I understand this statement, however, to apply only when the
plaintiff, like the plaintiff in Link_A_Media, is a non-United States company. I
draw this inference because the court cited in support of its statement two Supreme
Court decisions, Sinochem International Co. v. Malaysia International Shipping

Corp., 549 U.S. 422 (2007) and Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981),
neither of which involved transfer motions brought pursuant to§ 1404(a). Rather,
in both Sinochem and Piper Aircraft, the Supreme Court reviewed dismissals of
actions filed by non-United States plaintiffs based on the common-law forum non

conveniens doctrine. As the Court explained in Piper Aircraft, "1404(a) transfers
are different than dismissals on the ground offorum non conveniens." 454 U.S. at
253. Unlike§ 1404(a), "[t]he common-law doctrine offorum non conveniens has
continuing application [in federal courts] only in cases where the alternative forum
is abroad, and perhaps in rare instances where a state or territorial court serves
litigational convenience best." Sinochem, 549 U.S. at 430 (second alteration in
original) (internal quotation marks and citation omitted). The doctrine "is designed
in part to help courts avoid conducting complex exercises in comparative law" and

12

thus enables a district court to dismiss the case where it would be otherwise
"required to untangle problems in conflict of laws, and in law foreign to itself."
Piper Aircraft, 454 U.S. at 251 (internal quotation marks and citation omitted).

Because these concerns about foreign law and comparative law issues are not
implicated by a§ 1404(a) transfer motion in a patent case filed by a domestic
plaintiff, I understand Link_A_Media to say that a plaintiffs forum choice in a
patent case merits "less deference" for§ 1404(a) purposes only if the plaintiff does
not reside in the United States.
In this case, Realtime is a domestic company, and therefore I will follow
Shutte and give Realtime' s forum choice paramount consideration in balancing the
Jumara factors.

TI.

DEFENDANT'S FORUM PREFERENCE

This factor favors transfer.

Ill.

WHETHER THE CLAIM AROSE ELSEWHERE

This factor bears only slightly on the transfer analysis. On one hand, it
appears that F ortinet' s research and development efforts associated with the
products accused of infringing Realtime's patents occurred in the Northern District
of California-at Fortinet's headquarters in Sunnyvale and at another Fortinet
office in Union City. The connection between those efforts and the Northern
District favors transfer. See In re Hoffmann-La Roche, Inc., 587 F.3d 1333, 1338

13

(Fed. Cir. 2009). On the other hand, some of the research and development
activities relevant to this action occurred outside of the Northern District-in
Vancouver, Canada. Moreover, patent claims arise wherever the allegedlyinfringing products are sold, Treehouse Avatar LLC v. Valve Corp., 170 F. Supp.
3d 706, 710 (D. Del. 2016) (first citing 35 U.S.C. § 271(a); then citing Red Wing

Shoe Co., Inc. v. Hockerson-Halberstadt, Inc., 148 F.3d 1355, 1360 (Fed. Cir.
1998)), and Fortinet acknowledged at oral argument that the accused products in
this case are marketed and sold in Delaware, see Tr. of Oct. 16, 2018 Hr'g at 12.
Overall, this factor weighs in favor of transfer, but only slightly.

IV.

THE CONVENIENCE OF THE PARTIES AS INDICATED BY THEIR
RELATIVE PHYSICAL AND FINANCIAL CONDITION

This factor favors transfer, but only slightly. "[A]bsent some showing of a
unique or unexpected burden, a company should not be successful in arguing that
litigation in its state of incorporation is inconvenient." ADE Corp. v. KLA-Tencor

Corp., 138 F. Supp. 2d 565, 573 (D. Del. 2001). Fortinet is incorporated in
Delaware. To establish "inconvien[ce]," therefore, Fortinet must show that it
would face "a unique or unexpected burden" in having to litigate this case in this
District.
Fortinet has shown a probability that it would at least be marginally more
convenient to produce its witnesses and documents in the Northern District of
California than in Delaware, because most of F ortinet' s employees and documents
14

are already located in the Northern District. As the Northern District of California
and this District appear equally convenient for Realtime, which is litigating suits in
both fora, and Delaware is not a particularly inconvenient forum for F ortinet,
which is incorporated in Delaware, the convenience of the parties weighs slightly
in favor of transfer.

V.

THE CONVENIENCE OF THE WITNESSES

This factor carries weight "only to the extent that the witnesses may actually
be unavailable for trial in one of the fora." Jumara, 55 F.3d at 879; see also Smart

Audio Techs., LLC v. Apple, Inc., 910 F. Supp. 2d 718, 732 (D. Del. 2012) (noting
that this factor applies only insofar as "a witness actually will refuse to testify
absent a subpoena"). In addition, "witnesses who are employed by a party carry no
weight," because "each party is able, indeed, obligated to procure the attendance of
its own employees for trial." Affymetrix, Inc. v. Synteni, Inc., 28 F. Supp. 2d 192,
203 (D. Del. 1998). Here, Fortinet has not identified with particularity any
potential witness who would not be available for trial in Delaware. Because there
is no record evidence that demonstrates that necessary witnesses will refuse to
appear in Delaware for trial without a subpoena, this factor is neutral.

VI.

THE LOCATION OF BOOKS AND RECORDS

Jumara instructs me to give weight to the location of books and records only
"to the extent that the files [and other documentary evidence] could not be

15

produced in the alternative forum." 55 F.3d at 879. In this case, Fortinet has not
identified any evidence that could not be produced in Delaware. Because no
records have been identified as only being available in either the Northern District
of California or Delaware, this factor is neutral. See Sign.al Tech, LLC v. Analog

Devices, Inc., 2012 WL 1134723, at *3 (D. Del. Apr. 3, 2012).

VII. ENFORCEABILITY OF THE JUDGMENT
The parties agree that this factor is neutral, as judgments from this District
and the Northern District of California would be equally enforceable.

VIII. PRACTICAL CONSIDERATIONS
Jumara instructs me to give weight to "practical considerations that could
make the trial easy, expeditious, or inexpensive." 55 F.3d at 879. This factor
weighs strongly against transfer.
There are 19 other cases filed by Realtime currently pending in this District
and assigned to me. All 19 cases involve at least two of the same four patents that
Fortinet is alleged to have infringed in this case. Sixteen of my cases involve three
of the same four patents-in-suits, and three of those 16 cases involve all four of the
same patents-in-suits. In this respect, judicial economy counsels strongly against
transfer.
F ortinet points out that Realtime has also sued various entities in the
Northern District of California for allegedly infringing some of the same patents.

16

Indeed, Realtime is alleging patent infringement in four different actions in the
Northern District. See generally Rea/time Data LLC v. Veritas Techs. LLC, No.
3:18-cv-06029-SI (N.D. Cal. filed Oct. 2, 2018); Rea/time Data LLC v. Nexenta

Sys., Inc., No. 3:18-cv-00574-EMC (N.D. Cal. filed Jan. 26, 2018); Rea/time Data
LLC v. Silver Peak Sys., Inc., No. 4:17-cv-02373-PJH (N.D. Cal. filed Apr. 26,
2017); Rea/time Data LLC v. Fujitsu Am., Inc., No. 3:17-cv-02109-SK (N.D. Cal.
filed Apr. 14, 2017). Three of these California cases involve two of the four
patents-in-suit in this action. The fourth case involves all four patents-in-suit.
The four California cases, however, are assigned to four different judges.
Moreover, two of the California cases have been stayed pending various inter
partes reviews by the United States Patent and Trademark Office of the patents-insuits. See Rea/time Data LLC v. Silver Peak Sys., Inc., No. 4:17-cv-02373-PJH
(N.D. Cal. filed Apr. 26, 2017) (ECF No. 101); Rea/time Data LLC v. Fujitsu Am.,

Inc., No. 3:17-cv-02109-SK (N.D. Cal. filed Apr. 14, 2017) (ECF No. 63).
Finally, the only California case wherein all four patents-in-suit overlap with this
case has been referred to a magistrate judge for settlement. See Rea/time Data

LLC v. Nexenta Sys., Inc., No. 3:18-cv-00574-EMC (N.D. Cal. filed Jan. 26, 2018)
(ECF No. 44).
In light of the 19 related cases on my docket and the substantial overlap of
the patents-in-suits in those cases with the patents-in-suit in this case, I find that the

17

practical considerations that could make the trial easy, expeditious, or inexpensive
weigh strongly against transfer. See Link_A_Media, 662 F.3d at 1224 (noting that
"a district court's concurrent litigation involving the same patent [is] a relevant
consideration" for § 1404(a) purposes).

IX.

RELATIVE ADMINISTRATIVE DIFFICULTY DUE TO COURT
CONGESTION

The parties contend that this factor is neutral.

X.

LOCAL INTEREST IN DECIDING LOCAL CONTROVERSIES AT HOME

The local controversy factor is neutral. First, "[p]atent issues do not give
rise to a local controversy or implicate local interests." TriStata Tech., Inc. v.

Emu/gen Labs., Inc., 537 F. Supp. 2d 635, 643 (D. Del. 2008). Second, Fortinet's
dispute with Realtime, which does not reside in California, is not a "local
controversy" in the Northern District.

XI.

PUBLIC POLICIES OF THE FORA

Delaware's public policy encourages Delaware corporations to resolve their
disputes in Delaware courts. Round Rock Research, LLC v. Dell, Inc., 904 F.
Supp. 2d 374,378 (D. Del. 2012). That concern is irrelevant since Realtime is not
a Delaware corporation, and the defendant, which is a Delaware corporation, does
not want to litigate here. E.g., Semcon Tech, LLC v. Intel Corp., 2013 WL 126421,
at *4 (D. Del. Jan. 8, 2013). This factor is thus neutral.

18

XII.

FAMILIARITY OF THE TRIAL JUDGES WITH THE APPLICABLE
STATE LAW IN DIVERSITY CASES

Realtime's claims arise under the federal patent laws. Therefore, the
familiarity of the respective districts with state law is not applicable and this factor
is neutral.

****
In sum, of the 12 Jumara factors, seven are neutral, two weigh strongly
against transfer, one favors transfer, and two slightly favor transfer. Having
considered the factors in their totality and treated Realtime's choice of this forum
as a paramount consideration, I find that F ortinet has failed to demonstrate that the

Jumara factors weigh strongly in favor of transfer. I will therefore deny Fortinet's
motion to transfer (D.I. 14).3
The Court will enter an order consistent with this Memorandum Opinion.

3

I note that I would have reached the same conclusion had I given "significant"
but less than "a paramount consideration" to Realtime's forum choice in my
balancing of the Jumara factors. See Link_A_Media, 662 F.3d at 1223 (noting that
"[t]o be sure, the Third Circuit places significance on a plaintiffs choice of
forum").
19