Cellular Dynamics International, Inc. et al v. Lonza Walkersville, Inc.

Filing 69

ORDER granting 30 Motion to Transfer to the District of Maryland by Defendant Lonza Walkersville, Inc. Signed by Magistrate Judge Stephen L. Crocker on 9/12/2017. (arw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

CELLULAR DYNAMICS
INTERNATIONAL, INC. and WISCONSIN
ALUMNI RESEARCH FOUNDATION,

OPINION AND
ORDER

Plaintiffs,
v.

17-cv-0027-slc

LONZA WALKERSVILLE, INC.,
Defendant.

Before the court is the motion of defendant Lonza Walkersville, Inc. to transfer this case
to the United States District Court of Maryland on the ground that venue is not proper in this
district. Dkt. 30. For the reasons discussed below, I am granting this motion.

BACKGROUND
This is a patent infringement action involving stem cell technology. On January 12,
2017, plaintiffs Cellular Dynamics International, Inc. (“CDI”) and Wisconsin Alumni Research
Foundation (“WARF”) sued Lonza Walkersville, Inc., for patent infringement, alleging that
Lonza had developed and sold induced pluripotent stem cells (“iPSCs”), as well as a platform
(known as the “Lonza Kit”) for generating stem cells, that directly or indirectly infringed upon
five CDI patents and two WARF patents licensed to CDI.
Defendant Lonza Walkersville is a Delaware corporation with its principal place of
business in Walkersville, Maryland. The patent venue statute, 28 U.S.C. § 1400(b), provides
that “[a]ny 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.” Under controlling law at the time plaintiffs filed suit, for
purposes of § 1400(b) a corporation was “deemed to reside, if a defendant, in any judicial
district in which such defendant is subject to the court's personal jurisdiction with respect to the
civil action in question.” VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574, 1578
(Fed. Cir. 1990). However, on May 22, 2017, the United States Supreme Court overruled VE
Holding and significantly narrowed the reach of the venue statute, finding that the term “reside”
as used in the patent venue statute “refers only to the State of incorporation.” Id. at 1520
(citing In Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 226 (1957)). This means
that venue no longer can be established in a patent case involving a non-resident corporate
defendant merely by showing that the defendant is subject to personal jurisdiction. Instead,
venue is proper only “where the defendant has committed acts of infringement and has a regular
and established place of business.” 28 U.S.C. § 1400(b); Fourco, 353 U.S. at 226.
Two days after TC Heartland was decided, defendant filed the instant motion pursuant
to 28 U.S.C. § 1406, arguing that venue is no longer proper in this district and asking the court
to transfer this case to the United States District Court for the District of Maryland. Dkt. 30.1
In support, defendant cited to declarations filed by Dr. Thomas Fellner, Lonza Walkersville’s
Head of Commercial Development of Cell Therapy, in which he averred that:

1

Defendant had filed a similar motion on M arch 3, 2017, dkt. 7, asking that the case be
transferred to the District of Delaware, where a mirror-image action filed by defendant against CDI
and W ARF was pending. This court ruled that it would defer to the District of Delaware to decide
whether to apply the first-to-file rule and rule on a similar transfer motion filed by defendant CDI in
the case before it. Dkt. 23. The Delaware court, in turn, deferred a decision on the venue question
until the Supreme Court decided TC Heartland. Dkt. 28. Soon after TC Heartland was decided,
defendant voluntarily dismissed its Delaware lawsuit against plaintiffs. In its current motion to
transfer, defendant argues for transfer to the District of M aryland, asserting that the Delaware court is
facing a shortage of judges, the effects of which are likely to be exacerbated by the fallout from TC
Heartland.

2

•

Lonza Walkersville was incorporated in Delaware in 1991,
and its principal place of business is in Walkersville,
Maryland;

•

Lonza Walkersville is not registered to do business in
Wisconsin and has no regular or established place of
business in Wisconsin;

•

Lonza Walkersville neither owns nor leases any real estate
or other property in Wisconsin, and it has no telephone
listings or bank accounts in Wisconsin;

•

Lonza Walkersville has no regular employees, agents or
distributors that reside in Wisconsin;

•

Lonza Walkersville has no offices, no retail outlets, and no
distribution centers, order centers or manufacturing
facilities in Wisconsin;

•

Lonza Walkersville has never had any employees,
representatives or agents in Wisconsin at any time;

•

Lonza Walkersville does not maintain any inventory in
Wisconsin;

•

Products bought from Lonza Walkersville are shipped
directly from its facility in Walkersville, Maryland to the
customer;

•

Lonza Walkersville does not have any additional
warehouses or facilities in which its products are stored
prior to shipment in Wisconsin; and

•

There is no long-standing, automatically renewing contract
between the University of Wisconsin and Lonza
Walkersville.

Dkts. 9, 26. 37.
Fellner’s declarations appeared to refute decisively any claim that defendant has a
“regular and established place of business” in this district, but plaintiffs called defendant’s due
diligence into question when plaintiffs produced a document that appeared to contradict

3

Fellner’s denial that defendant had any long-standing contract with the University of Wisconsin.
See dkts. 39-40. Accordingly, on June 20, 2017, I granted plaintiffs’ request to conduct
expedited discovery on venue, but limited it to “some very minimal discovery basically to prove
up the due diligence either of Dr. Fellner or a 30(b)(6) representative.”

Dkt. 41, 42.

Specifically, I ordered defendant to respond to plaintiffs’ First Set of Requests for Production,
Numbers 1-3 and 7, and to “maybe have somebody sit for a two-hour deposition basically to
confirm that due diligence was exercised and there is no permanent and continuous presence . . .
by Lonza Walkersville, in Wisconsin.” Tr. of Mot. Hrg., dkt. 42, at 6. I further advised the
parties that “when I say ‘very minimal,’ I mean it.” Id.
Defendant responded to plaintiffs’ document requests on July 21, 2017. Although it
found no responsive documents to Requests Nos 1, 2 and 3, defendant produced 90 documents
derived from a search of employee records and defendant’s contract database. Dkt. 46.
Defendant’s responses confirmed that: (1) Lonza Walkersville has no employees who reside or
work in Wisconsin; and (2) Lonza Walkersville does not maintain any inventory or property in
Wisconsin, nor has it done so in the past. Dkt. 55-1. In addition, plaintiffs deposed Dr. Fellner
for four hours on July 25, 2017, on a number of topics. Dkt. 45. Dr. Fellner was not designated
to testify about defendant’s document retention policy or the steps taken by defendant to collect
and produce documents in response to plaintiffs’ document requests. Dkt. 45, at 11-12; Dkt.
55-2.
After Dr. Fellner’s deposition, plaintiffs complained that he was unprepared and that
defendant’s document production was inadequate, and indicated a desire to conduct further
discovery.

Dkt. 45, at 143-44; dkt. 46. On July 28, 2017, this court rejected any further

4

attempts by plaintiffs to take discovery and ordered briefing on the motion to transfer to
proceed. Dkt. 49.
Briefing is now complete and the motion to transfer is under advisal to the court.
Although plaintiffs argue otherwise, I am convinced the discovery they received was adequate,
that Fellner’s declarations are sufficiently reliable and credible to be accepted by the court, and
that the record is developed sufficiently to decide the motion. Although Dr. Fellner was not the
most knowledgeable 30(b)(6) witness, he testified that the facts in his declarations were
supported by conversations he had with defendant’s in-house counsel, internal sales staff and
the company controller, and from reviewing documents that had been collected by in-house
counsel. Dkt. 45, at 145-150. This is enough to “prove up” defendant’s due diligence, which
is the reason I authorized the discovery in the first place. Further, plaintiffs have not identified
any facts or evidence to suggest that defendant is hiding the ball. Against that backdrop, I find
the following facts, solely for the purpose of deciding the motion to transfer:

FACTS
Lonza Walkersville is a Delaware corporation with its principal place of business in
Walkersville, Maryland. It is not registered to do business in Wisconsin. It does not own or
lease any real estate or other property in Wisconsin; it has no offices, retail outlets, distribution
centers, order centers or manufacturing facilities in Wisconsin; and has no telephone listings or

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bank accounts in Wisconsin.2 Its website, listing all of its North American locations, has two
locations listed for Lonza Walkersville, both of which are in Maryland.
All Lonza Walkersville products are manufactured in Walkersville. Lonza Walkersville
does not maintain any inventory in Wisconsin and has no storage facilities or warehouses in
Wisconsin or contracts with local distributors in Wisconsin. Products bought from Lonza
Walkersville are shipped directly from the facility in Walkersville, MD to the customer via
commercial carrier.
Lonza Walkersville has no employees, representatives, agents or distributors who live in
Wisconsin.3 None of its sales representatives live in Wisconsin or are devoted exclusively to

2

Plaintiffs attempt to link Lonza W alkersville to its parent company, Lonza AG, and to a local
support office warehouse formerly owned by Arch Chemicals. Br. in Opp., dkt. 53, at 6. As defendant
points out, however, Arch Chemicals is a separate corporation that is only connected to Lonza
W alkersville by having the same parent company; moreover, Arch Chemicals is located in Jackson,
W isconsin, which is in the Eastern District of W isconsin. Accordingly, the Arch Chemicals warehouse
is irrelevant.
3

Plaintiffs argue that the relevant time period for analyzing venue begins when its cause of
action accrued, which they say was on M ay 22, 2012, which is the first date of issuance for the patents
in suit. Dkt. 53, at 11. Plaintiffs point out that Dr. Fellner testified that he had personal knowledge
regarding defendant’s present state of affairs but not the past; plaintiffs imply that this leaves the
record undeveloped on this point. Fellner Dep., dkt. 45, at 40:2-41:2. Defendant has not responded
to these assertions.
A more robust record would have been helpful, and defendant should have done a better job of
dotting the “i”s and crossing the “t”s, but in light of the evidence actually adduced so far, there is no
genuine need to delve more deeply. Plaintiffs have not pointed to any evidence to suggest that there is
any reason to believe that defendant had employees located on a regular and continuous basis in
W isconsin in the past five years. It appears that Lonza does not conduct a substantial amount of
business in the state that would justify a local sales force. See Carly Dec., dkt. 22, ¶14, exh. 12
(indicating that in the five years from January 1, 2012 to December 31, 2016, Lonza’s sales to the UW
amounted to approximately $200,000). M oreover, defendant indicated that it did not maintain any
inventory or property in W isconsin in the past, Def.’s Responses to First Set of Requests for
Production, dkt. 55-1, and it explained that orders are filled in W alkersville. Even if I were to assume,
arguendo, that there might have been Lonza employees who lived in W isconsin at some point in the
past five years, the other facts in the record defeat any suggestion that their activities constituted a
regular and established place of business.

6

selling Lonza Walkersville products in Wisconsin. It has one sales representative, Melissa King,
who visits Wisconsin three days a month to perform demonstrations of Lonza Walkersville
products, but she does not take order requests. All of those requests are sent to the order desk,
which is located in Lonza Walkersville’s facility in Walkersville, MD.
Lonza Walkersville sold the accused Lonza Kits to Wisconsin companies, including the
University of Wisconsin. Since at least 2010, Lonza Walkersville has had a contract with the
University of Wisconsin to supply it with laboratory equipment and related supplies.4 Although
the bid sheet for the contract has a provision that requires Lonza Walkersville to perform onsite
repair within three days under certain circumstances, Lonza Walkersville has not performed any
on-site repairs in Wisconsin for at least the last four years.
Lonza Walkersville’s 2010 and 2014 contracts with the University of Wisconsin for the
supply of laboratory equipment, related supplies, and maintenance, contain a choice of law
provision, applying Wisconsin law, and a forum selection clause, requiring that “any disputes
under this Agreement shall be in Dane County, Wisconsin.” Dkt. 40-1, ¶13.0. In its response
to the University’s request for bids in 2014, defendant checked a box indicating that it agreed
to extend the contract to “Non-Profit Organizations specifically linked by their mission to the
University of Wisconsin.” Id., at 24.

4

Plaintiffs point to two other contracts between defendant and entities in this district, but
neither advances the venue analysis. The first is a contract with Promega Corporation, but it involves
Lonza Cologne GmbH, not Lonza W alkersville. Dkt. 53, at 7; Dkt. 55-14. The second is a M aster
Supply Agreement with Pfizer, Inc. It involves potential sales to more than 150 Pfizer sites worldwide,
one of which is located in W isconsin. Dkt. 53, at 7; Dkt. 55-6 at 1.6; Dkt. 55-7. There is no evidence
that defendant sold products to Pfizer in W isconsin, and even if it did, such sales alone would fail to
show that defendant had a regular and established place of business in this district.

7

Lonza Walkersville has relationships with Wisconsin companies and the University of
Wisconsin for research and development purposes and for quality control testing, and has
licensed patents from WARF for Lonza’s own research.

OPINION
I. DEFENDANT DOES NOT HAVE A REGULAR AND
ESTABLISHED PLACE OF BUSINESS IN THIS DISTRICT
As noted previously, venue in patent infringement actions is controlled exclusively by 28
U.S.C. § 1400(b). This statute provides:
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.
For purposes of section 1400(b), the residence of a corporation is its place of
incorporation. TC Heartland, 137 S. Ct. at 1517. Lonza Walkersville is a Delaware corporation
and thus does not “reside” in the Western District of Wisconsin for venue purposes. Venue will
lie in this district, therefore, only if defendant has committed acts of infringement here and has
a regular and established place of business in this district. It is unnecessary to decide whether
the complaint sufficiently alleges that defendant has committed acts of infringement in this
district because defendant does not have a regular and established place of business here.
28 U.S.C. § 1400(b) does not define what is meant by the term “regular and established
place of business.” The sole case from the Federal Circuit addressing the subject is In re Cordis
Corp., 769 F.2d 733, 737 (Fed. Cir. 1985), a case that originated in the District of Minnesota.
Cordis, a company that sold cardiac pacemakers, was a Florida corporation with its principal

8

place of business in Florida. Cordis employed two full-time sales representatives who maintained
offices in their homes in Minnesota. Id. at 735. The employees stored Cordis literature,
documents and products in their homes, completed their paperwork and other administrative
tasks there and claimed income tax deductions for their home offices. Id. One sales rep had
approximately $30,000 of Cordis products in his home office while the other rep had
approximately $60,000 worth, and hospitals or physicians could obtain pacemakers directly from
this inventory. Id. Further, Cordis engaged a secretarial service in Minnesota to help the
employees with their work; calls made to the number provided by the employees on their
business cards were answered by the service as “Cordis Corporation.” Id. Finally, the employees
were often present in the operating room during implantation of Cordis pacemakers, where they
provided technical product information and post-implantation consultations. Id.
After the district court denied Cordis’s motion to dismiss for improper venue, Cordis
petitioned the Federal Circuit Court of Appeals for a writ of mandamus. Cordis argued that the
fact that it did not rent or own a fixed physical location within Minnesota absolutely precluded
a finding that it had a regular and established place of business as required by § 1400(b). After
reviewing two cases cited by Cordis, the appellate court disagreed, finding that
[t]hese cases indicate that in determining whether a corporate
defendant has a regular and established place of business in a
district, the appropriate inquiry is whether the corporate defendant
does its business in that district through a permanent and
continuous presence there and not . . . whether it has a fixed
physical presence in the sense of a formal office or store.
Id. at 737. Thus, because “a rational and substantial legal argument” could be made in support
of the district court’s order finding venue proper in Minnesota, the court declined to issue the
writ. Id.

9

Because Cordis was decided on such narrow grounds, it offers limited guidance on how
courts are to determine whether a defendant has a “regular and established place of business”
in a district. Lower courts grappling with this question have failed to agree on a definitive test.
See Raytheon Co. v. Cray, Inc., 2017 WL 2813896, at *11 (E.D. Tex. June 29, 2017)(noting that
courts before and after Cordis failed to take a uniform approach); Hemstreet v. Caere Corp., 1990
WL 77920, at *2 (N.D. Ill. June 6, 1990) (“Exactly what factors and the weight to be given the
various factors concerning a defendant corporation's activities within the district has been the
subject of diverse judicial opinions which often reach opposite conclusions on nearly identical
facts.”); MAGICorp. v. Kinetic Presentations, Inc., 718 F. Supp. 334, 340 (D.N.J. 1989) (“courts
and commentators alike are clear that there is no definitive formula for assessing whether the
defendant has ‘a regular and established place of business' in the district”); Lace v. Lace, 1989 WL
103364, *3 (N.D. Ill. 1989) (describing case law as “jumbled and irreconcilable”). Two
guideposts are clear, however:
First, the “regular and established place of business” requirement contemplates something
more than minimum contacts or simply doing business in a particular district. Knapp-Monarch
Co. v. Casco Products Corp., 342 F.2d 622, 625 (7th Cir. 1965) (company’s “many varied contacts”
in the state failed to demonstrate that company had a “regular and established place of business”
within the state, although they indicated that company was “doing business” in the state as that
term was contained in the general venue statute); Kinetic Instruments v. Lares, 802 F. Supp. 976,
987 (S.D.N.Y. 1992) (having a regular and established place of business involves more than
“doing business” in forum district); MAGICorp., 718 F. Supp. at 340 (“This prong of the venue
test, however, requires greater contacts than were necessary under the ‘doing business' test

10

formerly articulated in the generic venue statute.”); Johnston v. IVAC Corp., 681 F. Supp. 959,
962 (D. Mass. 1987) (regular and established place of business standard requires more than
minimum contacts necessary for establishing personal jurisdiction). Second, the focus of the
inquiry must be on whether the defendant conducts its business in the district through a
“permanent and continuous presence,” not on whether it has a “fixed physical presence in the
sense of a formal office or store.” Cordis, 769 F.2d at 737; Lace, 1989 WL 103364, *3.5
Keeping these guideposts in mind, I find that defendant does not have a sufficient
“permanent and continuous” corporate “presence” in this district to support a finding of proper
venue under § 1400(b). Most significantly, Lonza Walkersville has no permanent or continuous
physical presence in Wisconsin, not real estate, not people, not inventory. Lonza Walkerville
does have sales managers who visit and solicit customers in Wisconsin (as well as many other
states), but none of them lives in this district or maintains any product or inventory here.
Plaintiffs insist that the “regular and established place of business” test does not demand
that defendant’s sales reps live in Wisconsin, so long as they work here. That may be true, if the
defendant maintains some sort of office or location from which the employees work on a regular
basis. However, I have not located any case in which the court found a regular and continuous
presence based on the fact that an employee commuted in and out of the district. Rather, in
each of the cases in which a sales employee’s activities in a forum were found to be sufficient to
establish venue, the employee’s residence functioned effectively as a satellite corporate office.
5

Plaintiffs ask the court to adopt the four-part framework recently developed by the United
States District Court for the Eastern District of Texas for assessing whether a defendant has a regular
and established place of business in a district. See Raytheon Co. v. Cray, Inc., 2017 W L 2813896, at
*11-*13 (E.D. Tex. June 29, 2017) (identifying relevant factors as defendant’s (1) physical presence;
(2) representations; (3) benefits received; and (4) targeted interactions with the district.) Although I
think this test is incorrect, applying it here would not change the result.

11

See, e.g., Cordis, 769 F.2d at 735; Brunswick Corp. v. Suzuki Motor Co., 575 F. Supp. 1412, 1424
(E.D. Wis. 1983) (venue proper where corporation’s employees owned or rented homes in
district and worked out of their homes); CPG Prod. Corp. v. Mego Corp., No. C-1-79-582, 1980
WL 50358, at *1 (S.D. Ohio Aug. 21, 1980) (defendant employed one sales agent who lived in
district and used home as a base for his sales operations); Shelter-Lite, Inc. v. Reeves Bros., 356 F.
Supp. 189, 191 (N.D. Ohio 1973) (same).
In any event, this discussion is academic because there is no evidence that defendant has
any employees who work regularly and continuously in Wisconsin. Only one sales rep–Melissa
King– visits Wisconsin with any regularity; she visits Wisconsin three days a month to perform
demonstrations of Lonza Walkersville products. However, she does not live, office or maintain
any inventory in Wisconsin, nor does she fulfill customer orders in Wisconsin. Product orders
are sent to Lonza Walkersville’s facility in Walkersville, MD, where they are filled, and then
shipped to the customer via commercial carrier. King’s thrice-monthly sales calls to Wisconsin
are a far cry from the facts in Cordis, and amount to nothing more than defendant “doing
business” in Wisconsin. They are not sufficient in quantity or quality to support a finding that
defendant has a “permanent and continuous presence” here. Cf. Hemstreet, 1990 WL 77920,
at *4 (finding venue proper where defendant maintained office in district from which its district
manager worked; manager received customer calls there for the placement of orders and
maintained demonstration equipment there); Lace, 1989 WL 103364, at *3 (venue not proper
in Illinois even though salesperson for California corporation lived in district, kept some parts
with him to take on sales calls and solicited $2.5 million annual business for defendant, because

12

defendant’s customers “must look to California for approval of their order, shipment, repairs and
other assistance.”).
Plaintiffs also make much of the fact that defendant offers service plans for its products
and devices, which include regular on-site preventative maintenance, in addition to as-needed
on-site repair by Lonza engineers. Absent any evidence that defendant maintains a location in
this district where it houses inventory or service employees, however, it is difficult to see the
relevance of service obligations to the venue analysis. Providing service is not the same as
maintaining a “place of business.” In any case, there is no evidence as to how often such repairs
are needed, whether any Wisconsin entities own the products for which the service plans are
offered or applicable or that any of defendant’s employees are in Wisconsin on a regular and
continuous basis to fulfill these obligations. Neither sporadic, as-needed service calls nor periodic
maintenance visits amount to a “permanent and continuous presence.”
Lacking any evidence that Lonza Walkersville maintains any sort of regular place of
business in this district, or even that Lonza represents that it does, plaintiffs attempt to
construct a corporate “presence” by pointing out that Lonza Walkersville has at times exchanged
confidential information and collaborated with the University of Wisconsin for research
purposes, and that it uses a Wisconsin company to perform quality testing of its products.
Again, however, the question is not merely whether Lonza Walkersville has been “present” in
Wisconsin or has some connections to it, but whether it maintains a “regular and established”
place of business in this district. That Lonza Walkersville hires other companies or works with
researchers in Wisconsin fails to establish that it maintains what amounts to a regular place of
business in the state.

13

In sum, the record does not support a finding that defendant maintains a regular and
established place of business in this district. To find that venue is appropriate in this case would
be akin to acting as if TC Heartland was never decided, in that it would permit a court to find
venue based on the same facts that, pre-TC Heartland, the courts used to exercise personal
jurisdiction over a non-resident corporation. The test for venue now requires more. That
“more” is not present in this case.

II. DEFENDANT DID NOT WAIVE VENUE
As a fallback, plaintiffs argue that defendant waived its right to object to venue when it
agreed to sell laboratory supplies and equipment to the University of Wisconsin. Plaintiffs point
out that the supply agreement between the UW and Lonza Walkersville contains a forum
selection clause which specifies Dane County, Wisconsin as the location for resolving any
disputes “arising under this agreement.” Plaintiffs argue that the instant patent infringement
suit “arises under” the supply agreement because Lonza sold the accused Lonza Kits to the UW
under its supply agreement with the UW. According to plaintiffs, their claims of indirect
infringement related to the Lonza Kits will require construction of the Lonza-UW agreement,
and therefore “the instant action is a dispute under the Lonza-UW agreement, to which the
forum selection clause would apply.” Br. in Opp., dkt. 53, at 28. Further, argue plaintiffs,
WARF is a third-party beneficiary of the contract because defendant checked a box indicating
that it agreed to extend the contract to other “Non-Profit Organizations specifically linked by
their mission to the University of Wisconsin Madison,” of which WARF is one.

14

This argument is too much of a stretch. Plaintiffs fail to explain why the Lonza-UW sales
agreement has anything to do with this patent infringement action or why it would need to be
construed. The purpose of the agreement between Lonza and the UW was to “request[] bids
for the purchase of Laboratory Equipment, Related Supplies and Maintenance Agreements.”
Dkt. 40-1, § 2.1. It is a supply contract. Plaintiffs fail to demonstrate how that agreement is
related to this case other than that it was the means by which the accused Lonza Kits arrived in
the hands of a third party. Even if WARF could somehow be deemed a third-party beneficiary
of the contract (which has not been adequately shown), plaintiffs’ conclusory assertions fail to
establish that this action for patent infringement “arises under” that contract. (Indeed, in the
Delaware action, plaintiffs they took the position that similar forum selection clauses that
appeared in supply contracts into which CDI had entered and which specified Delaware as the
forum of choice were not binding for jurisdiction. Dkt. 10-2, at 14.) Accordingly, the forum
selection clause does not apply.

III. TRANSFER TO MARYLAND IS APPROPRIATE
28 U.S.C. § 1406(a) provides that
The district court of a district in which is filed a case laying venue
in the wrong division or district shall dismiss, or if it be in the
interest of justice, transfer such case to any district or division in
which it could have been brought.
Plaintiffs do not argue in favor of dismissal or contend that this case could not have been
brought in Maryland.

15

ORDER
IT IS ORDERED that, pursuant to 28 U.S.C. § 1406(a), the motion of defendant Lonza
Walkersville, Inc. for an order transferring this case to the United States District Court for
Maryland is GRANTED.

Entered this 12th day of September, 2017.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge

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