Civil Action No. 13-1275-GMS
On July 24, 2013, the Plaintiffs Cornerstone Therapeutics Inc., Cornerstone Biopharma,
Inc., and EKR Therapeutics, LLC ("Cornerstone") filed a patent infringement suit against the
Defendants Exela Pharma Sciences, LLC, Exela PharmSci, Inc., and Exela Holdings, Inc.
("Exela") alleging infringement of U.S. Patent Nos. 7,612,102 ("the '102 patent") and 7,659,291
("the '291 patent"). (D.I. 1.) On August 19, 2013, Cornerstone amended its Complaint to allege
infringement ofU.S. Patents Nos. 8,455,524 ("the '524 patent") and 7,659,290 ("the '290 patent").
(D.I. 19.) Presently before the court is Exela's Motion to Transfer. (D.I. 12.) For the following
reasons, the court will deny Exela's motion.
As 28 U.S.C. § 1404(a) provides, "[f]or the convenience of parties and witnesses, in the
interest of justice, a district court may transfer any civil action to any other district or division
where it might have been brought." In order to decide whether to transfer a case under this Section,
the court first determines "whether the action could have been brought originally in the proposed
transferee forum." Linex Technologies, Inc. v. Hewlett-Packard Co., No. 11-400-GMS, 2013 WL
105323, at * 1 (D. Del. Jan. 7, 2013). The court then considers the private and public interests
provided by the Third Circuit in Jumara v. State Farm Insurance Company. 55 F.3d 873, 879 (3d
Cir. 1995). Of the private interests that the court may consider, the interests relevant to resolving
the instant motion are the parties' choice of forum, where the claim arose, the convenience of the
parties, the convenience of witnesses, and the location of books and records. !d. Of the public
interests detailed in Jumara, the key interests here are practical considerations that could make the
trial expeditious and the relative administrative difficulties in the two fora.
Cornerstone alleges, and Exela does not expressly deny, that this action could have been
brought in North Carolina. (D.I. 13 at 5-6; D.l. 21 at 6-7.) Thus, the court proceeds to weigh the
Jumara factors. Although Cornerstone's choice of Delaware is not entitled to the usual paramount
deference because none of the plaintiffs are physically located in Delaware, see Linex
Technologies, 2013 WL 105323, at *3, Cornerstone's choice is nonetheless entitled to greater
weight than Exela's choice ofNorth Carolina. See, e.g., Tessera, Inc. v. Sony Elecs., Inc., No. 10-
838-RMB-KW, 2012 U.S. Dist. LEXIS 46234, at* 11 (D. Del. Mar. 30, 2012).
Regarding where the claim arose, since ANDA cases mainly involve constructive
infringement, courts examine where the ANDA submission was submitted. See Abbott Labs. v.
Roxane Labs., No. 12-457-RGA-CJB, 2013 U.S. Dist. LEXIS 74316, at *67-68 (D. Del. May 28,
2013). Here, both parties acknowledge that the Exela application was prepared and filed in North
Carolina, so this factor weighs in favor of transfer there. (D.I. 13 at 7; D.l. 21 at 10-11.) The next
factor-the convenience of the parties--does not weigh in favor of transfer, however. As
Cornerstone rightly observes, (D.I. 21 at 11-12), the decision of two out of three defendants to
incorporate in Delaware casts doubt on their arguments that litigating in this state is inconvenient.
See Micron Tech. v. Rambus, Inc., 645 F.3d 1311 (Fed. Cir. 2011) (Explaining that parties'
decision to incorporate in Delaware indicates they have willingly submitted to suit there.) In
addition, the only defendant not incorporated in Delaware, Exela PharmSci, Inc., can hardly argue
that litigating in Delaware is inconvenient. Exela PharmSci, Inc. is incorporated only a short
distance away in Virginia, and has no physical presence anywhere. (D.I. 21 at 12.)
Just as where the claim arose and the convenience of the parties weigh against transfer,
both the convenience of witnesses and the location of books and records also counsel against
transferring this matter. Exela has not identified any witnesses that could not be made available
in Delaware. (D.I. 13 at 13.) Thus, the convenience of the witnesses cannot be a basis for transfer
here. See Jumara, 55 F.3d at 879 (Explaining that the convenience of the witnesses is a basis for
transfer "only to the extent thee witnesses may actually be unavailable for trial in one of the
fora[.]") Regarding the location of books and records, this factor is relevant and weighs in favor
of transfer only to the degree that these books and records cannot be produced in Delaware. See,
e.g., Cradle IP, LLC v. Texas Instruments, No. 11-1254-SLR, 2013 U.S. Dist. LEXIS 19245, at
*10-11 (D. Del. Feb. 13, 2013) (Explaining that the location of books and records weighs against
transfer where there is no indication that the parties would "experience[] any difficulty in
conducting electronic discovery.") Although Exela claims that the relevant documents are
maintained in North Carolina, (D.I. 13 at 13-14), it has not explained why these documents could
not be transmitted electronically or otherwise made available in Delaware.
Regarding the public interest factors, Exela argues that the Western District of North
Carolina is "likely to be a more convenient forum for a majority of the witnesses[.]" (D.I. 13 at
10-11.) The inventors do not reside in North Carolina, however, (D.I. 21 at 5 (noting that all of
the named inventors reside in either Illinois or California)), and Exela does not specify which of
its employees in North Carolina will be required at trial, (D.I. 13 at 10-11). The court cannot
conclude that Exela's vague assertions regarding the convenience of undisclosed witnesses weigh
in favor of disregarding Cornerstone's forum choice and transferring this matter. Also unavailing
are Exela's arguments regarding the congestion of the docket in Delaware. (D.I. 13 at 11-12.)
Although the number of cases per judge and time to trial are greater in Delaware, it is undisputed
that Delaware judges have much greater familiarity with patent cases by virtue of their patent-
heavy dockets. As Cornerstone observes, "this Court's patent expertise will undoubtedly result in
administrative efficiencies." (D .I. 21 at 19.)
All things considered, the court concludes that Exela has not demonstrated that this matter
should be transferred to the Western District of North Carolina. IT IS HEREBY ORDERED
THAT Exela's Motion to Transfer, (D.I. 12), is DENIED.
Dated: June J../2_, 2014

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