Case 1:17-cv-01635-CFC Document 33 Filed 10/31/18 Page 1 of 20 PageID #: 529
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`IN THE UNITED STATES DIST;RICT COURT
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`FOR THE DISTRICT OF DELAWARE
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`REALTIJ\.ffi DATA LLC, cl/b/a IXO,
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`Plaintiff,
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`v.
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`FORTINET, INC.
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`Defendant. :
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`Civil Action No. 17-163 5-CFC
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`Stephen B. Brauerrnan, Sara E. Bussiere, BAY ARD, P.A., Wilmington, Delaware;
`Mark A. Fenster, Paul A. Kroeger, Reza Mirzaie, RUSS, AUGUST & KABAT,
`Los Angeles, California
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`Counsel for Plaintiff
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`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
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`Counsel for Defendant
`
`
`
`IN THE UNITED STATES DIST;RICT COURT
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`FOR THE DISTRICT OF DELAWARE
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`REALTIJ\.ffi DATA LLC, cl/b/a IXO,
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`Plaintiff,
`
`v.
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`FORTINET, INC.
`
`Defendant. :
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`Civil Action No. 17-163 5-CFC
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`Stephen B. Brauerrnan, Sara E. Bussiere, BAY ARD, P.A., Wilmington, Delaware;
`Mark A. Fenster, Paul A. Kroeger, Reza Mirzaie, RUSS, AUGUST & KABAT,
`Los Angeles, California
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`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
`
`
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`Case 1:17-cv-01635-CFC Document 33 Filed 10/31/18 Page 2 of 20 PageID #: 530
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`MEMORANDUM OPINION
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`CONNOLLY, UNITED TES DISTRICT J
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`OCTOBER 31, 2018
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`Realtime Data LLC has sued Fortinet, Inc., a Delaware corporation, for
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`patent infringement. Fortinet has moved pursuant to 28 U.S.C. § 1404(a) to
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`transfer this case to the Northern District of California-where Fortinet is
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`headquartered, has its principal place of business, and can produce its witnesses
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`and documents more easily. Realtime has pending suits against other defendants in
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`the Northern District alleging violations of some of the same patents that are at
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`issue here, but it has many more such suits pending in this District before me. For
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`the reasons discussed below, I will deny Fortinet's motion to transfer (D.1. 14).
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`Section 1404(a) provides that "[f]or the convenience of the parties and
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`witnesses, in the interests of justice, a district court may transfer any civil action to
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`any other district or division where it might have been brought." 28 U.S.C. §
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`1404(a). It is undisputed that this action could have been brought in the Northern
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`District of California. Thus, the only issue before me is whether I should exercise
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`my discretion under§ 1404(a) to transfer the case to California.
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`F ortinet has the burden "to establish that a balancing of proper interests
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`weigh[ s] in favor of the transfer." Shutte v. Armco Steel Corp., 431 F .2d 22, 25
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`Case 1:17-cv-01635-CFC Document 33 Filed 10/31/18 Page 3 of 20 PageID #: 531
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`(3d Cir. 1970). This burden is heavy. "[U]nless the balance of convenience of the
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`parties is strongly in favor of [the] defendant, the plaintiffs choice of forum should
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`prevail." Id. (emphasis in original) (internal quotation marks and citation omitted).
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`The proper interests to be weighed in deciding whether to transfer a case
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`under§ 1404(a) are not limited to the three factors recited in the statute (i.e., the
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`convenience of the parties, the convenience of the witnesses, and the interests of
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`justice). Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995).
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`Although there is "no definitive formula or list of the factors to consider" in a
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`transfer analysis, the court in Jumara identified 12 interests "protected by the
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`language of§ 1404(a)." Id. Six of those interests are private:
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`[ 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).
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`Id. ( citations omitted). The other six interests are public in nature:
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`[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
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`2
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`Case 1:17-cv-01635-CFC Document 33 Filed 10/31/18 Page 4 of 20 PageID #: 532
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`familiarity of the trial judge with the applicable state law
`in diversity cases.
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`Id. at 879-80 ( citations omitted). As the parties have not identified relevant factors
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`beyond these 12 interests, I will balance the Jumara factors in deciding whether to
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`exercise the discretion afforded me by§ 1404(a).
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`I.
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`PLAINTIFF'S FORUM PREFERENCE
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`This factor clearly weighs against transfer. The parties agree on that much.
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`They disagree, however, about the amount of weight I should give this factor in
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`conducting the balancing of interests called for by Jumara. F ortinet argues that
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`Realtime's forum choice "should receive little weight." D.I. 15 at 5. Realtime
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`contends that I should give its forum choice "paramount consideration." D.I. 20 at
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`4_ 1
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`In Shutte, the Third Circuit held that "[i]t is black letter law that a plaintiffs
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`choice of a proper forum is a paramount consideration in any determination of a
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`transfer request" brought pursuant to § 1404( a), and that this choice "should not be
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`lightly disturbed." 431 F.2d at 25 (internal quotation marks and citation omitted).
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`The parties have not cited and I am not aware of any Third Circuit or United States
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`Supreme Court case that overruled Shutte. Jumara cited Shutte favorably and
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`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).
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`3
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`Case 1:17-cv-01635-CFC Document 33 Filed 10/31/18 Page 5 of 20 PageID #: 533
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`reiterated Shutte' s admonition that "the plaintiffs choice of venue should not be
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`lightly disturbed." Jumara, 55 F .3d at 879 (internal quotation marks and citation
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`omitted). Thus, I agree with Realtime that binding Third Circuit law compels me
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`to treat its forum choice as "a paramount consideration" in the § 1404( a) balancing
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`analysis.
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`F ortinet, however, asks me to ignore Shutte' s unambiguous language ( and
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`Jumara's endorsement of Shutte) and instead give Realtime's forum choice "little
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`weight" because ( 1) Realtime has not "offer[ ed] evidence explaining its rationale"
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`for choosing the District of Delaware as a forum, D.I. 23 at 2-3; see also id. at 2
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`("Although the cases cited by Realtime state that 'the court should not consider
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`simply the fact of that choice, but the reasons behind that choice,' Realtime fails to
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`provide the court with any rationale for its choice of forum." ( emphasis in
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`original)); (2) the District of Delaware is not Realtime's "home turf," D.I. 15 at 4-
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`5; D.I. 23 at 2; and (3) the facts underlying the parties' dispute did not occur in
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`Delaware, D.I. 15 at 4-5; D.I. 23 at 2.
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`A. Realtime's Rationale for Choosing this District
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`Fortinet cites a line of cases in which district court and magistrate judges in
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`the Third Circuit looked to "the reasons behind" a plaintiffs forum choice and
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`gave reduced or even no weight to a plaintiffs forum selection if the plaintiff did
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`not have "legitimate, rational concerns" in choosing the forum. See D.I. 23 at 2-3
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`4
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`Case 1:17-cv-01635-CFC Document 33 Filed 10/31/18 Page 6 of 20 PageID #: 534
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`(citations omitted). I find, however, that these cases are not consistent with Shutte,
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`Jumara, or Supreme Court precedent.
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`Neither Shutte nor Jumara hold or even intimate that a plaintiff's rationale
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`or motive in selecting its forum choice is relevant for§ 1404(a) purposes. Putting
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`aside the practical difficulty of accurately discerning a plaintiff's rationale, to my
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`knowledge the Third Circuit has not held, and I do not believe, that a plaintiff's
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`rationale in selecting a forum is relevant to the transfer inquiry.
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`The availability of multiple lawful venues is a fundamental feature of our
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`federal system that invites competent counsel to advise their clients to select the
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`litigation forum that best aligns with the clients' interests. When choosing among
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`available venues, plaintiffs understandably-and legitimately-weigh a host of
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`considerations, including, for example, the laws that would apply in the competing
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`venues, the relative speed with which the venues move cases, the manner in which
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`the venues handle discovery disputes, the scope of discovery allowed by the
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`venues, and the plaintiffs' assessments of the venues' judges and the likelihood
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`those judges would rule in the plaintiffs' favor. Every sophisticated plaintiff that
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`can bring a lawsuit in multiple venues engages in forum shopping when it chooses
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`a particular venue. The Court's concern is whether the venue choice is permitted
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`by statute, not what motivated the plaintiff to select the venue.
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`5
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`Case 1:17-cv-01635-CFC Document 33 Filed 10/31/18 Page 7 of 20 PageID #: 535
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`The principle that a plaintiff can lawfully engage in forum shopping is
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`sufficiently fundamental to our federal system that the Supreme Court has called
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`the plaintiff's choice of forum a "venue privilege." See At!. Marine Constr. Co. v.
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`U.S. Dist. Court for the W. Dist. of Texas, 571 U.S. 49, 63 (2013) ("Because
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`plaintiffs are ordinarily allowed to select whatever forum they consider most
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`advantageous ( consistent with jurisdictional and venue limitations), we have
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`termed their selection the 'plaintiff's venue privilege."'). And twice in the context
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`of a§ 1404(a) transfer motion, the Court has recognized the legitimacy of forum
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`shopping by a plaintiff.
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`In Van Dusen v. Barrack, 376 U.S. 612 (1964), the Court held that when a
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`diversity suit is transferred under § 1404( a) at the request of the defendant, the
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`transferee court is required to follow the choice-of-state-law rules that would have
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`existed in the transferor court. Id. at 639. The Court reasoned that§ 1404(a)
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`should not deprive the plaintiff of state-law advantages it would have enjoyed in
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`the transferor court. Id. at 633-34. The Court explained that "[section] 1404(a)
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`was not designed to narrow the plaintiff's venue privilege ... but rather the
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`provision was simply to counteract the inconveniences that flowed from the venue
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`statutes by permitting transfer to a convenient federal court." Id at 63 5.
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`In Ferens v. John Deere Co., 494 U.S. 516 (1990), the Court extended Van
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`Dusen's holding to§ 1404(a) transfers made at a plaintiff's request. Id. at 519.
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`6
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`Case 1:17-cv-01635-CFC Document 33 Filed 10/31/18 Page 8 of 20 PageID #: 536
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`F erens, who had been injured in a Pennsylvania farm accident, failed to file a tort
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`action in Pennsylvania within the applicable two-year statute of limitations. Id. In
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`the third year after the accident, F erens and his wife filed a diversity contract case
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`against John Deere in the Western District of Pennsylvania and then filed a second
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`diversity tort action against John Deere in the Southern District of Mississippi,
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`where, under Mississippi choice-of law rules, a six-year statute of limitations
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`applied. Id. at 519-20. At this point, to use the Supreme Court's words, ''the
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`Ferenses took their forum shopping a step further," as they requested and obtained
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`a § 1404( a) transfer of the Mississippi action to the Western District of
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`Pennsylvania. Id. at 520. The Pennsylvania district court consolidated the actions
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`but held that because the Ferenses had moved for the transfer as plaintiffs, the Van
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`Dusen rule did not apply and therefore Pennsylvania's two-year statute of
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`limitations barred the Ferenses' tort claims. Id. at 520-21. The Third Circuit
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`affirmed the district court's holding. Id. at 521.
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`In reversing the Third Circuit's decision, the Supreme Court explained in
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`relevant part:
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`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.
`* * * *
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`7
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`Case 1:17-cv-01635-CFC Document 33 Filed 10/31/18 Page 9 of 20 PageID #: 537
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`[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.
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`Id. at 525-31. This quoted language makes clear to me that a plaintiffs rationale
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`behind its forum selection, even if the rationale is "manipulative," is irrelevant for
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`§ 1404(a) purposes.
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`8
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`Case 1:17-cv-01635-CFC Document 33 Filed 10/31/18 Page 10 of 20 PageID #: 538
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`In this case, it is undisputed that Delaware is a proper forum for this action.
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`See 28 U.S.C. 1400(b) ("Any civil action for patent infringement may be brought
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`in the judicial district where the defendant resides, or where the defendant has
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`committed acts of infringement and has a regular and established place of
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`business."). Since Fortinet is a Delaware company, the Supreme Court's decision
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`in TC Heartland LLC v. Kraft Foods Group Brands LLC, 137 S. Ct. 1514 (2017)
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`would foreclose any argument that venue does not lie in this District. See id. at
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`1521 (holding that under § 1400(b) a domestic corporation "resides" only in its
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`state of incorporation). Accordingly, I will not look to the reasons behind
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`Realtime's selection of Delaware as a forum; nor will I give less weight to
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`Realtime's forum choice on the grounds that it had not articulated its rationale to
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`F ortinet' s satisfaction. 2
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`B. Lack of Delaware Connections
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`F ortinet also cites in support of its position certain opinions issued by district
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`court and magistrate judges in the Third Circuit that appear to assign less weight to
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`a plaintiffs forum choice when the forum is not the plaintiffs "home turf'-that
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`is, if the plaintiff has limited or no facilities, operations, or employees in the
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`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 )").
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`9
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`Case 1:17-cv-01635-CFC Document 33 Filed 10/31/18 Page 11 of 20 PageID #: 539
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`forum-and/or when the facts giving rising to the lawsuit did not occur in the
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`plaintiffs selected forum. See D.I. 15 at 4-5 (citations omitted). I am not,
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`however, persuaded that these opinions are consistent with Shutte. I will instead
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`follow Judge Stapleton's lead in Burroughs Wellcome Co. v. Giant Food, Inc., 392
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`F. Supp. 761 (D. Del. 1975).
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`Like Judge Stapleton, I read Shutte's "statement of 'black letter law' as an
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`across-the-board rule favoring plaintiffs choice of forum." Id. at 763. As Judge
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`Stapleton explained in rejecting the "home-turf' rule argued by the defendant in
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`Burroughs:
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`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).
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`Id. at 763 n.4.
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`I, too, find it difficult to understand why the plaintiffs forum choice in and
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`of itself merits less weight when the plaintiff has no ties to the selected forum or
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`10
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`Case 1:17-cv-01635-CFC Document 33 Filed 10/31/18 Page 12 of 20 PageID #: 540
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`when the facts underlying the controversy occurred elsewhere. I do not mean to
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`suggest that these two latter considerations will not impact the overall transfer
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`analysis. On the contrary, because these considerations are subsumed and given
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`weight under Jumara factors 3 ( whether the claim arose elsewhere), 4
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`( convenience of the parties), 5 ( convenience of the witnesses), 6 (location of books
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`and records), 8 (practical considerations that could make the trial easy, expeditious,
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`or inexpensive), and 10 (the local interest in deciding local controversies at home),
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`a defendant seeking to transfer a case when neither the plaintiff nor the facts giving
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`rise to the case have any connection to the selected forum will generally have less
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`difficulty in meeting its burden to establish that the Jumara factors weigh strongly
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`in favor of transfer.
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`I do not believe that the Federal Circuit's opinion in In re Link_ A_ Media
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`Devices Corp., 662 F.3d 1221 (Fed. Cir. 2011) compels a different conclusion. In
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`Link_A_Media, the Federal Circuit vacated this court's denial of a§ 1404(a)
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`motion to transfer a patent case filed here by a non-United States company. Id. at
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`1222. The Federal Circuit held that this court committed a "fundamental error [in]
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`making [the plaintiffs] choice of forum and the fact of [the defendant's]
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`incorporation in Delaware effectively dispositive of the transfer inquiry." Id. at
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`1223. Although the Federal Circuit did not cite Shutte in Link_A_Media, it applied
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`11
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`Case 1:17-cv-01635-CFC Document 33 Filed 10/31/18 Page 13 of 20 PageID #: 541
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`Third Circuit law and noted that "[t]o be sure, the Third Circuit places significance
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`on a plaintiffs choice of forum." Id.
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`In dicta in Link_A_Media, the court noted that "[w]hen a plaintiff brings its
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`charges in a venue that is not its home forum, ... that choice of forum is entitled to
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`less deference." Id. I understand this statement, however, to apply only when the
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`plaintiff, like the plaintiff in Link_A_Media, is a non-United States company. I
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`draw this inference because the court cited in support of its statement two Supreme
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`Court decisions, Sinochem International Co. v. Malaysia International Shipping
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`Corp., 549 U.S. 422 (2007) and Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981),
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`neither of which involved transfer motions brought pursuant to§ 1404(a). Rather,
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`in both Sinochem and Piper Aircraft, the Supreme Court reviewed dismissals of
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`actions filed by non-United States plaintiffs based on the common-law forum non
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`conveniens doctrine. As the Court explained in Piper Aircraft, "1404(a) transfers
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`are different than dismissals on the ground of forum non conveniens." 454 U.S. at
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`253. Unlike§ 1404(a), "[t]he common-law doctrine of forum non conveniens has
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`continuing application [in federal courts] only in cases where the alternative forum
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`is abroad, and perhaps in rare instances where a state or territorial court serves
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`litigational convenience best." Sinochem, 549 U.S. at 430 (second alteration in
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`original) (internal quotation marks and citation omitted). The doctrine "is designed
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`in part to help courts avoid conducting complex exercises in comparative law" and
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`12
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`Case 1:17-cv-01635-CFC Document 33 Filed 10/31/18 Page 14 of 20 PageID #: 542
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`thus enables a district court to dismiss the case where it would be otherwise
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`"required to untangle problems in conflict of laws, and in law foreign to itself."
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`Piper Aircraft, 454 U.S. at 251 (internal quotation marks and citation omitted).
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`Because these concerns about foreign law and comparative law issues are not
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`implicated by a§ 1404(a) transfer motion in a patent case filed by a domestic
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`plaintiff, I understand Link_ A _Media to say that a plaintiffs forum choice in a
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`patent case merits "less deference" for§ 1404(a) purposes only if the plaintiff does
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`not reside in the United States.
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`In this case, Real time is a domestic company, and therefore I will follow
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`Shutte and give Realtime' s forum choice paramount consideration in balancing the
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`Jumara factors.
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`TI.
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`DEFENDANT'S FORUM PREFERENCE
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`This factor favors transfer.
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`Ill. WHETHER THE CLAIM AROSE ELSEWHERE
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`This factor bears only slightly on the transfer analysis. On one hand, it
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`appears that F ortinet' s research and development efforts associated with the
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`products accused of infringing Realtime's patents occurred in the Northern District
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`of California-at Fortinet's headquarters in Sunnyvale and at another Fortinet
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`office in Union City. The connection between those efforts and the Northern
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`District favors transfer. See In re Hoffmann-La Roche, Inc., 587 F.3d 1333, 1338
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`13
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`Case 1:17-cv-01635-CFC Document 33 Filed 10/31/18 Page 15 of 20 PageID #: 543
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`(Fed. Cir. 2009). On the other hand, some of the research and development
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`activities relevant to this action occurred outside of the Northern District-in
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`Vancouver, Canada. Moreover, patent claims arise wherever the allegedly(cid:173)
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`infringing products are sold, Treehouse Avatar LLC v. Valve Corp., 170 F. Supp.
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`3d 706, 710 (D. Del. 2016) (first citing 35 U.S.C. § 271(a); then citing Red Wing
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`Shoe Co., Inc. v. Hockerson-Halberstadt, Inc., 148 F.3d 1355, 1360 (Fed. Cir.
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`1998)), and Fortinet acknowledged at oral argument that the accused products in
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`this case are marketed and sold in Delaware, see Tr. of Oct. 16, 2018 Hr'g at 12.
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`Overall, this factor weighs in favor of transfer, but only slightly.
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`IV. THE CONVENIENCE OF THE PARTIES AS INDICATED BY THEIR
`RELATIVE PHYSICAL AND FINANCIAL CONDITION
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`This factor favors transfer, but only slightly. "[A]bsent some showing of a
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`unique or unexpected burden, a company should not be successful in arguing that
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`litigation in its state of incorporation is inconvenient." ADE Corp. v. KLA-Tencor
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`Corp., 138 F. Supp. 2d 565, 573 (D. Del. 2001). Fortinet is incorporated in
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`Delaware. To establish "inconvien[ce]," therefore, Fortinet must show that it
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`would face "a unique or unexpected burden" in having to litigate this case in this
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`District.
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`Fortinet has shown a probability that it would at least be marginally more
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`convenient to produce its witnesses and documents in the Northern District of
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`California than in Delaware, because most of F ortinet' s employees and documents
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`14
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`Case 1:17-cv-01635-CFC Document 33 Filed 10/31/18 Page 16 of 20 PageID #: 544
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`are already located in the Northern District. As the Northern District of California
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`and this District appear equally convenient for Realtime, which is litigating suits in
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`both fora, and Delaware is not a particularly inconvenient forum for F ortinet,
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`which is incorporated in Delaware, the convenience of the parties weighs slightly
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`in favor of transfer.
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`V.
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`THE CONVENIENCE OF THE WITNESSES
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`This factor carries weight "only to the extent that the witnesses may actually
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`be unavailable for trial in one of the fora." Jumara, 55 F.3d at 879; see also Smart
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`Audio Techs., LLC v. Apple, Inc., 910 F. Supp. 2d 718, 732 (D. Del. 2012) (noting
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`that this factor applies only insofar as "a witness actually will refuse to testify
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`absent a subpoena"). In addition, "witnesses who are employed by a party carry no
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`weight," because "each party is able, indeed, obligated to procure the attendance of
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`its own employees for trial." Affymetrix, Inc. v. Synteni, Inc., 28 F. Supp. 2d 192,
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`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
`
`
`
`Case 1:17-cv-01635-CFC Document 33 Filed 10/31/18 Page 17 of 20 PageID #: 545
`
`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
`
`
`
`Case 1:17-cv-01635-CFC Document 33 Filed 10/31/18 Page 18 of 20 PageID #: 546
`
`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-in(cid:173)
`
`suits. 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
`
`
`
`Case 1:17-cv-01635-CFC Document 33 Filed 10/31/18 Page 19 of 20 PageID #: 547
`
`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
`
`
`
`Case 1:17-cv-01635-CFC Document 33 Filed 10/31/18 Page 20 of 20 PageID #: 548
`
`XII. FAMILIARITY OF THE TRIAL JUDGES WITH THE APPLICABLE
`STATE LAW IN DIVERSITY CASES
`
`Real time'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
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`
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