Monday, November 5, 2007

Worth a Read

Late last month the Fifth Circuit handed down In re Volkswagen of America Inc., an opinion in which the court reevaluates the appropriate weight to be given the plaintiff's choice of forum when deciding whether to make a 1404(a) transfer. The district court refused to transfer because the balance of public and private interest factors did not weigh substantially in favor of transfer.  The Fifth Circuit found error in the trial court's analysis.  Before saying that its "precedents have not been the model of clarity," the court of appeals said:

We agree, then, with the contention that the district court erred in requiring Volkswagen to show that the balance of convenience and justice substantially weighs in favor of transfer.  Plaintiff's choice of forum is entitled to deference.  Indeed, this deference establishes the burden that a moving party must meet in seeking a s 1404(a) transfer.  But the appropriate standard for this burden is that established by Humble Oil.  Namely, a party seeking a transfer "must show good cause."  When viewed in the light of s 1404(a), to show good cause means that a party must demonstrate that a transfer is "for the convenience of parties and witnesses, in the interest of justice."  When the transferee forum is no more convenient than the chosen forum, the plaintiff's choice should not be disturbed.  When the transferee forum is clearly more convenient, a transfer should be ordered (emphasis added).

The Volkswagen decision was an appeal from the Eastern District of Texas, Marshall Division, which reminds me of this article last year in the New York Times about the little Texas town of Marshall--home of both the Fire Ant Festival and some of the most significant patent litigation in the world.--Counseller

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