Selective Joinder of Eastern Retailers to Buttress EDTX Venue Against West Coast Manufacturer Proves Unsuccesful

The court granted a manufacturer defendant's motion to sever and transfer venue from the Eastern District of Texas to the Western District of Washington. The interests of justice factor weighed in favor of transfer because of plaintiff's litigation tactics. "[T]he litigation tactics [plaintiff] has employed in an attempt to maintain venue in this District are now in clearer focus. Those tactics have not supported the interests of justice. Defendants have had to wait nearly two and a half years to have their motion to transfer properly heard. . . . Even though neither [plaintiff] nor [movant] had ties to this District, [plaintiff] filed suit in this Court alleging infringing acts against not only [movant], but also nineteen Retailers . . . located almost entirely in the eastern half of the country. . . . Tellingly, [plaintiff] did not accuse other major retailers like Amazon.com, Costco, Fry’s, or eBay, which are located in Washington and California. [Plaintiff] then used the presence of the accused Retailers to argue that the case should not be transferred. It also added claims against the Retailers regarding non-[movant] products and used the presence of those added claims to argue that the case against [movant] should not be severed. Now, [plaintiff] argues that it should benefit from the judicial experience gained during the nearly two and a half year delay it perpetuated. [Plaintiff's] tactics are not in the interest of justice, but contrary to it."

UltimatePointer, LLC v. Nintendo Co., Ltd., et al, 6-11-cv-00496 (TXED June 17, 2014, Order) (Davis, J.)