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Cited As of: Feb 06, 2007 DIPPOLD-HARMON ENTERPRISES, INC., Plaintiff, v. LOWE'S COMPANIES, INC., Defendant. C.A. No. 01-532 GMS UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE 2001 U.S. Dist. LEXIS 18547 November 13, 2001, Decided DISPOSITION: [*1] Defendant's motion to dismiss for lack of personal jurisdiction was denied. Defendant's alternative motion to transfer action to Western District of North Carolina was granted. ("Lowe's"), the parent corporation of Home Centers, in Delaware. Before the court is Lowe's' motion to dismiss, or alternatively, to transfer this case to the Western [*2] District of North Carolina, or to stay this case pending the outcome of that litigation. Lowe's argues that the court should dismiss this action because the court lacks personal jurisdiction over it. It further argues that, should the court not dismiss this action, the case should be transferred to North Carolina pursuant to the "first-filed" rule and 28 U.S.C. § 1404(a). For the reasons that follow, the court will deny Lowe's motion to dismiss for lack of personal jurisdiction, but will grant Lowe's motion to transfer. II. BACKGROUND Dippold-Harmon is a Delaware corporation, with its principle place of business in Delaware. Lowe's is a North Carolina corporation with its principal place of business in North Carolina. It is the world's second largest home improvement retailer, serving more than five million customers weekly. Lowe's maintains that it is not, and has never been, registered or qualified to do business in Delaware. It further asserts that it does not have a registered agent for the service of process in Delaware. Home Centers is a wholly-owned subsidiary corporation of Lowe's. It is a North Carolina corporation registered to conduct [*3] business in Delaware, although its principle place of business is in North Carolina. Lowe's maintains significant control over its subsidiary. Lowe's sends its corporate representatives to its retail stores, including Home Centers, and then directs the stores to Page 1

COUNSEL: For DIPPOLD-HARMON ENTERPRISES INC., plaintiff: William J. Wade, Richards, Layton & Finger, Wilmington, DE. For LOWE'S COMPANIES INC, defendant: W. Harding Drane, Jr., Leonard S. Togman, Potter Anderson & Corroon, LLP, Wilmington, DE. JUDGES: Gregory M. Sleet, UNITED STATES DISTRICT JUDGE. OPINION BY: Gregory M. Sleet OPINION: MEMORANDUM AND ORDER I. INTRODUCTION On May 23, 2001, Lowe's Home Centers, Inc. ("Home Centers"), filed a complaint against the defendant Dippold-Harmon Enterprises, Inc. ("DippldHarmon") in the General Court of Justice, Superior Court Division, located in North Carolina. On July 27, 2001, Dippold-Harmon removed that action to the United States District Court for the Western District of North Carolina. On August 8, 2001, Dippold-Harmon filed the above-captioned action against Lowe's Companies, Inc.

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take certain actions in accordance with Lowe's policies. Other Lowe's high-level executives admit that they "supervise" and "oversee" the retail stores and travel to these stores on almost a daily basis. Furthermore, in Lowe's advertising materials, it proudly announces that it has more than six-hundred and fifty store in forty states, including four in Delaware. In actuality, the four stores in Delaware are its subsidiary Home Centers. On April 3, 1998, Home Centers entered into a written contract with Dippold-Harmon. The contract specified that Dippold-Harmon would install granite countertops for Home Centers' customers. In approximately 1998, Lowe's also hired Dippold-Harmon as a vendor for the sale and installation of granite kitchen countertops. At that time, Dippold-Harmon was one of several vendors that Lowe's utilized for the installation of these countertops. As Lowe's continued to open additional stores, it was [*4] faced with the costly proposition of installing countertop displays at each of these new stores. To ensure that the countertop displays were properly installed in a uniform manner, Lowe's representatives sought to hire a single vendor to install these displays. It also sought to hire a single vendor to install countertops for its individual customers. Dippold-Harmon maintains that the parties engaged in subsequent telephone negotiations aimed at making Dippold-Harmon the exclusive vendor for the installation of Lowe's countertop displays, as well as for countertops it sold to individual customers. Some of these discussions were initiated by Lowe's and were directed to Dippold-Harmon in Delaware. At a December 20, 1999 meeting with Dippold-Harmon, Lowe's executives Michael Gettler and Tammy Edson purportedly offered to make Dippold-Harmon its exclusive national vendor for the installation of granite countertops. Dippold-Harmon contends that, during the meeting, it accepted Lowe's' offer and entered into an oral "Exclusivity Agreement." The two companies also exchanged numerous letters and e-mails during this time concerning their vendor agreement. On May 23, 2001, Home Centers filed [*5] the North Carolina complaint against Dippold-Harmon. In its complaint, Home Centers alleges that Dippold-Harmon breached their April 3, 1998 written contract. Specifically, Home Centers contended that Dippold-Harmon failed to comply with their written contract's standards in the installation of countertops in the homes of individual customers. Dippold-Harmon filed this action against Lowe's on August 8, 2001, alleging that Lowe's breached their Exclusivity Agreement and acted fraudulently and with bad faith.

Because the court concludes that exercising personal jurisdiction over Lowe's in this instance comports with traditional notions of fair play and substantial justice as required by the Due Process Clause, and that Lowe's falls within the reach of Delaware's long-arm statute, the court will deny Lowe's' motion to dismiss. See International Shoe Co. v. Washington, 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154 (1945); DEL. CODE. ANN. tit. 10 § 3104(c)(2001). However, because the "balance of convenience" tips in favor of Lowe's, the court will grant its motion to transfer. III. DISCUSSION A. Jurisdiction The essence of Lowe's' argument is that, since it [*6] has not purposefully directed its activities to Delaware, the assertion of personal jurisdiction by the courts of this forum would violate the Due Process Clause. Lowe's further contends that its activities do not bring it within the reach of Delaware's long-arm statute. While Lowe's correctly frames the inquiry the court must make, the court disagrees with its analysis and reaches a different conclusion. 1. Due Process The Due Process Clause requires that, in order to subject a defendant who is "not present within the territory of the forum" to personal jurisdiction, the court must first make sure that the party "has certain minimum contacts with [the forum] state such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" International Shoe 326 U.S. at 316 (quoting Milliken v. Meyer, 311 U.S. 457, 463, 85 L. Ed. 278, 61 S. Ct. 339 (1940)). In order to give nonresidents "fair warning" that a particular activity may subject them to litigation within the forum, these "minimum contacts" must be purposeful. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 85 L. Ed. 2d 528, 105 S. Ct. 2174 (1985). [*7] In other words, the defendant's contacts must be of the nature that would cause it to reasonably foresee that it might be "haled before a court" in the forum as a result of its conduct. See WorldWide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 62 L. Ed. 2d 490, 100 S. Ct. 559 (1980). Finally, "even if the requisite minimum contacts have been found through an application of the stream of commerce theory or otherwise, if it would be unreasonable for the forum to assert jurisdiction under all the facts and circumstances, then due process requires that jurisdiction be denied." Beverly Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558, 1568 (Fed. Cir. 1994). Lowe's argues that its only contacts with Delaware are through Dippold-Harmon, which is a Delaware corporation. Specifically, Lowes' contends that its Home Page 2

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Centers contract with a Delaware corporation is, by itself, an insufficient basis to establish personal jurisdiction. The court agrees. See Blue Ball Properties, Inc. v. McClain, 658 F. Supp. 1310, 1316-17 (D. Del. 1987). However, the court finds that Lowe's has many more purposeful contacts with Delaware than it discloses [*8] in its brief. First, with regard to the Exclusivity Agreement in issue, Lowe's communicated regularly with DippoldHarmon by sending numerous letters and e-mails from North Carolina to Delaware. It also placed telephone calls to Dippold-Harmon in Delaware. These contacts alone would be sufficient to satisfy the minimum contacts analysis. See Hide Power and Equip. Co. v. Strates Enters., Inc., 1993 Del. Super. LEXIS 210, WL 258701, at *1 (Del. Super. June 15, 1993) (finding jurisdiction over a nonresident defendant based on a single visit to Delaware and two or three letters sent to Delaware); see also Mid-Atlantic Mach. & Fabric, Inc. v. Chesapeake Shipbuilding, Inc., 492 A.2d 250, 255 (Del. Super. 1985) (extending jurisdiction over a nonresident defendant where the negotiation and execution of the contract occurred entirely outside of Delaware, and the defendant's contacts with Delaware were limited to "an unspecified number of trips.") However, in addition to these direct contacts with Dippold-Harmon in Delaware, Lowe's is the world's second largest home improvement retailer. This fact alone would provide a sufficient basis for the court to seriously question the legitimacy of Lowe's' [*9] position. However, as previously noted, Lowe's has a wholly-owned subsidiary; that subsidiary, Home Centers, is registered to do business in Delaware, and operates four stores in this jurisdiction. Neither in its advertising material, nor in its internal communications, does Lowe's distinguish between its corporate stores and Home Centers stores. In fact, Lowe's announces the opening of new Home Centers stores as new Lowe's locations. Lowe's also maintains strict control over its Home Centers operations. It sends its representatives to the Home Centers stores and then directs those stores not in compliance with Lowe's policies to take certain actions to come into compliance. Such representatives have visited the Delaware stores. Lowe's also publicly admits to otherwise "supervising and overseeing" its stores, and sending Lowe's personnel to those stores, including Delaware locations. These facts support the conclusion that Lowe's should reasonably have anticipated being brought into court here. However, due process requires that the court make one more inquiry. Notwithstanding the existence of Lowe's purposeful minimum contacts with this forum, the court must consider whether [*10] the "minimum requirements inher-

ent in the concept of 'fair play and substantial justice. . .'defeat the reasonableness of [the assertion of] jurisdiction, even [if] the defendant has purposefully engaged in forum activities." Asahi Metal Indust. Co. v. Superior Court, 480 U.S. 102, 116, 94 L. Ed. 2d 92, 107 S. Ct. 1026 (1987). This question will only be answered affirmatively if the state's and the plaintiff's interest in having the dispute adjudicated in the forum are so minimal as to be outweighed by the burden imposed by subjecting the defendant to litigation within the forum. See Beverly Hills Fan, 21 F.3d at 1568. Here, the answer is plainly, no. Delaware has an interest in this action. Dippold-Harmon is a Delaware corporation. Clearly this forum's interests extend to corporate citizens that have sought the protection of Delaware's laws. Moreover, Delaware has an interest in addressing those purposeful activities conducted within its borders that result in allegations of injury. That interest extends to breaches of contract, such as that alleged here. Finally, Lowe's clearly has, through its Home Centers subsidiaries, significantly more than [*11] minimal contacts with this forum. Accordingly, the court concludes that the burden on Lowe's is not so onerous as to run afoul of traditional notions of fair play and substantial justice. 2. Delaware's Long-Arm Statute The second step in the court's analysis into the propriety of subjecting Lowe's to personal jurisdiction in this forum is the determination of whether any of the provisions of Delaware's long-arm statute apply. See DEL. CODE. ANN. tit. 10 § 3104 (2001). While Lowe's contends that it does not fall within the grasp of any of Section 3104's provisions, Dippold-Harmon contends that at least two of the provisions apply here. For purposes of this order, the court need only discuss one. Under subsection (c)(4), the court may exercise personal jurisdiction over anyone who causes injury either inside or outside of this State "by an act or omission outside of the State" if that individual "regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from services or things used or consumed in the State." DEL. CODE. ANN. tit. 10, § 3104(c)(2001). n1 The court will interpret this language broadly, as [*12] reaching the "maximum parameters of the due process clause." See Jeffreys v. Exten, 784 F. Supp. 146, 151 (D. Del. 1992).

n1 This subsection provides general jurisdiction over the nonresident defendant. See Mendelson v. Delaware River and Bay Auth., 56 F. Supp. 2d 436, 439 (D. Del. 1999). Accord-

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ingly, it is immaterial whether the jurisdictional contact is related to the claim. See id. As discussed above, Lowe's directed telephone calls and numerous items of correspondence to Delaware in relation to the disputed Exclusivity Agreement. Through its wholly-owned subsidiary, Home Centers, Lowe's also operated, maintained, and directly supervised four stores in Delaware. Finally, Lowe's has not in any way publicly differentiated itself from the Home Centers locations in Delaware. Consequently, it cannot now complain that it should not be sued here. Finding sufficient contacts to subject Lowe's to personal jurisdiction under both the State's long-arm statute and the Due Process [*13] Clause, the court will now move to a discussion of whether this action should be transferred to the Western District of North Carolina. n2

parties for the purposes of the "first-filed" rule. For the reasons stated in Section A.1, supra, the court is satisfied that Lowe's and Home Centers are effectively the same party. Second, with regard to Dippold-Harmon's argument that different issues are presented in the Delaware and North Carolina actions, the court again disagrees. The North Carolina action concerns the breach of a written agreement between Home Centers and Dippold-Harmon. [*15] The written agreement provided that DippoldHarmon would install granite countertops for its customers in a certain fashion. The Delaware action concerns the breach of an alleged oral agreement between Lowe's and Dippold-Harmon. This alleged oral agreement provided that Dippold-Harmon would be the exclusive distributor of those granite countertops. Both actions thus concern different facets of the same business relationship between the parties. Specifically, both actions relate to Dippold-Harmon's status as a fabricator and installer of granite countertops for Lowe's and Home Centers' customers. A decision by the North Carolina court on the validity, or breach, of the written agreement will bear directly on the alleged oral agreement concerning the same type of services. To have two separate trials on these issues would defeat the purposes of the "first-filed" rule, namely sound judicial administration and comity among federal courts of equal rank. See EEOC, 850 F.2d at 971. Accordingly, the court finds that the application of this rule weighs heavily in favor of transferring this case to North Carolina. 2. Section 1404(a) Transfer to North Carolina is also mandated [*16] under a section 1404(a) analysis. Section 1404(a) provides that "for the convenience of [the] parties and [the] witnesses, in the interest of justice," the court may transfer this action to "any other district where it might have been brought." 28 U.S.C. § 1404(a). The parties agree that this action could have been filed in the Western District of North Carolina as a diversity action. The court will, therefore, move on with the inquiry as directed by the Third Circuit. See Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995). In Jumara, the Third Circuit provided a list of factors to assist the district courts in determining "whether, on balance, the litigation would more conveniently proceed and the interests of justice [would] be better served by a transfer to a different forum." Id. These factors include six private and five public interests which the court should consider. See id. a. The Private Interests The private interests most relevant to this case include: (1) the convenience of the parties as indicated by

n2 In its motion to dismiss, Lowe's also alleges that this action should be dismissed for lack of venue and insufficient service of process. However, both of these claims are based solely on its argument that the court lacked personal jurisdiction. As the court has found personal jurisdiction, these arguments too must fail. B. Venue As previously noted, Lowe's seeks to transfer this action pursuant to the "first-filed" rule and 28 U.S.C. § 1404(a). 1. The "First-Filed" Rule The "first-filed" rule is a judicially-created doctrine that is designed to avoid concurrent litigation of the same issues, between the same parties, in more than one federal court. See EEOC v. University of Pennsylvania, 850 F.2d 969, 971-72 (3d Cir. 1988). As its name implies, the rule generally provides that a later-filed action should be stayed pending the [*14] resolution of an earlier filed action, or transferred to the court in which the earlierfiled action is pending. See Peregrine Corp. v. Peregrine Indus., Inc., 769 F. Supp. 169, 171 (E.D. Pa. 1991). While Dippold-Harmon does not dispute that the North Carolina action was filed first, it argues that this rule should not apply to the present case because different parties and different issues are presented in the Delaware and North Carolina actions. The court finds this argument unpersuasive. First, Dippold-Harmon itself aggressively argued that Lowe's and Home Centers should be considered one and the same party for purposes of establishing personal jurisdiction. The court will not now find that Lowe's and Home Centers are different

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their relative physical and financial position; (2) the convenience of the witnesses, but only to [*17] the extent that they may be unavailable for trial in one of the fora; and (3) the location of records and other documents, again, only to the extent these files cannot be produced in the alternate forum. n3 See id.

n3 For the reasons the court discussed in a previous opinion, it will not afford any weight to the first three Jumara factors, specifically, the plaintiff's initial choice of forum, the defendant's preferred venue, and whether the claim arose elsewhere. See Affymetrix, Inc. v. Synteni, Inc., 28 F. Supp. 2d 192, 197-201 (D. Del. 1998). In not affording weight to these factors, the court avoids the risk of double-counting these interests and thereby throwing off the transfer analysis. See id. Instead, the court will consider whether the Western District of North Carolina is a more convenient forum for the parties and the witnesses, while also serving the interests of justice. See 28 U.S.C. § 1404(a). 1. The Convenience of the Parties Physically, [*18] North Carolina is moderately inconvenient for Dippold-Harmon, which is headquartered in Delaware. Thus, in order to litigate this matter in North Carolina, it must travel several hours. However, modern communication and transportation capabilities make this moderate journey far less burdensome than it would have been at one time. See Beverly Hills Fan, 21 F.3d at 1569 (noting that it is not unduly burdensome for a defendant organized under the laws of the People's Republic of China to litigate in Virginia.). Because it is a national distributor of granite and stone kitchen fixtures, Dippold-Harmon is also financially capable of shouldering this burden. As such, it is doubtful that litigating in North Carolina would be an undue financial burden. Furthermore, transfer to North Carolina would reduce the overall inconvenience to all parties involved. Dippold-Harmon must already travel to North Carolina to defend itself in the first-filed action pending in the Western District of North Carolina. Bringing witnesses and relevant documents to only one location, here North Carolina, minimizes the level of disruption caused to both parties by the litigation. This is certainly [*19] a more economical and efficient result than having each party moving witnesses and documents between two states, depending on which of these related actions is being litigated at that time. 2. The Convenience of Witnesses

Party witnesses or witnesses who are employed by a party carry no weight in the "balance of convenience" analysis since each party is able, indeed obligated, to procure the attendance of its own employees for trial. See Affymeytrix, 28 F. Supp. 2d at 203. Expert witnesses or witnesses who are retained by a party to testify carry little weight in determining where the "balance of convenience" lies because they are "usually selected [on the basis] of their reputation and special knowledge without regard to their residences and are presumably well compensated for their attendance, labor and inconvenience, if any. See id. (internal citations omitted). Fact witnesses who posses first-hand knowledge of the events giving rise to the lawsuit, however, have traditionally weighed quite heavily in the "balance of convenience" analysis. See id. Dippold-Harmon argues that Lowe's has failed to demonstrate that transfer to North Carolina would be more [*20] convenient for potential non-party fact witnesses. The court agrees, and notes that Lowe's' bare allegations of witness inconvenience, without more, are insufficient to tip the balance in its favor. However, all the material witnesses in this dispute, party or otherwise, will be in North Carolina already to litigate the first-filed action. Requiring that they then come to Delaware to litigate this action separately cannot be considered convenient and in the interest of justice. Accordingly, the court finds that this factor also weighs in favor of transferring the action to North Carolina. 3. The Location of Records and Other Documents The technological advances of recent year have significantly reduced the weight of this factor in the "balance of convenience" analysis. See id. at 205. Furthermore, the relevant documents will already be in North Carolina for the litigation of the first-filed action. The court thus sees no need to require that Lowe's, Home Centers, and Dippold-Harmon move the same documents from North Carolina to Delaware. Rather, it would be much more efficient to litigate these related actions in one location. b. The Public Factors As other courts [*21] have noted, depending on the circumstances of the case, some of the "public interest" factors listed in Jumara may play no role in the "balance of convenience." See id. at 205. The court thus elects to discuss only the three factors which the parties deem relevant to the pending case. 1. Practical Considerations Making Trial Easy, Expeditious, or Inexpensive This factor appears to substantially repeat the "firstfiled" analysis advanced by Lowe's, and accepted by the court, in Section 2.B, supra. As such, the court declines Page 5

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to further address this issue here, since it has already taken this argument into consideration. 2. Delaware's Interest in Deciding This Action Dippold-Harmon claims that Delaware has a far stronger interest in resolving this action since DippoldHarmon is a Delaware corporation. While the court is mindful of Delaware's interest, that alone will not tip the "balance of convenience" in its favor. This is so because the court can hardly describe the alleged Exclusivity Agreement as a local controversy unique to Delaware. See Affymetrix, 28 F. Supp. 2d at 207. Instead, this alleged agreement concerns Dippold-Harmon's status [*22] as Lowe's' exclusive, national distributor. By its very nature then, the agreement is not local and unique to only Delaware, but rather, affects every state included in the alleged Exclusivity Agreement. Furthermore, the court notes that Dippold-Harmon appears to concede that the alleged Exclusivity Agreement was not formed in Delaware and would not be governed by Delaware law. Accordingly, this factor does not weigh in favor of denying Lowe's motion to transfer. 3. Collective Travel Time and Cost The final public interest factor identified by Lowe's concerns the time and cost allegedly associated with the potential witnesses' travel time to Delaware. This factor, however, duplicates other factors necessary to the court's transfer analysis, namely the private factors considering the convenience and availability of witnesses and the location of documents. The court has already rejected

these arguments in its earlier discussion of the "private" factors in the "balance of convenience" analysis. IV. CONCLUSION For the foregoing reasons, the court concludes that Lowe's is subject to personal jurisdiction in Delaware, however, the "balance of convenience" tips strongly in favor [*23] of transferring this action to the Western District of North Carolina. For these reasons, IT IS HEREBY ORDERED, ADJUDGED, and DECREED that:

1. Lowe's motion to dismiss for lack of personal jurisdiction (D.I. 8) is DENIED, and Lowe's alternative motion to transfer this action to the Western District of North Carolina (D.I. 8) is GRANTED; and 2. The above-captioned matter is hereby TRANSFERRED to the United States District Court for the Western District of North Carolina.

Dated: November 13, 2001 Gregory M. Sleet UNITED STATES DISTRICT JUDGE

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LEXSEE

3COM CORPORATION, Plaintiff v. D-LINK SYSTEMS, INC., Defendant. C.A. No. 03-014 GMS UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE 2003 U.S. Dist. LEXIS 7120 April 25, 2003, Decided DISPOSITION: [*1] Defendant's motion to transfer case to United States District Court for Northern District of California granted. II. DISCUSSION D-Link moves to [*2] transfer this action to the District Court for the Northern District of California pursuant to 28 U.S.C. § 1404(a). Section 1404(a) provides that "for convenience of [the] parties and witnesses, in the interest of justice," the court may transfer a civil action "to any other district ... where it might have been brought." 28 U.S.C. § 1404(a). It is the movant's burden to establish the need for transfer, and 'the plaintiff's choice of venue [will] not be lightly disturbed.' Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995) (citations omitted). When considering a motion to transfer, the court must determine 'whether on balance the litigation would more conveniently proceed and the interest of justice be better served by transfer to a different forum.' Id. This inquiry requires "a multi-factor balancing test" embracing not only the statutory criteria of convenience of the parties and the witnesses and the interest of justice, but all relevant factors, including certain private and public interests. Id. at 875, 879. These private interests include the plaintiff's choice of forum; the [*3] defendant's preference; whether the claim arose elsewhere; and the location of books and record, to the extent that they could not be produced in the alternative forum. n1 Id. at 879. Among the relevant public interests are: "the enforceability of the judgment; practical considerations that could make the trial easy, expeditious, or inexpensive; the relative administrative difficulty in the two fora resulting from court congestion; the local interest in deciding local controversies at home; [and] the public policies of the fora." Id. at 879-80 (citations omitted).

COUNSEL: For 3COM Corporation, PLAINTIFF: John W Shaw, Young, Conaway, Stargatt & Taylor, Wilmington, DE USA. For D-Link Systems Inc, DEFENDANT: John G Day, Steven J Balick, Ashby & Geddes, Wilmington, DE USA. For D-Link Systems Inc, COUNTER-CLAIMANT: John G Day, Steven J Balick, Ashby & Geddes, Wilmington, DE USA. For 3COM Corporation, COUNTER-DEFENDANT: John W Shaw, Young, Conaway, Stargatt & Taylor, Wilmington, DE USA. JUDGES: Gregory M. Sleet, UNITED STATES DISTRICT JUDGE. OPINION BY: Gregory M. Sleet OPINION: MEMORANDUM AND ORDER I. INTRODUCTION On January 7, 2003, the plaintiff, 3Com Corporation ("3Com") filed the instant action alleging infringement of three patents relating to network interface adapters. The defendant, D-Link Systems, Inc. ("D-Link"), moves to transfer this case to the United States District Court for the Northern District of California pursuant to 28 U.S.C. § 1404(a) (D.I. 11). For the following reasons, the court will grant the defendant's motion.

N1 The first three of these private interest collapse into other portions of the Jumara analysis. The court, therefore, will consider them in the context of the entire inquiry only. See Affymetrix,

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Inc. v. Synteni, Inc. and Incite Pharmaceuticals, Inc., 28 F. Supp. 2d 192 (D. Del. 1998). Upon consideration of these factors, the court finds that D-Link has met its burden of demonstrating that transfer [*4] is appropriate. First, it is clear that this case could have been brought in the Northern District of California. Any federal district court possesses subject matter jurisdiction over federal patent law claims such as those at issue in the present action. 28 U.S.C. § § 1331and 1338. Further, venue is proper in the Northern District of California because the defendant is a California corporation with its sole place of business in that state. 28 U.S.C. § 1400(b) ("Any civil action for patent infringement may be brought in the judicial district where the defendant resides ...."). Having determined that the case could be properly heard in the Northern District of California, the court now considers whether it would more conveniently proceed in that forum and whether the interest of justice supports a transfer to that district. Again, the court finds that these criteria are met. First, the court notes that although 3Com is a Delaware corporation, its principal place of business is in Santa Clara, California. D-Link is a California corporation with its sole place of business in Irvine, California. Although some of D-Link's products, including [*5] the accused products, are sold in Delaware, the connection to this forum ends there. Neither 3Com nor D-link maintains or owns any facility, property, or personnel in Delaware. Instead, the headquarters of both parties are located in California. Neither party has any books, records, or other documents in this district. Apparently, none of the acts related to the development of the accused products occurred in this district, while many, if not all, of these acts occurred in California. Clearly, litigating this case there would cause less disruption to business operations of each corporation, while eliminating the cost and time of cross-country transportation of persons and documents. In addition, DLink was forced to retain local counsel for purposes of litigating in this district. Were the case transferred to California, this additional expense would not be required. In addition, none of the anticipated third-party witnesses is subject to compulsory process in Delaware, but they may be compelled to testify in the Northern District of California. These witnesses include individuals involved in the development of the accused products, such as employees of the manufacturers of the products, [*6] Realtek Semiconductor Corp. ("Realtek") and Via Tech-

nologies, Inc. ("Via"). Realtek and Via are Taiwanese companies with offices and/or agents in northern California. Futhermore, at least one of the inventors of the accused products and one of the prosecuting attorneys could not be compelled to testify in this court. By contrast, each appears to live in northern California, and would be subject to compulsory process there. Finally, at least two witnesses with knowledge of allegedly invalidating prior art are subject to compulsory process in northern California, but not Delaware. Even if these witnesses were willing to travel to Delaware to testify in this court, it is certainly very inconvenient for them to do so, especially compared to traveling to a court in the state of their residence and employment. Convenience, cost, and expediency, then, favor a transfer. The remaining factors of court congestion, the enforceability of the judgment, and the public polices of the fora neither favor nor counsel against transfer. These factors remain neutral in the court's analysis. III. CONCLUSION In short, Delaware seems to have little interest in the present dispute between these [*7] parties, while justice, convenience, cost, and expediency favor a forum in California. The court recognizes that the Northern District of California is not the plaintiff's choice of forum for the present action; however, it is an exceedingly more convenient and appropriate forum than Delaware. In other words, the movant has shown that 'the litigation would more conveniently proceed and the interest of justice be better served by transfer' to California. Jumara, 55 F.3d at 879 (citations omitted). As such, transfer is appropriate. For the aforementioned reasons, IT IS HEREBY ORDERED that:

1. The defendant's Motion to Transfer the case to the United States District Court for the Northern District of California (D.I. 11) is GRANTED.

Dated: April 25, 2003 Gregory M. Sleet UNITED STATES DISTRICT JUDGE

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BAYER BIOSCIENCE N.V., Plaintiff, v. MONSANTO COMPANY, Defendant. C.A. No. 03-023 GMS UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE 2003 U.S. Dist. LEXIS 4594 March 25, 2003, Decided DISPOSITION: [*1] Motion to transfer case granted. II. BACKGROUND COUNSEL: For BAYER BIOSCIENCE N V, plaintiff: George Pazuniak, Connolly, Bove, Lodge & Hutz, Wilmington, DE. For MONSANTO COMPANY, defendant: Richard L. Horwitz, Potter Anderson & Corroon, LLP, Wilmington, DE. For MONSANTO COMPANY, counter-claimant: Richard L. Horwitz, Potter Anderson & Corroon, LLP, Wilmington, DE. For BAYER BIOSCIENCE N V, counter-defendant: George Pazuniak, Connolly, Bove, Lodge & Hutz, Wilmington, DE. JUDGES: Gregory M. Sleet, UNITED STATES DISTRICT JUDGE. OPINION BY: Gregory M. Sleet OPINION: MEMORANDUM AND ORDER I. INTRODUCTION On January 10, 2003, the plaintiff, Bayer Bioscience, N.V. ("Bayer"), filed the above-captioned action alleging that Monsanto Company ("Monsanto") is engaging in activity that infringes Bayer's U.S. Patent No. 5,659,123 ("the '123 patent"). Presently before the court is Monsanto's motion to transfer the case to the United States District Court for the Eastern District of Missouri pursuant to 28 U.S.C. § 1404(a). For the following reasons, the court will grant this motion. [*2] Bayer is a foreign corporation headquartered in Ghent, Belgium. Monsanto is a Delaware corporation, with its headquarters in St. Louis, Missouri. The patent at issue involves a corn product that has been genetically modified to express a particular "Bt" gene that makes the corn resistant to a type of Coleopteran insect known as the corn rootworm. For the past two years, Monsanto and Bayer have been engaged in litigation in the Eastern District of Missouri regarding four other patents assigned to Bayer. Those four patents all generally relate to crops genetically engineered with a "Bt gene," purportedly rendering the crops toxic to a class of insects known as Lepidopteran insects. On December 27, 2002, the Missouri District Court issued a summary judgment order finding that all four of the patents-in-suit in that case were unenforceable due to inequitable conduct. On January 10, 2003, Bayer filed the present action. Also on January 10, 2003, Monsanto filed a declaratory judgment action for noninfringement in the Missouri District Court. III. DISCUSSION A. The "First-Filed" Rule Where two patent lawsuits involving the same claims are filed in [*3] different jurisdictions, the Federal Circuit requires that the first-filed action be given preference absent special circumstances. See Genentech v. Eli Lilly & Co., 998 F.2d 931, 937 (Fed. Cir. 1993). The first-filed doctrine also serves to prevent a multiplicity of actions and to achieve resolution in a single lawsuit of all disputes arising from common matters. See id. at 937. Applying the first-filed rule, Bayer now argues that it would be improper for the court to transfer this firstfiled action to the Eastern District of Missouri. While the Page 1

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court does not dispute that this action is first-filed, albeit only by several hours, for the following reasons, the court concludes that the 1404(a) factors nevertheless weigh in favor of litigating this dispute in Missouri. See id. at 937-38 (noting that "the trial court's discretion tempers the preference for the first-filed suit, when such preference should yield to the forum in which all interests are best served."). B. Section 1404(a) Section 1404(a) provides that "for the convenience of [the] parties and [the] witnesses, in the interest of justice," the court may transfer [*4] this action to "any other district where it might have been brought." 28 U.S.C. § 1404(a). Bayer suggests that the Eastern District of Missouri may not have personal jurisdiction over it. n1 Importantly, however, Bayer fails to suggest that it could not have originally brought this action in Missouri, rather than in Delaware. Thus, because Bayer could have brought this action in the proposed transferee district, the court will move on with the inquiry as directed by the Third Circuit. See Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995).

n2 The first three of these private interest collapse into other portions of the Jumara analysis. The court, therefore, will consider them in the context of the entire inquiry only. See Affymetrix, Inc. v. Synteni, Inc. and Incite Pharmaceuticals, Inc., 28 F. Supp. 2d 192 (D. Del. 1998). [*6] Upon consideration of these factors, the court finds that Monsanto has met its burden of demonstrating that transfer is appropriate. In reaching this conclusion, the court relied on the following considerations, among others: (1) while the defendant is a Delaware entity, and should reasonably expect to litigate in this forum, there is little connection between Delaware and this action or the parties; (2) no party maintains operations in Delaware; (3) the parties are large and international organizations with substantial assets; (4) because the parties are litigating apparently related issues in Missouri, travel time and convenience in the aggregate would be substantially increased with a transfer of forum; and (5) any disparity in court congestion is not so great as to weigh against transfer due to the "mirror image" action currently pending in the Eastern District of Missouri. Thus, given the ongoing relationship that the Eastern District of Missouri has with the same parties, and the same, or related, patent or patents, the court concludes that the public and private interests are sufficient to tip the balance of convenience strongly in favor of transfer. IV. CONCLUSION [*7] For the aforementioned reasons, IT IS HEREBY ORDERED that:

n1 As it is not the court's province to determine the question of another court's personal jurisdiction, the court expresses no opinion on this issue. When considering a motion to transfer, the court must determine 'whether on balance the litigation would more conveniently proceed and the interests of justice be better served by transfer to a different forum.' Id. This inquiry requires "a multi-factor balancing test" [*5] embracing not only the statutory criteria of convenience of the parties and the witnesses and the interests of justice, but all relevant factors, including certain private and public interests. Id. at 875, 879. These private interests include the plaintiff's choice of forum; the defendants' preference; whether the claim arose elsewhere; and the location of books and records, to the extent that they could not be produced in the alternative forum. n2 Id. at 879. Among the relevant public interests are: "the enforceability of the judgment; practical considerations that could make the trial easy, expeditious, or inexpensive; the relative administrative difficulty in the two fora resulting from court congestion; the local interest in deciding local controversies at home; [and] the public policies of the fora." Id. at 879-80 (citations omitted).

1. Bayer's Motion for Leave to File a SurReply (D.I. 10) is GRANTED as unopposed. 2. Monsanto's Motion to Transfer this case (D.I. 5) is GRANTED. 3. The above-captioned action is hereby TRANSFERRED to the United States District Court for the Eastern District of Missouri.

Dated: March 25, 2003 Gregory M. Sleet UNITED STATES DISTRICT JUDGE

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ALLERGAN, INC. and ALLERGAN SALES, LLC, Plaintiffs, v. ALCON LABORATORIES, INC., ALCON RESEARCH LTD., ALCON INC., and BAUSCH & LOMB, INC., Defendants. C.A. No. 02-1682-GMS UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE 2003 U.S. Dist. LEXIS 2564 February 25, 2003, Decided DISPOSITION: [*1] Defendants' motion to transfer this case granted. Presently before the court is Alcon and B&L's motion to transfer this action to the Central District [*2] of California, Southern Division. For the reasons that follow, the court will grant this motion. II. BACKGROUND Both of the plaintiffs are Delaware entities with their principle place of business in Irvine, California. The defendant Alcon Laboratories, Inc. is a Delaware corporation with its principal place of business in Forth Worth, Texas. Alcon Research, Ltd. is a limited partnership organized under the laws of Texas, with Alcon Laboratories, Inc. as a general partner. Alcon, Inc. is the parent of Alcon Laboratories, and is a Swiss corporation headquartered in Hunenberg, Switzerland. Finally, Bausch and Lomb is a New York corporation, with its principle place of business in Rochester, New York. On January 9, 2002, Allergan filed suit against Alcon and B&L in the Central District of California asserting infringement of United States Patent Nos. 6,199,415 B1 ("the '415 Patent") and 6,248,741 B1 ("the '741 Patent"). Alcon moved for summary judgment of noninfringement, which the court granted on May 8, 2002. See Allergan, Inc. v. Alcon Laboratories, Inc., 200 F. Supp. 2d 1219 (C.D. Cal. 2002). B&L subsequently filed a similar motion, which was also granted. [*3] On October 15, 2002, Allergan obtained the '464 patent, which issued as a continuation of the application that led to the '741 patent, which, in turn, is a continuation of the application that led to the '415 patent. The '464 patent is the subject of the current action. The defendants in the present case filed a "mirror image" declaratory judgment action against Allergan concerning the '464 patent in the Central District of California on December 23, 2002.

COUNSEL: For ALLERGAN INC., ALLERGAN SALES LLC, plaintiffs: William J. Marsden, Jr., Fish & Richardson, P.C., Wilmington, DE. For ALCON LABORATORIES, INCORPORATED, ALCON RESEARCH LTD., ALCON INC., defendants: Richard L. Horwitz, Potter Anderson & Corroon, LLP, Wilmington, DE. For BAUSCH & LOMB INC., defendant: Jack B. Blumenfeld, Morris, Nichols, Arsht & Tunnell, Wilmington, DE. JUDGES: Gregory M. Sleet, UNITED STATES DISTRICT JUDGE. OPINION BY: Gregory M. Sleet OPINION: MEMORANDUM AND ORDER I. INTRODUCTION On December 16, 2002, the plaintiffs, Allergan, Inc. and Allergan Sales, LLC (collectively "Allergan"), filed the above-captioned action seeking a declaratory judgment against the defendants, Alcon Laboratories, Inc., Alcon Research, Ltd., Alcon, Inc., and Bausch & Lomb, Inc. (collectively "Alcon and B&L"). Specifically, Allergan asserts infringement of its U.S. Patent No. 6,465,464 B2 ("the '464 Patent"). The '464 Patent is based on a continuation application of two Allergan patents asserted in a prior California action.

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III. DISCUSSION Alcon and B&L move to transfer this action to the District Court for the Central District of California, Southern Division pursuant to 28 U.S.C. § 1404(a). Section 1404(a) provides that "for convenience of [the] parties and witnesses, in the interest of justice," the court may transfer a civil action "to any other district ... where it might have been brought." 28 U.S.C. § 1404(a). The parties do not dispute that this action could have been filed in the Central District of California, Southern Division. The court will, therefore, move on with the inquiry as directed by the Third Circuit. See Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995). [*4] When considering a motion to transfer, the court must determine 'whether on balance the litigation would more conveniently proceed and the interest of justice be better served by transfer to a different forum.' Id. This inquiry requires "a multi-factor balancing test" embracing not only the statutory criteria of convenience of the parties and the witnesses and the interests of justice, but all relevant factors, including certain private and public interests. Id. at 875, 879. These private interests include the plaintiff's choice of forum; the defendants' preference; whether the claim arose elsewhere; and the location of books and record, to the extent that they could not be produced in the alternative forum. n1 Id. at 879. Among the relevant public interests are: "the enforceability of the judgment; practical considerations that could make the trial easy, expeditious, or inexpensive; the relative administrative difficulty in the two fora resulting from court congestion; the local interest in deciding local controversies at home; [and] the public policies of the fora." Id. at 879-80 (citations omitted).

Upon consideration of these factors, the court finds that the defendants have met their burden of demonstrating that transfer is appropriate. In reaching this conclusion, the court relied on the following considerations, among others: (1) while the plaintiffs and several of the defendants are Delaware entities, and should reasonably expect to litigate in the forum, there is little connection between Delaware and this action or the parties; (2) each party either maintains its principle place of business in California, or has facilities there, whereas no party maintains operations in Delaware; (3) the parties are large and international organizations with apparently substantial assets; (4) because the parties are already litigating essentially the same issues in California, travel time and convenience in the aggregate would be substantially increased with a transfer of forum; and (5) any disparity in court congestion is not so great as to weigh against transfer due to the defendants' "mirror image" action currently pending in the Central District of California, Southern Division. Thus, given the on-going relationship the Central District of California has with the same parties, and [*6] the same, or related, patents, the court concludes that the public and private interests are sufficient to tip the balance of convenience strongly in favor of the defendants. III. CONCLUSION For the aforementioned reasons, IT IS HEREBY ORDERED that:

1. The defendants' motion to transfer this case (D.I. 6) is GRANTED. 2. The above-captioned action is hereby TRANSFERRED to the United States District Court for the Central District of California, Southern Division.

n1 The first three of these private interest collapse into other portions of the Jumara analysis. The court, therefore, will consider them in the context of the entire inquiry only. See Affymetrix, Inc. v. Synteni, Inc. and Incite Pharmaceuticals, Inc., 28 F. Supp. 2d 192 (D. Del. 1998). [*5]

Dated: February 25, 2003 Gregory M. Sleet UNITED STATES DISTRICT JUDGE

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AMERICAN SENSOR RX, INC., Plaintiff, v. BANNER PHARMCAPS, INC., Defendant. Civil Action No. 06-1929 (FSH) UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY 2006 U.S. Dist. LEXIS 66993 September 6, 2006, Decided NOTICE: [*1] NOT FOR PUBLICATION to analyze numerous objects simultaneously and to identify microscopic flaws or deviations in certain products. A component of SensoRx's inspection system is a rejection device to separate and segregate those product items which fail to meet the pre-determined product specifications. Defendant Banner Pharmcaps, Inc. ("Banner") is a Delaware Corporation with its principal place of business located in High Point, North Carolina, which is located in the Middle District of North Carolina. Banner manufactures healthcare products, including soft gelatin capsules. On March 24, 2005, Plaintiff SensoRx made a written offer to design and manufacture a complete inspection system ("Inspection System") which met Defendant Banner's needs entitled "Rental Agreement for American SensoRx InspectRx Vision System" ("Agreement"). The Agreement indicated that the initial rental period would be three months, and at the end of this period, Banner would either purchase the system for the agreed price, extend the rental to another plan for the agreed time and price, or return the system to SensoRx. In the Agreement, Plaintiff promised to "refund 100% of the money paid [*3] to them for the system" if the system did not meet the requirements set forth in the Agreement. See Agreement at p. 2. On March 31, Defendant Banner signed the Agreement in North Carolina. On April 7, 2005, SensoRx requested Banner to pay a deposit of $ 45,000.00 toward the three-month rental price set forth in the Agreement. Banner paid this amount, and in late May 2005, SensoRx shipped the Inspection System to Banner in North Carolina. On June 11, 2005, Dr. Sabrie Solomon, president of SensoRx, traveled to North Carolina to install the Inspection System at Banner's facility. In its Answer, Defenses, and Counterclaim ("Counterclaim"), Defendant Banner alleged that although Solomon and his assistant attempted to install and bring the Inspection system on-line during June and July, it would not work properly. See Counterclaim at P 17-19. By August 2005, Banner determined

COUNSEL: For AMERICAN SENSOR, INC., Plaintiff:BRIAN R ADE, TIMOTHY BOYD PARLIN, RIVKIN RADLER LLP, SUMMIT, NJ US. For BANNER PHARMACAPS, INC., Defendant, Counter Claimant: STEPHEN L DREYFUSS, HELLRING LINDEMAN GOLDSTEIN & SIEGAL, NEWARK, NJ. For AMERICAN SENSOR, INC., Counter Defendant: BRIAN R ADE, RIVKIN RADLER LLP, SUMMIT, NJ US. JUDGES: HON. FAITH S. HOCHBERG, U.S.D.J. OPINION BY: FAITH S. HOCHBERG OPINION: HOCHBERG, District Judge I. INTRODUCTION This matter is before the Court on Defendant's Cross-Motion to Transfer the Case Pursuant to 28 U.S.C. § 1404(a) to the Middle District of North Carolina. The Court has made its determination after considering the written submissions of the parties and without oral argument pursuant to Fed.R.Civ.P. 78. For the reasons set forth below, the Defendant's Cross-Motion to Transfer the Case to the Middle District of North Carolina is granted. II. FACTUAL BACKGROUND Plaintiff American SensoRx, Inc. ("SensoRx") is a New Jersey corporation with its principal place of business in Glen Rock, New Jersey. Plaintiff designs, develops, and [*2] implements high speed inspection systems

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that the Inspection System would not operate as promised and requested the return of its $ 45,000 pursuant to SensoRx's "100% Money-Back Guarantee." Banner offered to return the Inspection System back to SensoRx. Banner alleges that SensoRx refused to return the deposit or provide shipping information for Banner [*4] to return the Inspection System. See Counterclaim at P 21-22. In December 2005, Plaintiff provided the necessary shipping information, and Banner returned the Inspection System around December 12, 2005. See Counterclaim at P 23. Plaintiff SensoRx filed a complaint in the Superior Court of New Jersey, Law Division, Bergen County on March 10, 2006 alleging claims of Breach of Contract, Unjust Enrichment, Quantum Meruit, Unpaid Expenses ("Account Stated/Book Account"), and Damage to Property. Defendant Banner removed the matter to this court on April 26, 2006. On May 3, 2006, Banner filed its Answer, Defenses, and Counterclaim. Banner's Counterclaims include Breach of Contract, Conversion, Fraud, Unfair and Deceptive Acts and Practices, and Breach of Implied Covenant of Good Faith and Fair Dealing. On May 23, 2006, SensoRx filed its Motion to Dismiss Counts 2-5 of Banner's Counterclaim. n1 On June 26, 2006 Banner brought this Cross-Motion to Transfer this matter from the U.S. District Court for the District of New Jersey to the U.S. District Court for the Middle District of North Carolina pursuant to 28 U.S.C. § 1404(a). Plaintiff filed a Memorandum of [*5] Law In Opposition to Defendant's Cross-Motion to Transfer ("Plaintiff's Reply") on July 17, 2006, and Defendant filed a Memorandum of Law in Reply to Opposition to Banner's Cross-Motion to Transfer on July 24, 2006.

energy, and [*6] money' and 'to protect litigants, witnesses, and the public against unnecessary inconvenience and expense.'" See Van Dusen v. Barrack, 376 U.S. 612, 616, 84 S. Ct. 805, 11 L. Ed. 2d 945 (1964). The moving party bears the burden of establishing that a court should grant a transfer and must give the court "adequate data of record" in support of its position. See Tischio v. Bontex, Inc., 16 F.Supp.2d 511, 520 (D.N.J. 1998). The movant must first show that the transferee court is one where the matter could have originally been brought. See, e.g., Shutte v. Armco Steel Corp., 431 F.2d 22, 24 (3d Cir. 1970), Sandvik, Inc. v. Continental Ins. Co., 724 F.Supp. 303, 306 n.7 (D.N.J. 1989), and CIBC World Markets, Inc. v. Deutsch Bank Securities, Inc., 309 F.Supp. 2d 637, 644 (D.N.J. 2004). Although § 1404(a) only specifically mentions the convenience of the parties, the convenience of the witnesses, and the interests of justices, the transfer analysis is not limited to these three factors. The court must more broadly consider the private interests of the litigants and the public interest in fair and efficient administration of justice when [*7] making its decision. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-509, 67 S. Ct. 839, 91 L. Ed. 1055 (1947). n2 The Third Circuit has developed representative issues to consider when analyzing the private interest and the public interest. See Jumara v. State Farm Insurance Company, 55 F.3d 873, 879 (3d Cir. 1995). The private interests include plaintiff's preferred forum, defendant's preferred forum, whether the claims arose in a forum other than the forum selected by the plaintiff, the physical and financial condition of the parties, and the relative ease of access to the sources of proof, including witnesses, books, and records. Id. The public interests recognized by the Third Circuit include the judge's familiarity with the applicable state law, the local interest in adjudicating disputes at home, court congestion in the two fora, the public policies of the forum, the burden of jury duty on the citizens of the state with a greater interest in the dispute, and the opportunity for the fact finder to view the location of the dispute. Id. The analysis, however, should not be limited to these factors, and factors may have different relevance in particular cases. See [*8] Van Cauwenberghe v. Biard, 486 U.S. 517, 528529, 108 S. Ct. 1945, 100 L. Ed. 2d 517 (1988). A court's decision to transfer should consider "all relevant factors to determine whether on balance the litigation would more conveniently proceed and the interests of justice be better served by transfer to a different forum." Jumara, 55 F.3d at 879.

n1 This Court takes no position on any of the issues raised in the Plaintiff's Motion to Dismiss Counts 2-5 of Banner's Counterclaims. Throughout this Opinion, the Court discusses the Defendant's counterclaims in the context of this CrossMotion to transfer. However, this Court's discussion of these counterclaims does not represent any opinion on whether they belong in the case.

III. ANALYSIS A. Standard of Review under 28 U.S.C. § 1404(a) 28 U.S.C. § 1404(a) provides that "for 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." The goal of § 1404(a) is to prevent the "waste of 'time,

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unwilling witnesses, (4) obstacles to a fair trial, (5) the possibility of viewing any necessary premises, and (6) all other factors relating to the expeditious and efficient adjudication of the dispute. Id. The public interest factors are: (1) the relative backlog and other administrative difficulties in the two jurisdictions, (2) the fairness of placing the burdens of jury duty on the citizens of the state with the greater interest in the dispute, (3) the local interest in adjudicating localized disputes; and (4) the appropriateness of having the jurisdiction whose law will govern adjudicate the dispute in order to avoid difficult problems in conflicts of laws. Id. Although Gulf Oil articulated these factors in the context of a motion to dismiss for forum non conveniens, courts routinely look to the Gulf Oil factors in deciding a motion to transfer venue under § 1404. See, e.g., National Property Investors VIII v. Shell Oil Company, 917 F. Supp. 324, 326 (D.N.J. 1995) [*9] B. This Matter Could Have Been Brought in the Middle District of North Carolina The initial analysis under a § 1404(a) motion requires the court to determine whether the subject matter jurisdiction, personal jurisdiction, and venue in the transferee court are valid. See CIBC, 309 F.Supp. 2d at 644 (D.N.J. 2004). First, subject matter jurisdiction is valid under 28 U.S.C. § 1332: Plaintiff is a New Jersey corporation with its principal place of business in New Jersey, Banner is a Delaware corporation with its principal place of business in North Carolina, and both the complaint and the counterclaim allege an amount in controversy exceeding the $ 75,000 requirement. Second, personal jurisdiction is also valid for both Plaintiff and Defendant. Because Banner's principal place of business is in the Middle District of North Carolina, the court would have personal jurisdiction over Banner. As well, the court would have personal jurisdiction over SensoRx because it entered into a contract that was executed in North Carolina, sent numerous communications to North Carolina, had officers and employees travel to North Carolina, attempted to [*10] implement and perform the Agreement in North Carolina, and signed documents in North Carolina acknowledging that the product would perform in a certain way. Last, venue is appropriate in the Middle District of North Carolina because Defendant's principal place of business in High Point, North Carolina is located in the district. In its opposition to Defendant's Motion to Transfer, Plaintiff concedes that venue would be proper in the Middle District of North Carolina and that the court would have subject matter

and personal jurisdiction over the parties in this matter. See Plaintiff's Reply at 16. C. The Private Interests of the Litigants Favor Transfer of this Matter to North Carolina 1. Choice of Forum The Third Circuit has recognized that a plaintiff's choice of forum is a "paramount concern" in deciding a § 1404(a) transfer request. Shutte, 431 F.2d at 25. See also, e.g., Tischio, 16 F.Supp.2d at 521 and Park Inn Int'l. v. Moody Enter., 105 F.Supp. 2d 370, 377 (D.N.J. 2000). Further, when the plaintiff has chosen its home state as the forum, that decision is "entitled to greater deference." Piper Aircraft v. Reyno, 454 U.S. 235, 255, 102 S. Ct. 252, 70 L. Ed. 2d 419 (1981). [*11] However, where the central facts of the lawsuit occur outside of the forum state, the plaintiff's selection is entitled to less deference. See, e.g., National Property Investors III, 917 F. Supp. at 327 (holding that "the Court does not accord great weight to Plaintiff's choice of New Jersey as the forum in which to bring this action, because New Jersey has a tangential relationship to the facts underlying Plaintiff's claims") citing S.C. Johnson & Son v. Gillette Co., 571 F.Supp. 1185, 1188 (N.D. Ill. 1983) (stating that "as a general rule, the preferred forum is that which is the center of gravity of the accused activity") and Ricoh Co., 817 F.Supp. at 481. Because the central facts of this lawsuit occur outside of New Jersey--and indeed in the district where the Defendant moves to transfer this case-Plaintiff's selection is entitled to less deference. Almost all, if not all, of the central facts of this lawsuit occur in North Carolina, outside of the forum state of New Jersey. In determining where the central facts of a lawsuit occurred, courts look at where the cause of action arose. See NPR, Inc. v. Am. Int'l Ins. Co., 2001 U.S. Dist. LEXIS 3463, 2001 WL 294077 [*12] (D.N.J. March 28, 2001). In a breach of contract action for the failure of goods to perform correctly, a cause of action arises where the contract was supposed to be performed. See Thorlabs, Inc. v. Townsend Comm