Judge Pannell Declines to Reconsider Order Denying "Re-transfer" of Patent Infringement Action
These are the directives of a recent order from Judge Pannell denying reconsideration of an order in which the Court declined to "re-transfer" a patent infringement case to the Central District of California. As reported in our March 5, 2013 post, patentee plaintiff International Growers Supply, Inc. ("IGS") had filed a motion to re-open its infringement action, which had been transferred from the Central District of California to the Northern District of Georgia based on the "first-t0-file" rule, following the issuance of an Ex Parte Reexamination Certificate for one of its asserted patents. The motion to re-open included a "request" that the Court "re-transfer" the infringement action back to California because the Court had dismissed the "first-filed" declaratory judgment action for lack of personal jurisdiction. Judge Pannell denied the informal request because it was not presented as a separate motion and did not address the factors relevant to a transfer determination under § 1404(a).
At the time, we opined that IGS would be expected to file a proper motion to transfer the case to the Central District of California, giving due treatment to each of the relevant factors. Instead, IGS opted to move the Court to reconsider its denial to "re-transfer" the case. In denying the motion to reconsider the order, Judge Pannell stated: "Although the original reason for the case's transfer to this district has been undercut by the dismissal of the first-filed declaratory judgment action, the case is now before this court. The court will not exercise its discretion to transfer under § 1404(a) unless the plaintiff makes the proper showing." That proper showing would include evidence that the California court would have personal jurisdiction over all non-consenting defendants, and that the balance of convenience factors favor a transfer. Once again, IGS may be expected to file a motion to transfer, especially now that the Court has invited such a motion.
International Growers Supply, Inc. v. Atlantis Hydroponics, Inc., et al., 1:12-cv-2728-CAP, Dkt. No. 64 (N.D. Ga. Mar. 12, 2013) (Pannell, J.).