The opinion of the court was delivered by: RONALD GUZMAN, District Judge
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendant International
Crystal Laboratories, Inc.'s ("ICL") Motion to Transfer Venue
Pursuant to 28 U.S.C § 1406(a) or § 1404(a) and ICL's Motion for
Costs and Fees Pursuant to 28 U.S.C. § 1927. For the reasons that
follow, ICL's motion to transfer pursuant to § 1404(a) is
granted, and the motion for costs and fees is denied.
On October 15, 2003, Plaintiff R.E. Davis Chemical Corp.
("Davis"), an Illinois resident, filed a complaint alleging ICL
infringed Davis's Patent 5,290,705 (the '705 patent) by selling
and/or offering for sale analytic specimen supports, including
certain IR sampling cards containing polytetrafluoroethylene
("PTFE") and other IR sampling cards containing
polyethylene.*fn1 On October 27, 2003, ICL filed a declaratory judgment action against Davis
in the District of New Jersey, seeking a declaration of
noninfringement of the '705 patent.
On November 3, 2003, ICL filed the present motion to transfer
this case to the District of New Jersey. On November 18, 2003,
Plaintiff filed a motion seeking to enjoin ICL from proceeding
with the New Jersey litigation, claiming that New Jersey lacks
jurisdiction over Davis.
ICL seeks to transfer this action to the District of New Jersey
pursuant to either 28 U.S.C. § 1404(a) or § 1406(a).
28 U.S.C. § 1404(a) provides: "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." 28 U.S.C. § 1406(a) provides: "The district
court of a district in which is filed a case laying venue in the
wrong division or district shall dismiss, or if it be in the
interest of justice, transfer such case to any district or
division in which it could have been brought."
Thus, under either section, a preliminary issue is whether
venue properly lies in both this district and the transferee
district. Venue in patent cases is governed by
28 U.S.C. § 1400(b), which provides: "Any civil action for patent
infringement may be brought in the judicial district where the
defendant resides, or where the defendant has committed acts of
infringement and has a regular and established place of
business." For purposes of § 1400(b), a non-resident corporate
defendant "shall be deemed to reside in any judicial district in
which it is subject to personal jurisdiction at the time the action is commenced." 28 U.S.C. § 1391(c); see VE Holding
Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574, 1583-84 (Fed.
A. Venue in the Transferee District
In this case, jurisdiction (and therefore venue) is clearly
proper in the District of New Jersey. ICL is a resident of New
Jersey, the state in which it is incorporated and has its
principal place of business. Contrary to Davis's argument, New
Jersey's alleged lack of jurisdiction over Davis is not relevant
and certainly does not render the § 1404(a) analysis "moot."
Davis is the plaintiff here, and its residence is not a factor in
the jurisdiction/venue determination.*fn2
B. Venue in the Transferor District
The Court now turns to the question of whether venue is proper
in the Northern District of Illinois.*fn3 The law of the
Federal Circuit governs the issue of personal jurisdiction over
ICL in this patent case. See Deprenyl Animal Health, Inc. v.
Univ. of Toronto Innovations Found., 297 F.3d 1343, 1348 (Fed.
Cir. 2002); Hildebrand v. Steck Mfg. Co., Inc., 279 F.3d 1351,
1354 (Fed. Cir. 2002). The Federal Circuit has explained that
before exercising personal jurisdiction over a defendant, "the court must determine whether an applicable
statute potentially confers jurisdiction by authorizing service
of process on the defendant, and whether the exercise of
jurisdiction would satisfy the requirements of due process."
Deprenyl Animal Health, 297 F.3d at 1349. The relevant statute
in this case is the Illinois long arm statute, which confers
jurisdiction over causes of action arising from several
enumerated acts as well as "on any other basis now or hereafter
permitted by the Illinois Constitution and the Constitution of
the United States." 735 ILL. COMP. STAT. 5/2-209(a), (c); see
Deprenyl, 297 F.3d at 1349 (noting that Federal Rule of Civil
Procedure 4(k)(1)(A) "allows a plaintiff to rely on the state
long arm statute . . . to obtain statutory authorization for the
exercise of personal jurisdiction").
1. Jurisdiction Under the Illinois Long Arm Statute
In this case, it is not disputed that an allegedly infringing
article was offered for sale and was sold to Plaintiff in
Illinois. ICL argues that its single sale to Illinois does not
constitute "[t]he transaction of any business" in Illinois, one
of the enumerated acts conferring jurisdiction under the Illinois
long arm statute. See 735 ILL. COMP. STAT. 5/2-209(a)(1).
However, the Federal Circuit has expressly stated that patent
infringement cases are creatures of federal law, and therefore