Attorney Declaration in Support of a Motion to Transfer Venue under 28 U.S.C. § 1404(a) (Patent Litigation)

Summary

This is a template for an attorney declaration introducing exhibits in support of a motion to transfer venue under 28 U.S.C. § 1404(a) based on the convenience of the parties and witnesses and in the interests of justice. This template includes practical guidance and drafting notes. Attorney declarations are commonly used to submit documentary evidence as exhibits to support motions or to make certain facts of record. In federal court, declarations are a convenient alternative to affidavits because, unlike affidavits, declarations do not have to be sworn before a notary. Instead, pursuant to 28 U.S.C. § 1746, the declarant states, under penalty of perjury, that the contents of the declaration are true and correct. If you rely on evidence such as the asserted patent, the prior art, the plaintiff's responses to discovery on venue issues, or a certificate of incorporation or registration to do business, you may introduce these items as exhibits to an attorney declaration. In deciding a motion to transfer venue under Section 1404(a), courts also look to private and public interests, such as the relative ease of access to sources of proof and local interest in having localized disputes decided at home. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947) (identifying the so-called Gilbert transfer factors). Courts also consider other factors that vary between the regional circuits. Because of the relatively high volume of patent cases filed in the Eastern District of Texas and the Western District of Texas and the correspondingly high number of venue transfer motions filed in those districts, this template refers to some of the public and private interest factors identified by the Fifth Circuit in In re Volkswagen of Am., Inc., 545 F.3d 304, 315 (5th Cir. 2008) (en banc). In Volkswagen, the Fifth Circuit identified the following private and public interest factors to be considered in evaluating a venue transfer motion: • The private interest factors are as follows: o The relative ease of access to sources of proof o The availability of compulsory process to secure the attendance of witnesses o The cost of attendance for willing witnesses o All other practical problems that make the trial of a case easy, expeditious, and inexpensive • The public interest factors are as follows: o The administrative difficulties flowing from court congestion o The local interest in having localized interests decided at home o The familiarity of the forum with the law that will govern the case o The avoidance of unnecessary problems of conflict of laws or in the application of foreign law For the venue transfer factors that apply in other circuits, see Venue Transfer Factors in Patent Litigation Chart (Regional Circuit). For a case in the Western District of Texas, Waco division, before Judge Alan Albright, see Patent Litigation Rules and Practice before Judge Alan Albright W.D. Tex. — Motions to Transfer or Dismiss for Improper Venue, reviewing how Judge Albright handles venue transfer motions. For a general discussion of how and when to move to transfer venue in federal court, see Motion to Transfer Venue: Making the Motion (Federal).