comScore, Inc. v. Integral Ad Science, Inc.
924 F. Supp. 2d 677
E.D. Va.2013Background
- Plaintiff comScore asserts patent infringement against Ad Science, Double Verify, and Moat relating to ad verification technologies.
- Patents-in-suit were issued 2000–2010 and later assigned to Nielsen, then ultimately to comScore after a settlement with Nielsen.
- Plaintiff is headquartered in Reston, Virginia, and develops/products related to the asserted technologies in Virginia.
- Defendants are Delaware corporations with principal offices in New York, NY; most relevant witnesses and documents are in New York.
- Cases were consolidated for pretrial proceedings in the Eastern District of Virginia; venue disputes were heard on January 24, 2013.
- Defendants moved to transfer venue under 28 U.S.C. § 1404(a); the court denied transfer after balancing factors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Might the claims have been brought in SDNY? | comScore headquartered in VA; SDNY is convenient for defendants' location. | defendants headquartered in SDNY; activity center is NY; venue should be NY. | Yes; all three actions could have been brought in SDNY. |
| Should the case be transferred despite plaintiff's forum choice? | strong ties and active development in VA; substantial connection to forum weighs against transfer. | center of gravity in NY; transfer would be more convenient for witnesses and evidence. | No; plaintiff's home-forum connections weigh strongly against transfer. |
| Is witness convenience toward transfer warranted? | many witnesses located in Virginia; non-party inventors in NY reduce need for transfer. | key non-party witnesses largely in NY; NY court better suited for testimony. | Weight favors some transfer consideration, but not enough to overcome plaintiff's forum weight. |
| Do public-interest/institutional factors justify transfer? | Virginia forum supports local resolution; faster docket in VA weighs against transfer. | some NY law familiarity and potential NY-law issues favor transfer. | Overall, interests of justice do not strongly favor transfer. |
| Do the balance of factors warrant transfer? | plaintiff's connections to VA predominate; transfer would merely shift inconvenience. | center of activity lies in NY; non-party-witness problems could be resolved by transfer. | Defendants failed to show strong weight in favor of transfer; denial appropriate. |
Key Cases Cited
- Heinz Kettler GMBH & Co. v. Razor USA LLC, 750 F. Supp. 2d 660 (E.D. Va. 2010) (home-forum weight strongly favors retention; center-of-activity not overriding)
- Pragmatus AV, LLC v. Facebook, Inc., 769 F. Supp. 2d 991 (E.D. Va. 2011) (plaintiff's forum connections weigh against transfer)
- Koh v. Microtek Intern., Inc., 250 F. Supp. 2d 627 (E.D. Va. 2003) (center-of-activity considerations do not override home-forum weight)
- Genentech, Inc. v. Amgen, Inc., 566 F.3d 1338 (Fed. Cir. 2009) (center-of-gravity and convenience principles govern venue transfers)
- Lycos, Inc. v. TiVo, Inc., 499 F. Supp. 2d 685 (E.D. Va. 2007) (forum-selection considerations in patent cases)
- Schrader-Bridgeport Int’l, Inc. v. Cont’l Auto. Sys. US, Inc., 2012 WL 503602 (W.D. Va. 2012) (unsupported witness-willingness statements insufficient for transfer)