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Hollander v. Hospira

November 22, 2010


The opinion of the court was delivered by: DuBOIS, J.



This is a qui tam action alleging violations of 35 U.S.C. § 292, the "false marking" statute that penalizes the marking of products with false or expired patents. Presently before the Court is defendant Hospira, Inc.'s ("Hospira") Motion to Transfer. In response to the motion, plaintiff, Bentley A. Hollander ("Hollander"), argues that in order to assess the materiality of certain non-party witnesses' testimony, he should be afforded venue transfer discovery with respect to those witnesses, and that issue has been briefed. For the reasons set forth below, Hollander's request for discovery is denied, Hospira's Motion to Transfer is granted, and the case is transferred to the United States District Court for the Northern District of Illinois.


Hospira is a global specialty pharmaceutical and medication delivery company that sells a broad line of hospital products, including "specialty injectable and other pharmaceuticals, medication management systems, and other devices." (Compl. ¶¶ 12-14.) Hollander filed a Complaint on January 19, 2010, alleging that Hospira violated 35 U.S.C. § 292(a) by marking some of its products with expired patents and using those expired patents in advertising, with the purpose of deceiving the public. (Id. ¶ 2.) Hollander seeks the imposition of a fine against Hospira, one half to be paid to the United States and the other half to be paid to Hollander, as qui tam relator, pursuant to 35 U.S.C. § 292(b). (Id. ¶ 3.)


The question before the Court is whether this case should be transferred to the Northern District of Illinois pursuant to 28 U.S.C. § 1404(a). 28 U.S.C. § 1404(a) permits transfer on venue grounds and states: "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."Once a court determines that venue is proper in another district, the court must 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 v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995). The party moving to transfer venue bears the burden of establishing the need for the transfer. Id.; Miller v. Consol. Rail Corp., 196 F.R.D. 22, 24 (E.D. Pa. 2000).


The Court must decide two questions in connection with Hospira's Motion to Transfer: (1) whether to permit Hollander to conduct the venue transfer discovery he requests; and (2) whether the case should be transferred pursuant to 28 U.S.C. § 1404(a). The Court concludes that the discovery Hollander seeks is unwarranted and that justice is best served by transferring the case to the Northern District of Illinois.

A. Venue Transfer Discovery

Hollander requests witness discovery and discovery regarding a Hospira distribution facility in King of Prussia, Pennsylvania. In particular, Hollander requests discovery of: (1) "[w]hat knowledge, input and/or decision-making authority" any of the seven third-party witnesses identified in Hospira's Motion to Transfer had with respect to the marking of expired patents on Hospira's products; (2) the extent to which any current Hospira employees likewise possess knowledge or involvement with marking patents on Hospira's products, such that the seven non-parties' testimony would be cumulative; (3) whether the seven third-party witnesses actually would be available for trial in the Eastern District of Pennsylvania; and (4) the extent to which Hospira "uses (or used) its King of Prussia distribution facility to place falsely-marked products into the stream of commerce in the United States." (Pl./Relator Bentley A. Hollander's Mem. Regarding Disc. Related to Hospira, Inc.'s Mot. to Transfer Venue [hereinafter "Pl.'s Venue Disc. Mem."].)

1. Witness Discovery

A defendant may satisfy its evidentiary burden on a motion to transfer by submitting "affidavits, depositions, stipulations, or other documents containing facts that would tend to establish the necessary elements for a transfer under 28 U.S.C. § 1404(a)." Plum Tree, Inc. v. Stockment, 488 F.2d 754, 756-57 (3d Cir. 1973). Some examples of such documents are "a list of the names and addresses of witnesses whom the moving party plans to call and affidavits showing the materiality of the matter to which these witnesses will testify." Id. at 757 n.2. In providing such information, a defendant need do no more than "clearly specify the key witnesses to be called and... make a general statement of what their testimony will cover." Austin v. Johns-Manville Corp., 524 F. Supp. 1166, 1169 (E.D. Pa. 1981).

Hospira has met its evidentiary burden. Through the submission of three separate declarations by individuals with personal knowledge, Hospira has clearly identified seven non-party witnesses that it plans to call at trial, has specified their places of residence (in Illinois and Wisconsin), and has provided general statements as to the materiality and content of their testimony. (Bregenzer Decl.; Maschek Decl.; Gasparac Decl.) To require Hospira to provide Hollander with the ...

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