Kraft Foods Group Brands LLC v. TC Heartland, LLC d/b/a Heartland Food Products Group and Heartland Packaging Corporation, C.A. No. 14-28-LPS, August 13, 2015.

Burke, M.J.  Report and Recommendation denying defendants’ motion to dismiss for lack of personal jurisdiction and transfer.  Oral argument took place on December 22, 2014.

Plaintiff asserts jurisdiction under the stream-of-commerce theory.  Defendants shipped approximately 2% of the accused products from their Indiana manufacturing facility to two customer distribution facilities in Delaware.  Defendants do not dispute that the claims against them arise out of or relate to these shipments.  They maintain that the shipments were initiated by the customer and therefore their actions do not amount to purposeful conduct directed to Delaware.  A prima facie case of specific jurisdiction is made since defendants knowingly and intentionally shipped a significant number of accused products to Delaware.  Defendants contend that they are not liable for any infringement of the 98% of accused products which were not sent to Delaware.  The argument is based on the notion that each act of infringement is a separate cause of action.  The court rejected this argument. With respect to venue, the court also found that 28 U.S.C. § 1391(c) supplements § 1400. Defendants’ forum arguments did not address most of the §1404(a) transfer factors, relying on the fact that its principal place of business where the claims arose are in Indiana, Indiana is closer to Plaintiff’s principal place of business than is Delaware, and there are potential third party witnesses in Indiana who may be called at trial.  Balancing the Jumara factors the court finds the result is not strongly in favor of transfer. Plaintiff’s choice of forum, the administrative difficulty factor and the public policy factor all weigh against transfer.