The opinion of the court was delivered by: Hon. Faith S. Hochberg, U.S.D.J.
HOCHBERG, District Judge:
This matter comes before the Court upon the Defendant's motion to dismiss Plaintiffs' Complaint pursuant to Fed. R. Civ. P. 12(b)(6) and, in the alternative, to transfer venue pursuant to 28 U.S.C. §1404(a). The Court has reviewed the submissions of the parties and considered the motion on the papers in accordance with Fed. R. Civ. P. 78.
On May 18, 2011, Plaintiffs Intendis, Inc. ("Intendis") and Dow Pharmaceutical Sciences, Inc. ("Dow") filed this action (the "New Jersey Action") against Defendant River's Edge Pharmaceuticals, LLC ("River's Edge"). Plaintiffs allege that Defendant infringed U.S. Patent No. 6,387,383 ("the '383 Patent") by filing Abbreviated New Drug Application ("ANDA") No. 202470 with the FDA, seeking to market a generic version of Plaintiff Intendis's Desonate® product, pursuant to 35 U.S.C. § 271(e)(2). On May 19, 2011, Plaintiffs filed an identical complaint against Defendant in the United States District Court for the Northern District of Georgia (the "Georgia Action"). Defendant has filed Motions to Dismiss in both New Jersey and Georgia and a Motion to Transfer the New Jersey Action to the Northern District of Georgia.
Dow, the owner of the '383 Patent, is a Delaware corporation with its
principle place of business in California. Compl. ¶ 3. Intendis, the
exclusive licensee of the '383 Patent and maker of Desonate®, is a
Delaware corporation with its principal place of business in New
Jersey. Compl. ¶ 2.*fn1 River's Edge is a Georgia LLC
with its principal place of business in Suwannee, Georgia.*fn2
Def. Br. at 3.
The '383 Patent is listed in the FDA Orange Book as covering Desonate®, which is the subject of New Drug Application ("NDA") No. 21844, of which Intendis is the holder. Compl. ¶ 10. River's Edge's ANDA seeks approval to manufacture and sell a generic Desonide Gel, 0.05% formulation based on the Reference Listed Drug Desonate®. Id. ¶ 11. River's Edge filed the ANDA with a "Paragraph IV" certification under 21 U.S.C. § 355(j)(2)(A)(vii)(IV) alleging that the ANDA does not infringe the '383 Patent. Id. ¶ 12.
28 U.S.C. §1404(a) permits a District Court to transfer a civil case to another district where venue is proper:
For the convenience of parties and 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.
The purpose of Section 1404(a) is to "prevent the waste of time, energy and money and to protect litigants, witnesses and the public against unnecessary inconvenience and expense." Van Dusen v. Barrack 376 U.S. 612, 616 (1964) (internal quotations and citations omitted). A decision to transfer an action under this provision rests with the sound discretion of the District Court. Stewart Org., Inc. v. Ricoh Corp. 487 U.S. 22, 29 (1988). As a preliminary matter, the District Court must determine that the venue to which transfer is proposed is one in which the action "might have been brought." 28 U.S.C. §1404(a).
On a motion to transfer pursuant to §1404(a), the District Court must undertake a "flexible and individualized analysis," balancing the factors set forth in the statute as well as a number of other case specific factors. Stewart Org., Inc., 487 U.S. at 29. The statute provides three factors for consideration: (1) the convenience of the parties, (2) ...