in Re Xoft, Inc v. U.S. Dist. Court for the Southern Dist. of Iowa, 490 U.S. 296, 309, 109 S.Ct. 1814,…

# NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit

IN RE XOFT, INC.,
Petitioner.

Miscellaneous Docket No. 983

On Petition for Writ of Mandamus to the United
States District Court for the District of Delaware in case
no. 10-CV-308, Judge Leonard P. Stark.

ON PETITION

Before BRYSON, LINN, and PROST, Circuit Judges.

PROST, Circuit Judge.

ORDER

Xoft, Inc. seeks a writ of mandamus directing the
United States District Court for the District of Delaware
to vacate its order denying Xoft's motion to transfer
venue, and to direct the Delaware district court to trans-
fer the case to the United States District Court for the
Northern District of California. Carl Zeiss Surgical

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GmBH and Carl Zeiss Meditec, Inc. (Zeiss) oppose. Xoft
replies.

In denying Xoft's motion to transfer, the district court
found that the plaintiffs' choice of forum favored denying
the transfer motion and that additional private interest
factors either weighed neutral or only slightly favored
transfer. Namely, it identified Xoft's incorporation in
Delaware, domestic and international business presence,
and the failure to identify unavailable witnesses or proofs
of evidence for a trial in Delaware. The district court
further found that the public interest factors do not
strongly favor transfer. It determined that many factors
are neutral, and that others such as the convenience and
expense of trial in Delaware, if anything only slightly
favored transfer.

The remedy of mandamus is available only in ex-
traordinary situations to correct a clear abuse of discre-
tion or usurpation of judicial power. In re Calmar, Inc.,
854 F.2d 461, 464 (Fed.Cir.1988). A party seeking a writ
bears the burden of proving that it has no other means of
attaining the relief desired, Mallard v. U.S. Dist. Court
for the Southern Dist. of Iowa, 490 U.S. 296, 309, 109
S.Ct. 1814, 104 L.Ed.2d 318 (1989), and that the right to
issuance of the writ is "clear and indisputable," Allied
Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980). A
court may deny mandamus relief "even though on normal
appeal, a court might find reversible error." In re Cordis
Corp., 769 F.2d 733, 737 (Fed.Cir.1985).

Section 1404(a) provides that a district court may
transfer a case to another district or division where it
might have been brought for the convenience of the par-
ties and witnesses. In reviewing a district court's ruling
on a motion to transfer pursuant to § 1404(a), we apply

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the law of the regional circuit, in this case the Third
Circuit. See Storage Tech. Corp. v. Cisco Sys., Inc., 329
F.3d 823, 836 (Fed. Cir. 2003). Under Third Circuit
precedent, this court reviews denials of motions to trans-
fer for abuse of discretion. Jumara v. State Farm Ins., 55
F.3d 873, 878 (3d Cir. 1995). The Third Circuit has held
that "unless the balance of convenience of the parties is
strongly in favor of defendant, the plaintiff's choice of
forum should prevail." Shutte v. Armco Steel Corp., 431
F.2d 22, 25 (3d Cir. 1970).

Xoft argues that the district court placed too much
emphasis on the plaintiff's choice of forum. In the Third
Circuit, that choice is afforded considerable weight and
should not be lightly disturbed. The district court prop-
erly considered the relevant factors for a transfer motion
and determined that the factors did not strongly favor
transfer. The petitioners have failed to satisfy the de-
manding standard required to justify the issuance of a
writ of mandamus.

Accordingly,

IT IS ORDERED THAT:

The petition for a writ of mandamus is denied.

FOR THE COURT /s/ Jan Horbaly

AUG 1 7 2011

Date

Jan Horbaly Clerk

cc: James W. Geriak, Esq.
Kurt L. Glitzenstein, Esq.
Clerk, United States District Court for the District of
Delaware

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT

AUG 1 7 2011

JAN HORBALY
CLERK

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