Defendants in patent infringement cases are increasingly citing Delaware's judicial vacancies in support of motions to transfer the cases out of the district after a visiting judge first raised the issue two months ago, a review of Delaware's federal docket has shown.

In an unusual ruling, U.S. District Judge Mark A. Kearney on Sept. 15 invoked Delaware's depleted federal bench as a factor in his decision to transfer an infringement case against Apple Inc. to California, saying the case would have put an undue burden on an already overworked court.

“This district is now reduced to two active judges, only increasing the number of cases on each judge's docket here,” Kearney, who is visiting from the Eastern District of Pennsylvania, wrote in a 14-page memorandum approving the transfer.

In the two months since the decision in MEC Resources v. Apple, four of seven transfer motions have cited Kearney's ruling and the district's two open judgeships as a reason to send infringement suits to other jurisdictions. One other defendant has cited court congestion generally, without specifically mentioning the vacancies.

That stands in contrast to the two months preceding the decision, when just one of three transfer motions filed in the district cited the heavy caseload of Delaware's federal judges. During that period, however, not a single defendant included the issue of judicial vacancies in briefing on the motions.

On motions to transfer, judges typically weigh 12 Jumara factors to determine whether the convenience of sending a case to another district outweighs the deference given to a plaintiff's chosen venue. While court congestion is included among those factors, it had not generally been considered a leading concern for the parties.

In fact, the analysis of Delaware's federal docket showed that it barely registered with defendants in the months leading up to Kearney's ruling, even as the shorthanded court dealt with a wave of patent filings after the U.S. Supreme Court's TC Heartland ruling in May tightened the rules for establishing venue in patent infringement cases.

U.S. District Chief Judge Leonard P. Stark of the District of Delaware has enlisted a roster of visiting judges to help handle the workload until two new judges can be confirmed to replace District Judges Sue L. Robinson and Gregory M. Sleet, who announced their plans to retire earlier this year, before the decision in TC Heartland was announced.

In MEC, neither party had addressed court congestion in arguing the transfer motion. Still, Kearney, who had previously denied Apple's motion to dismiss the case, said it was a factor worth noting.

“While visiting judges can assist, we also must manage our busy urban dockets and, as much as we may try, cannot fully mitigate the loss of experienced judges in this district while we await commissions for new district court judges,” he said in the ruling.

George Pazuniak, a Wilmington attorney who represented MEC in the litigation, declined to comment on the specifics of the case, but he said that the ruling could indicate that Kearney's thinking has gained traction with other judges on the court.

“Not having been raised as an issue, you can see it reflects a judge's concern,” said Pazuniak, of O'Kelly & Ernst. “Given that it is one judge's concern, it may be other judges' concern.”

Edward Reines, a partner in Weil, Gotshal & Manges' Silicon Valley office, said defendants to Delaware infringement cases may have seized on Kearney's ruling as a signal that the court would be giving more thought to its available resources going forward. However, he said, there has been no indication that the vacancies have interfered with the court's ability to handle its caseload.

“I'm sure parties moving to transfer will attempt to invoke Judge Kearney's statement regarding vacancies,” Reines said. “It gives parties seeking transfer more room to argue congestion comfortably.”

No other judge—commissioned or visiting—has yet gone on record echoing Kearney's concerns about the vacancies, though Sleet has transferred a case based, in part, of the relative speed of the district.

Stark on Monday declined to comment on Kearney's ruling or its implications.

However, attorneys have taken notice.

Daniel A. Tallitsch, a partner with Baker McKenzie, called Kearney's MEC decision “very on point and helpful” and said “it wouldn't surprise me that other defendants are citing MEC.” Tallitsch, who is representing TTE Technology Inc. in an infringement suit by Interface Linx, filed a motion Oct. 4 to transfer the suit to a federal court in California, where both firms are based.

In a brief, Tallitsch and his team quoted extensively from MEC and argued that the court should not waste valuable resources on a case with only a limited connection to Delaware.

“Judge Kearney's reasoning applies equally in this case and weighs in favor of transfer,” the attorneys wrote. “Indeed, the limited resources of this district should not be used to resolve a dispute between two companies that are both located in the Central District of California.”

Tallitsch declined to further discuss the case because the motion to transfer is still pending.

Meanwhile, the vacancies do not appear to be going away in the near future. President Donald Trump has yet to announce his picks to fill the two vacancies, and it is not clear when the U.S. Senate would even move to confirm nominees to Delaware's federal bench.

Pazuniak, the attorney for MEC, said that continued briefing around the openings and their affect on the court's docket would continue to highlight the issue as an ongoing concern for the state's bench and bar.

“Whether it is a valid concern in the interests of justice is another question,” he said.

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