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Gueorguiev v. Max Rave

November 30, 2007

HRISTO GUEORGUIEV, PLAINTIFF,
v.
MAX RAVE, LLC, AND DOES 1-10, DEFENDANTS.



The opinion of the court was delivered by: United States District Judge Elaine E. Bucklo

MEMORANDUM OPINION AND ORDER

Defendant Max Rave, LLC ("Max Rave") has filed a motion under 28 U.S.C. § 1404(a) to transfer the above captioned case to the United States District Court for the Northern District of California. For the following reasons, I deny defendant's motion.

I.

Plaintiff Hristo Gueorguiev's complaint alleges Max Rave violated Fair and Accurate Credit Transactions Act ("FACTA") amendment, 18 U.S.C. § 1681c(g), to the Fair Credit Reporting Act, 15 U.S.C. §§ 1681 et seq. ("FCRA") when it printed a cash register receipt which displayed plaintiff's card expiration date. (Compl. at ¶¶ 1, 17.) The complaint alleges plaintiff is a resident of this district, and that defendant is a Delaware corporation with its principal place of business in New Jersey. (Id. at ¶¶ 13-14.) Max Rave operates stores in Illinois. (Id. at ¶¶ 14, 19.) Plaintiff purports to bring claims on behalf of a class of "all persons to whom Max Rave, LLC provided an electronically printed receipt at the point of sale or transaction, in a transaction occurring in Illinois after December 4, 2006, which receipt displays either (a) more than the last five digits of the person's credit card or debit card number, and/or (b) the expiration date of the person's credit or debit card." (Id. at ¶ 19.)

Plaintiff's is not the only FACTA putative class action lawsuit presently being litigated by defendant. On February 5, 2007, a putative nationwide class action complaint, alleging FACTA violations, was filed in the United States District Court for the Northern District of California. See Hile v. Max Rave, LLC, Case No. 07-CV-00738 (JSW) (N.D. Cal. Feb. 5, 2007). Hile seeks to represent a putative class consisting of All persons in the United States to whom . . . an electronically printed receipt at the point of a sale or transaction on which Defendants printed more than the last five digits of the person's credit card or debit card number and/or printed the expiration date of the person's credit or debit card. (Def. Br. Ex. C, at Ex. 1 ¶ 13.) Defendant asks that this case be transferred to the court where Hile is pending.

II.

This court may transfer venue to another district for reasons of convenience when it is "in the interest of justice." 28 U.S.C. § 1404(a). The moving party must show that (1) venue is proper in this district; (2) venue is proper in the transferee district; (3) the transferee district is more convenient for both the parties and witnesses; and (4) transfer would serve the interest of justice. Bryant v. ITT Corp., 48 F. Supp. 2d 829, 832 (N.D. Ill. 1999). In ruling on a motion to transfer, I must consider these statutory factors "in light of all the circumstances of the case." See Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219 (7th Cir. 1986) (citations omitted). Section 1404(a) does not indicate the relative weight to afford to each of these factors; this is left to the discretion of the district court. See id. at 219, n.3. The weighing of the relevant factors "involves a large degree of subtlety and latitude, and, therefore, is committed to the sound discretion of the trial judge." Id. at 219; see also N. Shore Gas Co. v. Salomon Inc., 152 F.3d 642, 648, n.3 (7th Cir. 1998) (citation omitted); Van Dusen v. Barrack, 376 U.S. 612, 622 (1964) (noting that the remedial purpose of § 1404(a) requires "individualized, case-by-case consideration of convenience and fairness"). The movant bears the burden of establishing that the transferee forum is more convenient. Coffey, 796 F.2d at 219.

In this case, the plaintiff argues that venue is not proper in the Northern District of California on the grounds that defendant does not reside there or have any contacts other than the present lawsuits. However, defendant operates multiple stores within that district and has consented to personal jurisdiction there. Under 28 U.S.C. § 1391(b), "[a] civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State."

Under § 1391(c), "a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced." Here, defendant submits it is subject to personal jurisdiction in the Northern District of California and has consented to jurisdiction in the Hile case. Therefore under § 1391(c) defendant "resides" there for purposes of § 1391(b)(1). Accordingly, for purposes of this motion I find venue is proper in the Northern District of California and must address the issues of convenience and the interests of justice.

III.

In determining whether a forum is more convenient and whether a transfer would be in the interest of justice, the court must consider the private interests of the parties as well as the public interest of the court. N. Shore Gas Co. v. Salomon, Inc., 896 F. Supp. 786, 791 (N.D. Ill. 1995). The factors relevant to the parties' private interests include (1) the plaintiff's choice of forum; (2) the situs of material events; (3) the convenience of the parties; and (4) the convenience of the witnesses. Coll. Craft Cos., Ltd. v. Perry, 889 F. Supp. 1052, 1054 (N.D. Ill. 1995). The factors relevant to the public interest of the court include the court's familiarity with the applicable law and concerns relating to the efficient administration of justice. Id. at 1056. The burden is on the moving party to demonstrate that the balance of the factors weighs heavily in favor of transfer and that transfer would not merely shift inconvenience from one party to another. Fink v. Declassis, 738 F. Supp. 1195, 1198 (N.D. Ill. 1990).

A. Plaintiff's Choice of Forum and Situs of Material Events

A plaintiff's choice of forum is generally given substantial weight, particularly when it is the plaintiff's home forum. Vandeveld v. Christoph, 877 F. Supp. 1160, 1167 (N.D. Ill. 1995). Unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed. In re Nat'l Presto Indus., Inc., 347 F.3d 662, 664 (7th Cir. 2003) (citations omitted). A plaintiff's choice of forum may be afforded less deference, however, when another forum has a stronger relationship to the dispute, when the forum of plaintiff's choice has no significant connection to the situs of material events, or in the context of nationwide class actions. See Chicago, Rock Island & Pac. R.R. Co. v. Igoe, 220 F.2d 299, 304 (7th Cir. 1955); Nelson v. Aim Advisors, Inc., No. 01-CV-0282-MJR, 2002 WL 442189, at *3 (S.D. Ill. Mar. 8, 2002); Boyd v. Snyder, 44 F. Supp. 2d 966, 969-70 (N.D. Ill. 1999); Georgouses v. NaTech Resources, Inc., 963 F. Supp. 728, 730 (N.D. Ill. 1997).

Plaintiff's choice of forum was the Northern District of Illinois. The receipts at issue in this case were distributed in defendant's Illinois stores and this district has a relationship to the dispute. The plaintiff seeks to represent a class which, as pled, does not restrict class members to Illinois residents but is likely to consist primarily of ...


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