United States District Court, N.D. Illinois, Eastern Division
AL and PO CORPORATION, individually and on behalf of all others similarly situated, Plaintiff,
AMERICAN HEALTHCARE CAPITAL, INC., a California corporation, and JACK ESKENAZI, an individual, Defendants.
MEMORANDUM OPINION AND ORDER
REBECCA R. PALLMEYER, District Judge.
Plaintiff AL & PO Corporation brings this putative class-action against Defendants American Healthcare Capital ("AHC") and Jack J. Eskenazi, AHC's senior vice president, for allegedly violating the Telephone Consumer Protection Act by sending unsolicited fax advertisements without the proper opt-out notices. Defendants move to transfer  this action to the Central District of California pursuant to 28 U.S.C. §1404(a). For the reasons explained here, the motion is denied.
Plaintiff is an Illinois corporation with its principal place of business in Cook County, Illinois. (First Am. Class Action Compl. , hereinafter "FAC, " ¶ 7.) AHC is a California Corporation that offers "mergers and acquisitions advisory products, " with its principal place of business in Los Angeles County, California. (FAC ¶¶ 1, 8.) Eskenazi, the founder and senior vice president of AHC, is domiciled in Los Angeles County, California. (FAC ¶¶ 9-10.)
Plaintiff received two unsolicited faxes, one on September 13, 2013 and a second on December 9, 2013, each advertising a free valuation to be performed by AHC. (FAC ¶¶ 11-12, 15.) Fax advertising shifts the cost of marketing promotion to the recipient of the fax, in this case Plaintiff. (FAC ¶ 1.) Plaintiff alleges that because the faxes were unsolicited and Plaintiff never consented to receive them, the faxes violated the Telephone Consumer Protection Act ("TCPA"). (FAC ¶¶ 2, 40) (citing 47 U.S.C. § 227.) The opt-out notices on these faxes, Plaintiff continues, do not satisfy TCPA requirements. (FAC ¶¶ 13-14, 44.) AL & PO alleges that Eskenazi personally organized and approved AHC's campaign of unsolicited faxes. (FAC ¶ 22.) According to Eskenazi, it is AHC's general manager, Jan Bustamante, who "implement[s] AHC's fax programs, and... manage[s] the vendors AHC uses to send faxes." (Decl. of Jack Eskenazi in Supp. of Defs.' Mot. to Transfer Venue, Ex. 1 to Defs.' Mem. of Law in Supp. of Defs.' Mot. to Transfer [34-1], hereinafter "Eskenazi Decl., " ¶ 8.)
Plaintiff brings this class action proposing to represent two nationwide classes. The first, named the "Unsolicited Fax Class, " is defined as "[a]ll individuals or entities in the United States who received one or more unsolicited facsimile advertisements from or on behalf of Defendant American Healthcare Capital." (FAC ¶ 29.) The second proposed class, the "Opt-out Notice Class, " overlaps with the first class: It includes "[a]ll individuals or entities in the United States who received one or more facsimile advertisements from or on behalf of Defendant American Healthcare Capital, " including solicited and unsolicited faxes, "with opt-out notices that do not comply with 47 U.S.C. § 227(b)(2)(D)." (FAC ¶ 30.)
Defendants contend that the Central District of California is a more convenient forum for the resolution of this case because all of Defendants' documents and witnesses are located in Los Angeles. (Defs.' Mem. of Law in Supp. of Mot. to Transfer , hereinafter "Defs.' Mem., " 4-8.) They move to transfer this case to the United States District Court for the Central District of California pursuant to 28 U.S.C. § 1404(a). (Defs.' Mot. to Transfer Venue .)
"Recognizing that what is convenient for one litigant may not be convenient for the other, the Supreme Court has taught that section 1404(a) is intended to place discretion in the district court to adjudicate motions for transfer according to a case-by-case consideration of convenience and fairness." Research Automation, Inc. v. Schrader-Bridgeport Int'l, Inc., 626 F.3d 973, 977 (7th Cir. 2010) (quoting Stewart Organization, Inc. v. Richo Corp., 487 U.S. 22, 29 (1988)) (internal quotations and alterations omitted). The moving party bears the burden of demonstrating that a transfer is warranted. Heller Fin., Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1293 (7th Cir. 1989). A transfer under § 1404(a) is appropriate if: (1) venue is proper in both the transferor and transferee court; (2) transfer serves the convenience of the parties and witnesses; and (3) transfer is in the interest of justice. Vandeveld v. Christoph, 877 F.Supp. 1160, 1167 (N.D. Ill. 1995). The parties agree that venue is proper in both the transferee and the transferor court. (Defs.' Mem. at 2; Pl.'s Opp. to Defs.' Mot. to Transfer Venue , hereinafter "Pl.'s Mem., " 2, n.1.). The court therefore weighs only the remaining two factors: convenience and the interests of justice. The court concludes that transfer to the Central District of California would merely shift inconvenience from Defendants to Plaintiff, and the interests of justice do not persuade the court that transfer is appropriate.
When evaluating the relative convenience of the transferee and the transferor courts, the court weighs (1) the plaintiff's choice of forum; (2) the situs of material events; (3) the relative ease of access to sources of proof; (4) the convenience of the parties; and (5) the convenience of witnesses. Research Automation, Inc. v. Schrader-Bridgeport Int'l, Inc., 626 F.3d 973, 978 (7th Cir. 2010). Where the balance of convenience is a close call, merely shifting inconvenience from one party to another is not a sufficient basis for transfer. Id. "[U]nless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed" on the basis of convenience. In re Nat'l Presto Indus., Inc., 347 F.3d 662, 664 (7th Cir. 2003); Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219-20 (7th Cir. 1986) ("The movant bears "the burden of establishing, by reference to particular circumstances, that the transferee forum is clearly more convenient."). The court addresses these elements individually below.
A. Plaintiff's Choice of Forum
A plaintiff's chosen forum is entitled to substantial deference, particularly where, as Iin this case, the chosen forum is the plaintiff's home forum. Law Bulletin Pub., Co. v. LRP Publications, Inc., 992 F.Supp. 1014, 1017 (N.D. Ill. 1998). See also Atl. Marine Const. Co. v. U.S. Dist. Court for W. Dist. of Texas, 134 S.Ct. 568, 581 (2013) ("Because plaintiffs are ordinarily allowed to select whatever forum they consider most advantageous (consistent with jurisdictional and venue limitations), we have termed their selection the plaintiff's venue privilege.'") Several courts in this district have discounted this deference in putative nationwide class actions, reasoning that any member of the class who subsequently chooses to appear might be inconvenienced. See Humphrey v. United Healthcare Servs., Inc., No. 14-cv-1157, 2014 WL 3511498, *3 (N.D. Ill. July 16, 2014) (Ellis, J.); Lafleur v. Dollar Tree Stores, Inc., No. 1:11-cv-8473, 2012 WL 2280090, *3 (N.D. Ill. June 18, 2012) (Aspen, J.); Nero v. Am. Family Mut. Ins. Co., No. 11-cv-1072, 2011 WL 2938138, *2 (N.D. Ill. July 19, 2011) (Feinerman, J.); Ashland Jewelers, Inc. v. NTR Metals, LLC, No. 10-cv-4690, 2011 WL 1303214, *7 (N.D. Ill. Mar. 31, 2011) (Hart, J.); Simonoff v. Kaplan, Inc., No. 09-cv-5017, 2010 WL 1195855, *1 (N.D. Ill. Mar. 17, 2010) (Hibbler, J.); Jaramillo v. DineEquity, Inc., 664 F.Supp.2d 908, 914 (N.D. Ill. 2009) (Denlow, M.J.); Gueorguiev v. Max Rave, LLC, 526 F.Supp.2d 853, 857 (N.D. Ill. 2007) (Bucklo, J.); Morris v. Am. Bioscience, Inc., No. 03-cv-7525, 2004 WL 2496496, *2 (N.D. Ill. Nov. 3, 2004) (Guzman, J.). See also In re Warrick, 70 F.3d 736, 741 n.7 (2nd Cir. 1995) ("It is true... that the plaintiff's choice of forum is a less significant consideration in a (here, putative) class action than in an individual action.").
Plaintiff seeks class certification of two nationwide classes (Pl.'s First Am. Mot. for Class Certification ), and Defendants urge this court to similarly discount Plaintiff's choice. The court is hesitant to adopt this approach. First, the Seventh Circuit has not endorsed this reasoning. Second, though Plaintiff has proposed nationwide classes, the class certification motion has not been briefed, and the court does not assume such a broad class will in fact ultimately be certified. In any event, unnamed class members presumably benefit from a class representative who is able to aggressively litigate their claims without significant inconvenience due to travel. Though the court acknowledges that potential class ...