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Federal Trade Commission v. Big Dog Solutions LLC

United States District Court, N.D. Illinois, Eastern Division

September 27, 2016

BIG DOG SOLUTIONS LLC, also d/b/a Help Desk National and Help Desk Global, a Florida limited liability company, et al., Defendants.


          John Robert Blakey United States District Judge

         Defendants Big Dog Solutions LLC, Inbound Call Specialists LLC, PC Help Desk U.S. LLC, Christopher Costanza and Suzanne Harris (collectively, the “Florida Defendants”) have moved to transfer this case to the United States District Court for the Southern District of Florida. [55] at 1-5. Defendants BlackOptek CE Inc., 9138242 Canada Corporation, Digital Growth Properties, LLC, Muzzafar Abbas, Gary Olberman, Donald Dolphin and Justin Powers (collectively, the “Agreed Defendants”) have moved to join the Florida Defendants' motion to transfer. [58] at 1. The Federal Trade Commission (“FTC”) and the Office of the Attorney General, State of Florida (“Florida Attorney General”) (collectively, “Plaintiffs”) oppose the Florida Defendants' motion to transfer [66], but Receiver Jeffrey Schneider does not. [65] at 1. As explained below, the Florida Defendants' motion to transfer is denied, and the Agreed Defendants' motion to join is denied as moot.

         I. Background

         Plaintiffs allege that Defendants, doing business as Help Desk National, misled customers throughout the United States into paying hundreds of dollars for worthless computer “repairs” and software. [17] at 1-5. Plaintiffs claim that this scheme precipitated violations of the Federal Trade Commission Act, 15 U.S.C. § 45(a) (“FTC Act”), the Telemarking Sales Rule, 16 C.F.R. § 310.3(a)(4) (“TSR”), and the Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.204 (“FDUTPA”). Id. at 15-20.

         The Florida Defendants are individual defendants from Florida and corporate entities in Florida they either owned or operated. Id. at 1-15. The call center used during Defendants' scheme is also located in Florida. Id. The Agreed Defendants are individual defendants from Iowa, Toronto, and Montreal, along with the businesses they owned or operated in Iowa, Montreal, and Nevada. Id.

         The FTC investigated this case out of its office in this district and it has secured the cooperation of numerous witnesses to appear before this Court. [66] at 3. Plaintiffs have also adduced evidence suggesting that over 1, 000 customers in this district were harmed by Defendants' scheme. [27] at 11.

         II. Analysis

         The Florida Defendants' motion is brought pursuant to 28 U.S.C. § 1404(a), which provides that “for the convenience of parties and witnesses, 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 decision to transfer venue under Section 1404(a) requires a weighing of multiple factors. This weighing “necessarily involves a large degree of subtlety and latitude, ” and, therefore, is committed to the sound discretion of the Court. Nagle v. The Hartford Life & Accident Ins. Co., No. 15-cv-6072, 2015 WL 9268420, at *2 (N.D. Ill.Dec. 21, 2014) (quoting Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219 (7th Cir. 1986)). As the moving party, the Florida Defendants bear the burden of demonstrating that the Southern District of Florida is “clearly more convenient.” Id. (internal citation omitted).

         Several factors must be met for an action to be transferred to another venue: (1) venue must be proper in this district; (2) venue and jurisdiction must be proper in the transferee district; (3) the transferee district must be more convenient for both the parties and witnesses; and (4) transfer must serve the interest of justice. See Delta Air Lines, Inc. v. Perfekt Mktg., Inc., 861 F.Supp.2d 919, 920 (N.D. Ill. 2012). The parties concede that the first and second factors are met, so this Court considers only the convenience of the parties and witnesses and the interest of justice.

         A. Convenience of the Parties and Witnesses

         To evaluate the relative convenience of the venues, this Court must consider four factors: (1) Plaintiffs' choice of forum; (2) the situs of the material events; (3) the relative ease of access to sources of proof; and (4) the convenience of the parties and witnesses. See Amoco Oil Co. v. Mobil Oil Corp., 90 F.Supp.2d 958, 960 (N.D. Ill. 2000).

         1. Plaintiffs' Choice of Forum

         Plaintiffs' choice of forum is “entitled to substantial weight” when considering a motion to transfer. Id. The Seventh Circuit has repeatedly explained that unless “the balance is strongly in favor the defendant, the plaintiff's choice of forum should rarely be disturbed.” In re Nat'l Presto Indus., 347 F.3d 662, 664 (7th Cir. 2003). This principle is particularly forceful where, as here, the Plaintiffs' chosen forum was selected pursuant to a special venue statute which “represents an affirmative congressional policy choice to allow . . . the widest possible choice of forums in which to sue.” SEC v. Electronics Warehouse, Inc., 689 F.Supp. 53, 75 (D. Conn. 1988).

         Defendants argue that this factor should not be given much weight, as “most of the improper business activity . . . allegedly occurred in South Florida.” [55] at 6. Defendants' argument is misplaced. The putative scheme at issue was executed all across the United States and parts of Canada. [17] at 1-5. The record also reflects that over 1, ...

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