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Judge v. Unigroup, Inc.

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

January 24, 2017

JACK JUDGE, DOMINIC OLIVIERA, JOHN COFFMAN, and DAVID LESPERANCE, individually and on behalf of those similarly situated, Plaintiffs,
v.
UNIGROUP, INC., MAYFLOWER TRANSIT, LLC, and UNITED VAN LINES, LLC, Defendants.

          MEMORANDUM OPINION AND ORDER

          SHARON JOHNSON COLEMAN United States District Judge

         Plaintiffs, Jack Judge, Dominic Oliviera, John Coffman, and David Lesperance, filed the amended complaint on behalf of themselves and others similarly situated, alleging defendants violated the Fair Labor Standards Act by causing plaintiffs to work for less than minimum wage. Defendants, UniGroup, Inc., Mayflower Transit, LLC, and United Van Lines, LLC, move to dismiss the complaint or, alternatively to transfer venue to the Middle District of Florida [21]. For the reasons set forth herein, this Court grants the motion to transfer.

         Background

         Plaintiffs Jack Judge, Dominic Oliviera, John Coffman, and David Lesperance were van operators for defendant UniGroup, Inc. and its subsidiaries Mayflower Transit, LLC, and United Van Lines, LLC, through various local moving company agents. UniGroup has more than 600 agents all across the country. UniGroup and its named subsidiaries are Missouri corporations.

         Jack Judge is a resident of Florida, who worked as a van operator from February 2015 until March 2016. Dominic Oliveira is working on the road and does not have an established domicile, though the complaint avers that he “intends to permanently reside in Illinois in the near future.” (Dkt. 19 at ¶¶16-17). Oliveira was a van operator from December 2014 through September 2015 and again from October 2015 through July 2016. John Coffman is a resident of Texas, who worked as a van operator from January 2012 through June 2015. David Lesperance is a resident of Pennsylvania, who worked as a van operator from September 2014 through January 2015.

         Plaintiffs allege that in many weeks they were paid less than $7.25 per hour, that defendants failed to track their hours of work beyond the hours tracked by the United States Department of Transportation, and that they were required to pay their own expenses including fuel and repairs. Most UniGroup van operators were paid a percentage of the line haul, which often resulted in less than a minimum hourly wage, according to the complaint.

         Legal Standard

         Pursuant to Federal Rule of Civil Procedure 12(b)(3) defendants move to dismiss the complaint based on improper venue or, alternatively, to transfer the case pursuant to 28 U.S.C. § 1406(a). The plaintiffs bear the burden of establishing that they filed the case in the proper district once venue is challenged. MB Fin. Bank, N.A. v. Walker, 741 F.Supp.2d 912, 915 (N.D. Ill. 2010) (collecting cases); see also Grantham v. Challenge-Cook Bros., Inc., 420 F.2d 1182 (7th Cir.1969). In assessing a defendant's motion to dismiss under Rule 12(b)(3) for improper venue, the Court must view the allegations in the complaint in the light most favorable to the plaintiff and accept all well-pleaded facts except those as true unless contradicted by an affidavit. See Marzano v. Proficio Mortg. Ventures, LLC, 942 F.Supp.2d 781, 787 (N.D. Ill. 2013) (citation omitted). The Court also may consider evidence outside the pleadings to the extent that it assists the Court with resolving whether venue is proper. See Faulkenberg v. CB Tax Franchise Sys., LP, 637 F.3d 801, 809-10 (7th Cir. 2011); Coleman v. Supervalu, Inc. Short-Term Disability Program, 920 F.Supp.2d 901, 903-04 (N.D. Ill. 2013). Venue is governed by 28 U.S.C. §1391(b), which states that a civil action may be brought in:

(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or
(3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action.

         Plaintiffs argue that venue is proper here under §1391(b)(1) because the defendants are residents of Illinois. Plaintiffs assert that, because defendants are subject to personal jurisdiction in Illinois, they reside here pursuant to §1391(c)(2). However, in their First Amended Complaint plaintiffs only allege that venue is proper in this district pursuant to §1391(b)(2). Dkt. 19, at ¶24. A party opposing a motion to dismiss may not amend the complaint through arguments made in a brief. Pirelli v. Armstrong Tire Corp. Retiree Med. Benefits Trust v. Walgreen Co., 631 F.3d 436, 448 (7th Cir. 2011). However, even if plaintiffs can establish that defendants reside in the Northern District of Illinois for purposes of venue pursuant to §1391(c)(2) based on personal jurisdiction, a transfer is still in the interest of justice pursuant to 28 U.S.C. §1404(a).

         This Court may transfer venue to another district or division for reasons of convenience when it is “in the interest of justice.” 28 U.S.C. § 1404(a). Defendants must show that (1) venue is proper in the transferee district; (2) the transferee district is more convenient for both the parties and witnesses; and (3) transfer would serve the interest of justice. Bryant v. ITT Corp., 48 F.Supp.2d 829, 832 (N.D. Ill. 1999). This Court must consider these factors “in light of all the circumstances of the case.” Moore v. Motor Coach Indus., 487 F.Supp.2d 1003, 1006 (N.D. Ill. 2007) (quoting Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219 (7th Cir. 1986). The Seventh Circuit has suggested that the district court has discretion to decide the weight to be given each factor. See Coffey, 796 F.2d at 219, n.3; see also Van Dusen v. Barrack, 376 U.S. 612, 622, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964) (noting that the remedial purpose of § 1404(a) requires “individualized, case-by-case consideration of convenience and fairness”). The burden is defendants as the movant 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).

         Defendants seek transfer to the Middle District of Florida. They assert that venue is proper in that district pursuant to 28 U.S.C. §1391(b)(2), and that it is the more convenient forum. “In deciding whether to transfer a case pursuant to Section 1404(a), a court may consider several factors, including the plaintiff's choice of forum, the situs of material events, the convenience of the witnesses, and the convenience of the parties.” College Craft Cos. v. Perry, 889 F.Supp. 1052, 1054 (N.D. Ill. 1995) ...


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