United States District Court, N.D. Illinois, Eastern Division
JACK JUDGE, DOMINIC OLIVIERA, JOHN COFFMAN, and DAVID LESPERANCE, individually and on behalf of those similarly situated, Plaintiffs,
UNIGROUP, INC., MAYFLOWER TRANSIT, LLC, and UNITED VAN LINES, LLC, Defendants.
MEMORANDUM OPINION AND ORDER
JOHNSON COLEMAN United States District Judge
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 . For the reasons set
forth herein, this Court grants the motion to transfer.
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
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
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.
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
(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.
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
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).
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) ...