United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
HONORABLE THOMAS M. DURKIN UNITED STATES DISTRICT JUDGE
Defendants are lending institutions owned and incorporated by
the Habematolel Pomo of Upper Lake Indian Tribe, a federally
recognized Indian tribe located in Upper Lake, California.
The Consumer Financial Protection Bureau (the
“CFPB”) alleges that Defendants originate and
collect usurious loans in violation of the federal Consumer
Financial Protection Act and the Truth in Lending Act.
Defendants have moved to transfer venue to the District of
Kansas where they own a separately incorporated call center
that contacts potential borrowers and administers the
underwriting process for Defendants. For the following
reasons, that motion, R. 18, is granted.
28 U.S.C. § 1404(a) “a district court may transfer
any civil action to any other district or division where it
might have been brought” for “the convenience of
the parties and witnesses” and “in the interest
of justice.” The statute “is intended to place
discretion in the district court to adjudicate motions for
transfer according to an individualized, case-by-case
consideration of convenience and fairness.” Stewart
Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988).
“The statute permits a ‘flexible and
individualized analysis' and affords district courts the
opportunity to look beyond a narrow or rigid set of
considerations in their determinations.” Research
Automation, Inc. v. Schrader-Bridgeport Int'l, Inc.,
626 F.3d 973, 978 (7th Cir. 2010) (quoting Stewart,
487 U.S. at 29). “The weighing of factors for and
against transfer necessarily involves a large degree of
subtlety and latitude, and, therefore, is committed to the
sound discretion of the trial judge.” Coffey v. Van
Dorn Iron Works, 796 F.2d 217, 219 (7th Cir. 1986).
considering these factors, the Court is “permitted
[and] in some instances [may be] required, to make whatever
factual findings are necessary prior to issuing a [transfer
decision].” In re LimitNone, LLC, 551 F.3d
572, 577 (7th Cir. 2008). The Court may consider affidavits
in making such findings. See Bd. of Trustees of the Auto.
Mechanics' Local No. 701 Union & Industry Welfare
Fund v. Brown, 2014 WL 4057367, at *1 (N.D. Ill. Aug.
14, 2014); Simonian v. Monster Cable Prods., Inc.,
821 F.Supp.2d 996, 998 (N.D. Ill. 2010); Simonian v.
Hunter Fan Co., 2010 WL 3975564, at *1 (N.D. Ill. Oct.
7, 2010). The party seeking transfer “has the burden of
establishing, by reference to particular circumstances, that
the transferee forum is clearly more convenient.”
Coffey, 796 F.2d at 220-21.
respect to the convenience evaluation, courts generally
consider the availability of and access to witnesses, and
each party's access to and distance from resources in
each forum.” Research Automation, 626 F.3d at
978. “Other related factors include the location of
material events and the relative ease of access to sources of
Seventh Circuit decision cited by the CPFB-In re National
Presto Industries, Inc., 347 F.3d 662 (7th Cir. 2003)-is
instructive on the convenience analysis here. In
Presto, the Securities and Exchange Commission sued
a company headquartered in Wisconsin. The company moved to
transfer the case to Wisconsin because “all” of
the company's witnesses were within the subpoena power of
the Western District of Wisconsin, but not that of the
Northern District of Illinois. Id. at 664. The
district court denied the company's motion because the
SEC's Chicago office had investigated and filed the case,
and “emphasiz[ed] that . . . a plaintiff's choice
of forum is entitled to considerable deference.”
Id. at 663. The company sought mandamus from the
Seventh Circuit, which the court denied based on the
extraordinarily high standard for mandamus. In denying the
petition, however, the Seventh Circuit noted the preference
for a plaintiff's choice of forum is no more significant
than any other factor, but simply serves to break a
“tie” when “the inconvenience of the
alternative venues is comparable.” Id. at 665.
Indeed in Presto, despite the SEC's office in
Chicago and the failure of the company to satisfy the
standard for mandamus, the court made the following statement
about the balance of the factors relevant to a motion to
We doubt that the balance of convenience actually favors the
SEC or even that we have a tie. Given the location of
documents, the limited subpoena power of the Northern
District of Illinois with regard to [the company's]
potential witnesses, and the lighter docket in the Western
District of Wisconsin, we suspect that the balance favors the
Id. at 665.
Seventh Circuit's reasoning-albeit in dicta-is persuasive
here. The CPFB admits that Defendants use the call center in
Kansas to contact potential borrowers and administer the
underwriting of the loans. R. 1 ¶ 43. Defendants have
identified twelve employees of the call center who are
potential witnesses and are outside the Court's subpoena
power. See R. 18-2 ¶ 27. Moreover, unlike the
SEC in Presto, the CFPB is not litigating this case
out of its Chicago office, but instead has assigned attorneys
from Washington, D.C. to travel to litigate the case. These
attorneys will be no more inconvenienced traveling to Kansas
CFPB argues that the case should remain in Illinois because
it is the “situs of material events.” R. 30 at 6.
The CFPB makes this argument based on records of funds
transfers from Defendants to consumer accounts with Illinois
addresses, indicating that there are thousands of potential
victims in Illinois. See Id. at 6. Furthermore, the
CFPB points out that it has not alleged that there are
victims in Kansas. Id. The problem with this argument is
that the CFPB admits that Defendants' borrowers also
reside in 16 other states besides Illinois, meaning that
these states are also part of the “situs of material
events.” Id.; see also R. 1 at 22
(listing the states “in which Defendants' loans are
void in whole or in part”). In other words, there is
nothing special about Illinois for this case. To the extent
the CFPB will need to call victims as witnesses at trial, it
is much more likely that some of the alleged many thousands
of victims will be willing to testify without subpoena, than
that the twelve employees of Defendants' subsidiary will
be willing to do so. Moreover, the CFPB has not specifically
identified any of these alleged victims. Courts generally
give greater weight to the convenience of already identified
witnesses. See Lee v. Love's Travel Stops &
Country Stores, Inc., 2015 WL 6742074, at *3 (N.D. Ill.
Nov. 3, 2015); Sojka v. DirectBuy, Inc., 2014 WL
1089072, at *3 (N.D. Ill. Mar. 18, 2014) (citing Howell
v. Joffe, 478 F.Supp.2d 1014, 1023 (N.D. Ill. 2006));
Harris v. Illinois, 2010 WL 145790, at *4 (N.D. Ill.
Jan. 12, 2010); Law Bulletin Pub., Co. v. LRP Pubs.,
Inc., 992 F.Supp. 1014, 1018 (N.D. Ill. 1998).
Therefore, the Court finds that the District of Kansas is
clearly more convenient than this district.
Interest of Justice
‘interest of justice' is a separate element of the
transfer analysis that relates to the efficient
administration of the court system.” Research
Automation, 626 F.3d at 978. “For this element,
courts look to factors including docket congestion and likely
speed to trial in the transferor and potential transferee
forums; each court's relative familiarity with the
relevant law; the respective desirability of resolving
controversies in each locale; and the relationship of each
community to the controversy.” Id. (internal
citations omitted). “The interest of ...