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Coleman v. Verde Energy USA Illinois, LLC

United States District Court, S.D. Illinois

November 2, 2017




         Before the Court is defendant Verde Energy USA Illinois, LLC's (“defendant”) Motion to Dismiss or in the alternative, to Stay or Transfer (Doc. 35). Plaintiff Christopher Coleman opposes (Doc. 40). Based on the following, the motion (Doc. 35)-in entirety-is DENIED.


         On June 5, 2017, plaintiff filed a one-count class action complaint naming defendant Verde Energy USA Illinois, LLC, and asserting violation of section 227(b)(1)(A)(iii) of the Telephone Consumer Protection Act (“TCPA”)[1], [2] (Doc. 32). More specifically, plaintiff alleged defendant routinely utilized an automatic telephone dialing system to place non-emergency calls to cellular telephone service numbers-without prior express consent (Doc. 32). For relief, plaintiff seeks, inter alia, designation as class representative pursuant to Fed.R.Civ.P. 23, damages, and costs (Id.).

         On June 28, 2017, defendant filed the instant Motion to Dismiss or, in the Alternative, Stay or Transfer the matter to the United States District Court for the Eastern District of Pennsylvania (“E.D. Pa.”) based on the “first-to-file” rule (Doc. 35). Defendant directs the Court's attention to Richardson v. Verde Energy USA, Inc., No. 5:15-cv-06325 (E.D. Pa. 2015), and argues that identical issues from the instant matter under the TCPA are presently being decided; and, that plaintiff's Amended Complaint-which substituted defendant corporate affiliates-does not permit circumvention of the “first-to-file” rule since Richardson is essentially identical to the instant claim[3] (Id.). For relief, defendant requests either dismissal of the suit, a stay, or a transfer of the matter to E.D. Pa. for consolidation with Richardson (Id.).

         In response, plaintiff raises three points: (1) the Seventh Circuit's lack of a “first-to-file” doctrine requiring dismissal of all suits after the first; (2) defendant's failure to establish E.D. Pa. is a clearly more convenient forum than the Southern District of Illinois; and (3) defendant's failure to establish a clear case of hardship or inequity which would justify staying the action (Doc. 40). As a result, plaintiff maintains defendant's motion should be denied-in entirety (Id.).

         III. ANALYSIS

         A. “First-to-File” Rule Inapplicable

         Defendant's argument is grounded on the Court's broad discretion to dismiss, stay, or transfer a case duplicative of another action presently pending in another federal court.[4] See McReynolds, 694 F.3d at 888. Defendant cites to several non-controlling cases in an attempt to convince the Court that similarity between duplicative actions is paramount over strict identity of parties in application of “first-to-file” doctrine. Cf. Adoma v. Univ. of Phoenix, Inc., 711 F.Supp.2d 1142, 1147 (E.D. Cal. 2010); see also Baatz v. Columbia Gas Transmission, LLC, 814 F.3d 785, 790 (6th Cir. 2016); Herer v. Ah Ha Pub., LLC, 927 F.Supp.2d 1080, 1089 (D. Or. 2013); Abbott Labs., Inc. v. Mead Johnson & Co., No. C2-98-0157, 1998 WL 416758, at *4 (S.D. Ohio, Apr. 21, 1998).

         “As a general rule, a federal suit may be dismissed for reasons of wise judicial administration . . . whenever it is duplicative of a parallel action pending in another federal court.” Serlin v. Arthur Andersen & Co., 3 F.3d 221, 223 (7th Cir. 1993) (internal citation omitted). Lawsuits are deemed “duplicative” if claims, parties, and available relief do not considerably differ. See McReynolds v. Merrill Lynch & Co., Inc., 694 F.3d 873, 889 (7th Cir. 2012). Conversely, “[t]his circuit does not rigidly adhere to a ‘first-to-file' rule[, ]” Trippe Mfg. co. v. Am. Power Conversion Corp., 46 F.3d 624, 629 (7th Cir. 1995); and “has ‘never laid down an inflexible rule that [a] prior filing controls.' ” Research Automation, Inc. v. Schrader-Bridgeport Int'l, Inc., 626 F.3d 973, 979 (7th Cir. 2010) (citing Warshawky & Co. v. Arcata Nat'l Corp., 552 F.2d 1257, 1265 (7th Cir. 1997)). Restated, no established Seventh Circuit rule requires district courts to dismiss duplicative lawsuits. See Gleash v. Yuswak, 308 F.3d 758, 760 (7th Cir. 2002) (explaining even where another similar suit is pending no rule of federal law requires dismissal of second or successive suit); but see, Cent. States, Se. and Sw. Areas Pension Fund v. Paramount Liquor Co., 203 F.3d 442, 445 (7th Cir. 2000) (stating dismissal appropriate when same party as filed second or successive suit).

         Here, it is indisputable two similar actions are pending in two different district courts, brought by two different plaintiffs, against two distinct defendants.[5] Due to lack of binding Seventh Circuit law governing treatment of non-identical plaintiffs bringing identical suits in different districts, and the fact that “first-to-file” is inapplicable under these conditions[6]-the Court declines to dismiss the instant action. See Blair v. Equifax Check Servs., Inc. 181 F.3d 832, 838 (7th Cir. 1999) (where plaintiffs are different but allege same class/claims in different district courts, no mechanical rule governs handling of overlapping cases).

         B. Transfer Inconvenient

         Pursuant to 28 U.S.C. § 1404, “[f]or 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 or to any district or division to which all parties have consented.” Courts balance the following three factors in deciding whether to grant or deny request of a transfer: (1) the convenience of witnesses and parties; (2) cost of transfer; and, (3) public interest and special circumstances involved. See F.T.C. v. MacArthur, 532 F.2d 1135, 1143 (7th Cir. 1976); see also Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219-20 (7th Cir. 1986) (explaining district judge must consider statutory factors in light of all case circumstances; choice to deny or grant transfer is within discretion of trial judge).

         In this case, defendant has the burden of establishing E.D. Pa. “is [a] clearly more convenient” venue than the Southern District of Illinois. See, e.g., Coffey, at 219-20. After careful review of the pleadings, no such burden has been met. The Court finds that transfer of the instant case would be inconvenient because plaintiff Coleman is a citizen of Illinois, the alleged TCPA violation transpired in Illinois, and a transfer of a case dealing with Illinois phone service customer rights-by a company that specifically ...

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