United States District Court, S.D. Illinois
R. HERNDON UNITED STATES DISTRICT JUDGE.
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.
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”),  (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.).
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 (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.).
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.).
“First-to-File” Rule Inapplicable
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. 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).
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).
it is indisputable two similar actions are pending in two
different district courts, brought by two different
plaintiffs, against two distinct defendants. 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-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).
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).
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