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Hirst v. Skywest Inc.

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

September 24, 2019

ANDREA HIRST, MOLLY STOVER, and EMILY STROBLE SZE, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
SKYWEST, INC. and SKYWEST AIRLINES, INC., Defendants. CHERYL TAPP, RENEE SITAVICH, SARAH HUDSON, BRANDON COLSON, and BRÜNO LOZANO, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
SKYWEST, INC. and SKYWEST AIRLINES, INC., Defendants.

          MEMORANDUM OPINION AND ORDER

          John J. Tharp, Jr. United States District Judge.

         Plaintiffs brought these suits in 2015, challenging SkyWest’s “block-time” compensation structure for flight attendants under the Fair Labor Standards Act and wage and hour laws of several states (Arizona, California, Illinois, and Washington). Initially, Hirst was filed in the Northern District of Illinois and Tapp in the Northern District of California.[1] The plaintiffs stipulated to transfer Tapp to this District. The Tapp case was assigned to this Court as related to Hirst, and the two cases have thereafter moved in tandem. After first dismissing the plaintiffs’ claims without prejudice and permitting repleading, this Court ultimately dismissed all FLSA claims in both cases and held that the Dormant Commerce Clause precluded the plaintiffs’ state law wage claims, ECF No. 107. The Court entered final judgment on behalf of SkyWest in November 2017, and the plaintiffs appealed. The Seventh Circuit affirmed the dismissal of the plaintiffs’ FLSA claims but reinstated their state law claims. ECF No. 120. The parties filed petitions for writs of certiorari to the United States Supreme Court and requested to stay proceedings pending the Court’s ruling on those petitions. ECF Nos. 125, 128. Both petitions were denied, and this Court lifted the stay on June 27, 2019. ECF No. 131.

         Meanwhile, in February 2019, another action by SkyWest flight attendants, asserting wage claims under California law, was filed in the Superior Court of San Francisco; SkyWest removed the case to the Northern District of California, Wilson et al. v. SkyWest et al., No. 3:19-CV-01491-VC, and then filed a motion to transfer Wilson to the Northern District of Illinois. Wilson ECF No. 16. SkyWest withdrew that transfer motion, however, in light of Ninth Circuit authority prohibiting courts from considering the claims of putative class members for purposes of determining venue prior to class certification, Wilson ECF Nos. 25, 26. Shortly after this Court lifted the stay of proceedings in Hirst and Tapp, SkyWest filed a motion with the United States Judicial Panel on Multidistrict Litigation (“JPML”), seeking to establish a multidistrict litigation (“MDL”) proceeding comprising the three cases and to transfer Wilson to this Court for coordinated pretrial proceedings. ECF No. 133.[2] Three weeks later, the plaintiffs in both Hirst and Tapp filed the instant motion to transfer these cases to the Northern District of California, where Wilson is pending, for consolidated proceedings in that District. ECF No. 139.

         The premise of SkyWest’s MDL motion is that consolidation of these three cases in a single forum is necessary because the cases involve similar legal claims arising from a common factual context (the operation of SkyWest’s “block-time” compensation structure). “It would be inconvenient and manifestly unfair, ” SkyWest maintains, to require it “to defend itself against similar claims, brought on behalf of the same employees, on the same theory, in different jurisdictions, potentially resulting in conflicting results.” Mem. Supp. MDL Mot. 1, ECF No. 133-2. SkyWest also posits that consolidating the three cases would cure “the inconvenience to the witnesses-on both sides-who would have to repeatedly pause their lives to testify in depositions in multiple jurisdictions 2, 000 miles apart.” Id.

         For their part, the Hirst and Tapp plaintiffs acknowledge “that consolidation in a single location is in the interest of judicial economy and cross-district consistency.” Pls.’ Mot. Transfer 2, ECF No. 139. There is, then, no dispute between the parties about whether consolidating these cases in a single court is appropriate. The parties agree that these cases should be litigated in one forum-they just disagree about whether that forum should be the Northern District of Illinois or the Northern District of California. And as to that dispute, each side accuses the other of forum shopping, and the Court will address that issue at the threshold.

         Are the parties’ positions about where the claims asserted in these cases should be resolved influenced by an assessment of where they believe (rightly or wrongly) they are likely to have the most success? Of course they are. In this Court, the plaintiffs have lost their leading claim, under FLSA, and had final judgment entered against them (though their state law claims were revived after appeal); it is hardly surprising to find, in light of these setbacks, the plaintiffs advocating for transfer of these cases to a new forum while SkyWest seeks to engineer the transfer of another case to this Court. And here’s the proof of the forum-shopping pudding: while each side agrees that the cases should be consolidated in a single forum, neither is willing to accede to consolidation in the preferred forum of the other. No. matter the benefits of consolidation, each side prefers a split result-preserving some ability to litigate in the forum of its choosing-to one in which all claims are heard by the Court in the other side’s favored venue. SkyWest opposes the plaintiffs’ motion regardless of the JPML court’s ruling on its MDL motion; the Hirst and Tapp plaintiffs oppose MDL transfer of Wilson to this Court even if one or both of those cases remain in Chicago. Plainly, the parties’ respective motions have more to do with how they have fared to date in this Court than with achieving the benefits of consolidation.

         In light of this sort of mutual gamesmanship, it is tempting to say: “A pox on both your houses, ”[3] and to leave each case right where it is. But while doing so might deny both sides their preferred outcome (consolidation of all three cases in their preferred forum), it would not serve the interests that § 1404(a) is intended to promote. Gamesmanship aside, the Court agrees with the parties that these cases should be resolved in a single forum and that doing so will serve the convenience of the parties and witnesses and the interest of justice. Accordingly, it is incumbent upon this Court to resolve what the parties dispute: whether transferring these cases to the Northern District of California is permitted and warranted under § 1404(a).[4]

         Section 1404(a) provides that “[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.” Transferring a case under § 1404(a) is appropriate when “(1) venue is proper in the transferor district, (2) venue and jurisdiction are proper in the transferee district, and (3) the transfer will serve the convenience of the parties, the convenience of the witnesses, and the interest of justice.” Vandeveld v. Christoph, 877 F.Supp. 1160, 1167 (N.D. Ill. 1995). Courts in the Seventh Circuit consider a variety of factors in analyzing when a motion to transfer should be granted. With respect to the “interest of justice, ” these factors include “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.” Research Automation, Inc. v. Schrader-Bridgeport Int’l, Inc., 626 F.3d 973, 978 (7th Cir. 2010). With respect to the convenience of the parties and witnesses, they include “(1) the plaintiff’s choice of forum; (2) the situs of material events; (3) the relative ease of access to sources of proof; (4) the convenience of the witnesses; and (5) the convenience to the parties of litigating in the respective forums.” Body Sci. LLC v. Bos. Sci. Corp., 846 F.Supp.2d 980, 992 (N.D. Ill. 2012) (citing Research Automation, Inc., 626 F.3d at 978). The “interest of justice may be determinative, warranting transfer or its denial even where the convenience of the parties and witnesses points toward the opposite result.” Research Automation, Inc., 626 F.3d at 978. And where venue is improper in the transferee court, the action may not be transferred even if the interest of justice and convenience of the parties and witnesses would favor transfer. See Aliano v. Quaker Oats Co., No. 16-CV-3087, 2017 WL 56638, at *4 (N.D. Ill. Jan. 4, 2017).

         For Hirst, the inquiry is straightforward. Under § 1404(a), a case may be transferred to any district or division in which it might have been brought or to which all parties have consented. Defendants have indicated that they will not consent to transfer, Defs.’ Opp’n to Pls.’ Mot. Transfer 6, ECF No. 150, which forecloses one option under § 1404(a). The other is equally unavailing, because Hirst could not originally have been brought in the Northern District of California-a fact the plaintiffs effectively concede by their failure to argue otherwise. Venue for the Hirst case is improper because Hirst brings only Illinois state law claims, [5] Hirst Second Am. Compl. ¶¶ 131-53, ECF No. 85, and does not allege that a substantial part of the acts or omissions giving rise to the claims occurred in California.[6] Though the Hirst plaintiffs allege claims on behalf of a putative class, id. ¶¶ 105-13, for some of whom venue might be proper in the Northern District of California, “the claims of unnamed class members can never make permissible an otherwise impermissible venue. Rather, in a class action, the ‘events’ in question are only those involving the named plaintiffs.” In re Bozic, 888 F.3d 1048, 1053 (9th Cir. 2018). SkyWest ran into this obstacle when it tried to transfer Wilson to this District pursuant to § 1404(a); the same rule applies to the plaintiffs. Accordingly, Hirst cannot be transferred to the Northern District of California pursuant to § 1404(a).

         For Tapp, venue poses no problem; venue is proper either in the Northern District of California, where the case was originally brought, or in the Northern District of Illinois, transfer to which all parties consented. Nevertheless, that Hirst must remain in Chicago weighs strongly against transferring Tapp back to the Northern District of California. As noted, the premise of the plaintiffs’ § 1404(a) motion is that all three cases should be resolved in San Francisco, but that simply will not happen given the absence of venue for Hirst and SkyWest’s lack of consent.

         As noted, despite their acknowledgment that all three of these cases should be resolved together, the plaintiffs reply to what they deem SkyWest’s intransigence with like obstinacy. Tapp, they contend, should be transferred to the Northern District of California even if Hirst remains in Chicago. Before addressing the substance of that argument, it bears noting that the plaintiffs’ motion does not actually request transfer of Tapp alone; the plaintiffs’ motion seeks transfer of both cases and the arguments in support of the motion in their opening brief are all addressed to the merits of transferring both cases to the court in which the Wilson case is pending. Only after SkyWest responded to the motion-by pointing out that Hirst cannot be transferred to the Northern District of California because there is no venue in that district and by refusing to consent to transfer Hirst-did the plaintiffs change their ask; now, they request only the transfer of Tapp under § 1404(a) and that SkyWest be “strongly encouraged to consent to the transfer of [the] Hirst case with Tapp.” Reply Supp. Pls.’ Mot. Transfer 11, ECF No. 152. The plaintiffs’ arguments extolling the benefits of having all three cases resolved in the Northern District of California have similarly morphed into arguments that transferring only the Tapp case yields the same benefits, notwithstanding that Hirst remains pending in Chicago.

         So it is to consideration of that question-whether transfer of Tapp alone is warranted under § 1404(a)-that the Court turns. The § 1404(a) analysis turns on the Court’s assessment of the convenience factors and the interest of justice. District courts have a great deal of discretion in assessing transfer factors, as weighing these considerations “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).

         With respect to the convenience factors, the Tapp plaintiffs’ first choice of venue was the Northern District of California, and ordinarily a plaintiff’s choice of forum deserves significant weight in determining whether to transfer a case under § 1404(a). In this case, however, the plaintiffs’ choice of forum merits much less consideration. For starters, this is a putative class action, and “a plaintiff’s choice of forum is afforded less deference when the plaintiff represents a class.” Lafleur v. Dollar Tree Stores, Inc., No. 11-CV-8473, 2012 WL 2280090, at *3 (N.D. Ill. June 18, 2012). More significant still, the Tapp plaintiffs stipulated to transfer to the Northern District of Illinois so that Tapp could be consolidated with Hirst. Their stipulation belies their arguments about how decisively the relevant convenience factors and interest of justice favor transferring the case; those arguments were equally availing four years ago, when the Tapp plaintiffs agreed to the transfer to this District, but at that point the Tapp plaintiffs did not find them of sufficient concern to object to the transfer of venue to this Court. The plaintiffs’ agreement to transfer their claims to this Court significantly diminishes the weight to be accorded to their original choice of forum.

         The Tapp plaintiffs say that they should not be bound by their original stipulation, because circumstances have unforeseeably changed. That assertion misses the point. Even assuming that the Tapp plaintiffs are not precluded by their stipulation from seeking a return to the court in which they originally filed their claims, their agreement to transfer their claims to this District weakens their argument that the convenience factors and the interest of justice favor litigating the case in the transferor district. Their claim that these factors now decisively weigh in favor of returning the case to the Northern District of California when they did not at the outset of the case rings hollow. What has changed? As the plaintiffs assert in their opposition to SkyWest’s MDL motion, “virtually all that has been accomplished” in this District is the dismissal of their FLSA claims. Resp. in Opp. 3, ECF No. 14 (MDL 2916). But dismissal of the FLSA claims hardly qualifies as an “unforeseeable, ” “unanticipatable, ” or “unanticipated post-transfer event, ” Reply Supp. Pls.’ Mot. Transfer 4-5, ECF No. 152, and does not warrant returning the case to the transferor district after almost four years of litigation. A motion to dismiss all of the ...


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