Stone v. U.S. Security Associates, Inc., No. 1:2015cv01842 - Document 25 (N.D. Ga. 2015)
Court Description: ORDER GRANTING MOTION FOR TRANSFER OF VENUE AND GRANTING REQUEST FOR JUDICIAL NOTICE by Judge Jon S. Tigar granting 17 Motion to Change Venue. (wsn, COURT STAFF) (Filed on 5/21/2015) [Transferred from California Northern on 5/22/2015.]
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Stone v. U.S. Security Associates, Inc. Doc. 25 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ROBERT STONE, Case No. 15-cv-00235-JST Plaintiff, 8 v. 9 10 U.S. SECURITY ASSOCIATES, INC., Defendant. Re: ECF No. 17 11 United States District Court Northern District of California ORDER GRANTING MOTION FOR TRANSFER OF VENUE AND GRANTING REQUEST FOR JUDICIAL NOTICE Before the Court is a Motion for Transfer of Venue filed by Defendant U.S. Security 12 13 Associates, Inc. (“USSA”), ECF No. 17, and a request for judicial notice in support of the motion, 14 ECF No. 17-1. Plaintiff Robert Stone opposes transfer. ECF No. 18. For the reasons set forth 15 below, the Court will grant both the motion to transfer and the request for judicial notice. 16 I. 17 BACKGROUND In this putative class action for violations of the Fair Credit Reporting Act (“FCRA”), 15 18 U.S.C. section 1681, et seq., Plaintiff Stone alleges that USSA uses noncompliant disclosure forms 19 to procure, or cause to be procured, consumer reports for employment purposes. Compl., ECF No. 20 1. Stone is a California resident who applied for employment with USSA around February 2014. 21 Id. ¶¶ 5, 14. He alleges that, as part of the employment application process, he signed an 22 Applicant Consent Form that did not comply with the FCRA, and that subsequently USSA 23 procured or caused to be procured a consumer report concerning him from a credit reporting 24 agency. Id. ¶¶ 14-15. Stone seeks to represent a class of: 25 26 27 28 All persons residing in the United States (including all territories and other political subdivisions of the United States) as to whom U.S. Security Associates, Inc. or any of its related companies procured or caused to be procured a consumer report for employment purposes within the period prescribed by FCRA, 15 U.S.C. § 1681p without first providing a clear and conspicuous disclosure in writing to the consumer at any time before the report Dockets.Justia.com 1 2 was procured or caused to be procured, in a document that consists solely of the disclosure, that a consumer report may be obtained for employment purposes. 3 Id. ¶ 22. On his employment application, Stone listed his place of residence as Hawthorne, 4 California. Declaration of Carol Longmore (“Longmore Decl.”) Ex. A, ECF No. 17-6. Stone was 5 hired to work for a USSA branch in Commerce, California, and assigned to a site located in Los 6 Angeles, California. Longmore Decl., ECF No. 17-4 ¶ 10. 7 Defendant USSA, a security services company, is a Delaware corporation headquartered in 8 Roswell, Georgia. ECF No. 13 ¶ 7; Longmore Decl. ¶ 2. It has operations in approximately 134 9 cities in 41 states. Longmore Decl. ¶ 2. Carol Longmore, the USSA Compliance Director responsible for USSA’s background check policies and procedures, works at the Roswell 11 United States District Court Northern District of California 10 headquarters and lives nearby. Id. ¶¶ 1-3. In her role as Compliance Director, Longmore has 12 worked with the Georgia-based USSA Human Resources department, as well as former USSA 13 employees Jim Flowers and Jon Dimalanta, to revise USSA’s Applicant Consent Form, which is 14 intended to comply with the FCRA. Id. ¶ 4. The last known address for Flowers is in Roswell, 15 Georgia, and the last known address for Dimalanta is in Fort Mill, South Carolina. Id. 16 USSA branch offices obtain consent for background checks for employment purposes 17 using either USSA’s Applicant Consent Form or forms provided by the consumer reporting 18 agency that conducts the background check. Id. ¶ 5. During the last five years, USSA has used 19 the services of nine such consumer reporting agencies: three based in New York, four based in 20 Georgia, one based in Pennsylvania, and one based in South Carolina. Id. ¶ 11. Since 21 approximately 2014, USSA has used an applicant tracking system that records electronic 22 signatures on USSA’s Applicant Consent Forms. Id. ¶ 6. In addition, consent forms for hired 23 applicants who begin work with USSA are uploaded to a database that is accessible from USSA’s 24 Georgia headquarters. Id. ¶ 7. Signed consent forms for other applicants, to the extent they have 25 been retained, are available only at the branch offices. Id. ¶ 8. 26 Plaintiff filed his class action complaint in this district on January 16, 2015. ECF No. 1. 27 Defendant filed its answer on February 17, 2015. ECF No. 13. On March 5, 2015, Defendant 28 filed the instant motion to transfer venue to the Northern District of Georgia. ECF No. 17. 2 1 Plaintiff opposes the motion. ECF No. 18. This Court has jurisdiction over this action pursuant to 15 U.S.C. section 1681p. 2 3 II. REQUEST FOR JUDICIAL NOTICE Defendant requests that the Court take judicial notice of the judicial caseload profiles of 4 5 the Northern District of California and the Northern District of Georgia, which are created by the 6 Administrative Office of the U.S. Courts and are available on the U.S. Courts website. ECF No. 7 17-1. Pursuant to Rule 201(b) of the Federal Rules of Evidence, “[t]he court may judicially notice 8 a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial 9 court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” The Court “must take judicial notice if a party 11 United States District Court Northern District of California 10 requests it and the court is supplied with the necessary information.” Fed. R. Evid. 201(c). The 12 Court concludes that these documents are proper subjects of judicial notice and grants Defendant’s 13 request. See United States v. Ritchie, 342 F.3d 903, 909 (9th Cir. 2003) (“Courts may take 14 judicial notice of some public records, including the records and reports of administrative bodies” 15 (internal quotation marks omitted)); Caltex Plastics, Inc. v. Great Pacific Packaging, Inc., No. 14- 16 cv-2794-RSWL (JEMx), 2014 WL 4060144, at *5 n.2 (C.D. Cal. Aug. 12, 2014) (granting request 17 for judicial notice of judicial caseload profiles). 18 III. MOTION TO TRANSFER 19 A. LEGAL STANDARD 20 Where venue is proper, “[f]or the convenience of parties and witnesses, in the interest of 21 justice, a district court may transfer any civil action to any other district or division where it might 22 have been brought.” 28 U.S.C. § 1404(a). The purpose of section 1404(a) “is to prevent the waste 23 of time, energy and money and to protect litigants, witnesses, and the public against unnecessary 24 inconvenience and expense.” Van Dusen v. Barrack, 376 U.S. 612, 616 (1964) (internal quotation 25 marks omitted). It places “discretion in the district court to adjudicate motions for transfer 26 according to an ‘individualized, case-by-case consideration of convenience and fairness.’” 27 Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van Dusen, 376 U.S. at 622). 28 In deciding a motion to transfer under section 1404, a court must weigh “a number of case-specific 3 1 factors.” Id. 2 For example, the court may consider: (1) the location where the relevant agreements were negotiated and executed, (2) the state that is most familiar with the governing law, (3) the plaintiff’s choice of forum, (4) the respective parties’ contacts with the forum, (5) the contacts relating to the plaintiff’s cause of action in the chosen forum, (6) the differences in the costs of litigation in the two forums, (7) the availability of compulsory process to compel attendance of unwilling non-party witnesses, and (8) the ease of access to sources of proof. 3 4 5 6 7 Jones v. GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 2000). The moving party bears 8 the burden to show that the proposed transferee district is the more appropriate forum for the 9 action. Id. at 499. 10 B. United States District Court Northern District of California 11 12 DISCUSSION 1. Venue in the Target District In considering a motion to transfer venue under 28 U.S.C. section 1404(a), the Court must 13 first determine whether the action could have been brought in the target district. Hoffman v. 14 Blaski, 363 U.S. 335, 343-44 (1960). Because USSA maintains its corporate headquarters and is 15 subject to personal jurisdiction in Roswell, Georgia, it is clear that the action “might have been 16 brought” in the Northern District of Georgia. 28 U.S.C. § 1404(a). Accordingly, the Court turns 17 to the question of whether the action should be transferred “[f]or the convenience of parties and 18 witnesses, in the interest of justice.” Id. 19 20 2. Plaintiff’s Choice of Forum Plaintiff argues that the motion to transfer venue should be denied in deference to his 21 choice of forum. In most cases, a plaintiff’s choice of forum is accorded “great weight.” Lou v. 22 Belzberg, 834 F.2d 730, 739 (9th Cir. 1987). But “[w]hen, as here, the plaintiff does not reside in 23 the forum, none of the alleged operative facts with respect to the plaintiff’s claims occurred in this 24 district, and the plaintiff acts as a representative of a nationwide rather than a statewide class 25 action, that choice ‘is entitled to only minimal consideration.’” Roe v. Intellicorp Records, Inc., 26 No. 12-cv-02567-YGR, 2012 WL 3727323, at *3 (N.D. Cal. Aug. 27, 2012) (quoting Lou, 834 27 F.2d at 739); see also In re Funeral Consumers Antitrust Litig., No. 05-01804-WHA, 2005 WL 28 2334362, at *7 (N.D. Cal. Sept. 23, 2005) (“[I]f there is any indication that plaintiff’s choice of 4 1 forum is the result of forum shopping, plaintiff’s choice will be accorded little deference.” 2 (internal quotation marks omitted)). Although Stone is a California resident, he asserts no 3 connection between his case and the Northern District of California, except that USSA regularly 4 does business here. Compl. ¶ 3. In these circumstances, the Court concludes that Plaintiff’s 5 choice of forum carries very little weight. 6 3. Convenience of Parties 7 USSA argues that transfer to the Northern District of Georgia would be more convenient 8 for the parties and witnesses because the material events and witnesses in this case are centered on 9 USSA’s corporate headquarters in Roswell, Georgia. ECF No. 17 at 1. USSA emphasizes that corporate decisions regarding USSA’s background check policies were made in Georgia, and 11 United States District Court Northern District of California 10 argues that nationwide FCRA class actions are “routinely” transferred to the forum in which the 12 defendant has its principal place of business and makes decisions regarding FCRA compliance. 13 Id. at 6 (citing Smith v. HireRight Solutions, Inc., No. 09-cv-6007, 2010 WL 2270541, at *4 (E.D. 14 Pa. June 7, 2010) (“Multiple courts considering § 1404 transfer motions in FCRA cases have 15 noted that the situs of the material events, and thus the appropriate venue, is generally the place 16 where the defendant credit reporting agency conducted its business.”)). 17 Defendant also states that most of the relevant documentary evidence is located in Georgia. 18 However, this factor does not significantly favor transfer. “With technological advances in 19 document storage and retrieval, transporting documents does not generally create a burden.” 20 David v. Alphin, No. 06-cv-04763-WHA, 2007 WL 39400, at *3 (N.D. Cal. Jan. 4, 2007). 21 Plaintiff, who is a California resident, asks the Court to weigh the parties’ relative means, 22 and notes that his attorneys are admitted to practice in California, not in Georgia. ECF No. 18 at 23 8. The Court will not grant a motion to transfer simply to shift the inconvenience to the plaintiff. 24 Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986). However, this 25 is not a situation where an individual plaintiff has filed suit against a large corporation in her home 26 district. Stone filed this case on behalf a nationwide class and claims no connection to the 27 Northern District of California. In addition, the Court gives no weight to the convenience of 28 litigating in California for counsel. See In re Funeral Consumers Antitrust Litig., 2005 WL 5 1 2334362, at *4 (“Although a few decisions have given weight to the location of counsel, most 2 have not saying that it is not to be considered at all or to be given very little weight.”). 3 This factor weighs in favor of transfer. 4 4. 5 With respect to witnesses, USSA has identified three individual witnesses with relevant Convenience of Witnesses knowledge, all of whom reside in either Georgia or South Carolina. See ECF No. 21 at 5-7; 7 Longmore Decl. ¶¶ 1-4. It also suggests that employees in its human resources department, 8 located in Roswell, Georgia, and employees of third party consumer reporting agencies, located in 9 New York, Georgia, Pennsylvania, and South Carolina, have relevant knowledge. See ECF No. 10 21 at 5-6; Longmore Decl. ¶¶ 4, 11. It would be more inconvenient for these witnesses to testify 11 United States District Court Northern District of California 6 in this district than in the Northern District of Georgia. 12 Plaintiff suggests that convenience to witnesses is irrelevant because, in his view, the key 13 issue in the case is a legal question involving the application of the FCRA to USSA’s consent 14 forms, and no witness testimony will be required. ECF No. 18 at 5. Defendant responds that 15 testimony from USSA corporate witnesses will be necessary to identify the specific consent forms 16 used and to explain how the documents were modified over the relevant timeframe, as well as to 17 determine the appropriate level of any statutory penalties awarded. ECF No. 21 at 6. In addition, 18 third party witnesses from credit reporting agencies will be needed to identify members of the 19 putative class because only applicants who were subjected to a background check have a FCRA 20 claim. Id. At this stage, it is impossible to anticipate how much witness testimony will be 21 necessary to resolve this case. Defendant’s prediction that at least some testimony will be required 22 appears plausible based upon the information about USSA’s hiring practices contained in the 23 Longmore Declaration. Therefore the Court will not discount the importance of convenience to 24 the witnesses. See Hendricks v. StarKist Co., No. 13-cv-729-YGR, 2014 WL 1245880, at *3 25 (N.D. Cal. Mar. 25, 2014) (“The convenience of witnesses is said to be the most important factor 26 in passing on a transfer motion.”). 27 Plaintiff also argues that Defendant has not adequately described the material evidence that 28 the witnesses will present. ECF No. 18 at 5. But the Court concludes that Longmore’s declaration 6 1 adequately identifies her position at USSA, her residence, her anticipated testimony, and the 2 identities of two additional potential witnesses located in or near Georgia. 3 This factor also weighs in favor of transfer. 5. 4 5 Interest of Justice In evaluating the interest of justice, a court may consider public interest factors such as 6 court congestion, local interest in deciding local controversies, the interest in having the trial of a 7 diversity case in a forum that is at home with the governing law, conflicts of laws, and burdening 8 citizens in an unrelated forum with jury duty. Decker Coal Co., 805 F.2d at 843. In assessing court congestion, “the real issue is not whether a dismissal will reduce a 10 court’s congestion but whether a trial may be speedier in another court because of its less crowded 11 United States District Court Northern District of California 9 docket.” Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1337 (9th Cir. 1984). The judicial center 12 profiles show that, as of September 2014, the median times from filing to disposition and from 13 filing to trial in civil cases were comparable in the Northern District of Georgia and the Northern 14 District of California (6.4 and 29.8 months in the Northern District of Georgia, and 7.9 months 15 and 30.9 months in the Northern District of California). A difference of 1.5 months or less is not 16 significant enough to weigh in favor of transfer. In addition, the two district courts are equally 17 equipped to adjudicate federal FCRA claims. Stone has not asserted any state law claims. 18 The Court concludes that neither forum has a greater local interest in resolving the 19 nationwide claims, which presumably affect putative class members in both districts. See Lax v. 20 Toyota Motor Corp., No. 14-cv-01490-WHO, 2014 WL 3973482, at *6 (N. D. Cal. Aug. 14, 21 2014) (“There is no significant local interest in the controversy as between the Central and 22 Northern Districts. That [Toyota Headquarters] is located in the Central District does not mean 23 that the Central District has a significant or unique interest over the Northern District in resolving 24 the nationwide claims at issue in this case.”); Emerson v. Toyota Motor N. Am., No. 14-cv-02842- 25 JST, 2014 WL 6985183, at *2 (N.D. Cal. Dec. 9, 2014). Because both forums have an interest in 26 resolving the nationwide FCRA claims, the factor concerning burdens on prospective jurors is also 27 neutral. 28 Balancing the relevant factors, the Court determines that Defendant has met its burden to 7 1 show that the Northern District of Georgia is a more appropriate forum for this action. The 2 convenience of the parties and witnesses weighs in favor of transfer. The public interest factors 3 are neutral. Only Plaintiff’s choice of forum weighs against transfer and, as discussed above, this 4 factor merits only minimal consideration in the analysis. 5 IV. CONCLUSION 6 For the foregoing reasons, Defendant’s motion to transfer venue is granted. This action 7 shall be transferred to the United States District Court for the Northern District of Georgia. All 8 further proceedings in this case are stayed until the case is transferred. 9 10 IT IS SO ORDERED. Dated: May 21, 2015 United States District Court Northern District of California 11 12 13 ______________________________________ JON S. TIGAR United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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