James et al v. Experian Information Solutions, Inc., No. 3:2012cv00902 - Document 70 (E.D. Va. 2014)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 1/2/14. (tdai, )
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UNITED FOR THE STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Richmond Division CLERK, U.S. DISTRICT COURT RICHMOND, VA GILBERT JAMES, Plaintiff, Civil Action No. v. EXPERIAN 3:12cv902 INFORMATION SOLUTIONS, INC., Defendant. MEMORANDUM OPINION This matter SOLUTIONS, and before INC.'S MOTION § 1404(a) 11) is OR, the Court TO TRANSFER VENUE IN THE ALTERNATIVE, PLAINTIFFS' on MOTION TO DEFENDANT PURSUANT TO 2 8 U.S.C. TO REASSIGN CASE STRIKE EXPERIAN (Docket No. DEFENDANT'S REPLY IN SUPPPORT OF ITS MOTION TO TRANSFER VENUE, OR IN THE ALTERNATIVE, TO REASSIGN below, CASE (Docket DEFENDANT EXPERIAN TO TRANSFER VENUE ALTERNATIVE, PLAINTIFFS' PURSUANT 27). For INFORMATION the reasons SOLUTIONS, TO 28 U.S.C. TO REASSIGN CASE INC.'S § 1401(a) (Docket No. 11) set OR, forth MOTION IN THE will be denied and MOTION TO STRIKE DEFENDANT'S REPLY IN SUPPORT OF ITS MOTION TO TRANSFER VENUE, CASE No. (Docket No. 27) OR IN THE ALTERNATIVE, will be denied. TO REASSIGN FACTUAL BACKGROUND Plaintiffs, Adedayo Peterson, Experian 26, Gilbert Information 2012. All Reporting Act following as thereby alerting all Solutions, to Experian Plaintiffs dispute Inc. a Theresa complaint ("Experian") of the social security years, full name, in number, their in card, statement; (3) and The specific does information from banking all credit of from the consumers specifically, not addresses the filed reports, erroneous must policy include consumer's full for the past two a copy of a government issued copy Experian did Experian but all of did not satisfy Experian's previous a Experian December Fair Credit Plaintiffs writing date of birth, identification (1) Hood, against on § 1681 et seq. notifications certain consumer information, reports. filed allegations: information (2) and Chandler, Plaintiff's claims differ slightly, disputes that Ridgley ("FCRA") , 15 U.S.C. the information; Joyce Susan Plaintiffs allege violations details of each them make and James, of not a utility correct or Plaintiffs' bank credit similarly detailed industry customers to whom it sells these consumer credit reports. require bill (Compl. f 28-29.) Plaintiffs allege that Experian's demand for this detailed information from individual consumers before taking any action on the consumer's dispute violated the FCRA. Plaintiffs also allege that the placement of these additional burdens on individual consumers is a deliberate attempt on the part of Experian to avoid resolving the individuals' FCRA. (Compl. disputes, and that this practice violates the I 33.) Plaintiffs bring their claim on behalf of other individuals similarly situated, and allege facts to support their proceeding as a "class" under Fed. R. Civ. LEGAL A. P. 23. (Compl. SI SI 38-43.) STANDARDS Transfer of Venue According parties court to 28 U.S.C. and witnesses, may division transfer where in any § the civil it might 1404(a), "for the interest action of to convenience justice, any other have been brought." The of a district district or statute "is intended to place discretion in the district court to adjudicate motions for transfer according to an ^individualized, case consideration Org., Dusen Inc. v. v. Ricoh, Barrack, of convenience Inc., 376 487 U.S. U.S. 612, and fairness.'" 22, 29 (1988) 622 case-byStewart (quoting Van (1964)). The party requesting a change of venue has the burden of demonstrating that a transfer of venue is warranted. Original Creatine Patent Co., Supp. Va. Ltd. 2005). v. Met-Rx USA, Inc., 387 F. 2d 564, 566 (E.D. When assess deciding two brought a issues: in the motion (1) to Could proposed transfer the venue, Plaintiffs' transferee the Court must have been claims forum; and (2) Is the transfer justified when considering the interests of justice and convenience of the parties? F. Supp. 2d 627, 630 See Koh v. Microtek Int'l Inc., (E.D. Va. 2003). Each issue 250 will be discussed seriatim. 1. Is Venue In The Transferee Forum Proper? A transfer of venue may only be granted "if the plaintiff could have maintained Taltwell, LLC v. the action Zonet USA Corp., at *32 (E.D. Va. Dec. 20, 2007). in the 2007 U.S. target Dist. forum." LEXIS 93465, Venue is proper in "a judicial district in which a substantial part of the events or omissions giving Venue rise is to the also defendant is corporation, claim occurred." proper a 28 in a judicial resident. 28 U.S.C. district U.S.C. § § 1391(b)(2). in which 1391(b)(1). any As a Experian "resides" in a district in which it would be subject to the court's personal jurisdiction. 28 U.S.C. § 1391(c)(2). Experian is an Ohio corporation with its headquarters and principal place of business in Costa Mesa, California. proposes where located to its in transfer National Allen, venue to Consumer Texas. the Northern Assistance That office, District Experian of Texas Center ("NCAC") is says Experian, is primarily responsible those alleged by relevant for handling consumer disputes, Plaintiffs. documents are including Experian alleges that all of its located as likely in Allen, Texas, are many of its likely witnesses. It Allen, appears Texas, warrant that, because has Experian the local Experian's minimum contacts with Court's exercise of the District jurisdiction over it there.1 of the actions that NCAC is located Texas in to personal Additionally, a "substantial part" created Plaintiffs' Experian's NCAC from which Experian claims occurred in likely sent Plaintiffs the written requests for more information that are the crux of this litigation. For these reasons, this action could have been brought in the Northern District of Texas. 2. Is Transfer Proper? The most important factors to be considered when ruling on a motion to transfer venue are the plaintiff's choice of forum, party convenience, witness convenience, and the interests of 1 Plaintiffs claim that Experian's NCAC activities also take place in Chile, complaints are and that, handled in in fact, the the majority of consumer Chilean office, not in Texas. Plaintiffs likewise emphasize that Experian's corporate offices are in California, not Texas. However, the fact that Experian has a branch corporate of its officers are NCAC in in Chile California and has the fact little that bearing its on whether venue could be proper in Texas. According to Experian, the vast majority of relevant documents are located in its Texas NCAC facility, and a federal court in Texas would likely have personal jurisdiction over Experian, given its continuing contacts with the state. justice. 708, Samsung 716 (E.D. Va. (Fed. Cir. 2007) (i) In forum level ""the named (E.D. where live, lower of Va. particular Inc., relevant then the each claim.'" Supp. 2d 627, (E.D. choice In of forum suited to a Cas. Co., for the 2006) 330 U.S. have alleged facts And, it consumer data "great 156 the or F. chosen where is entitled class action afforded a the to a suit, little showing which, Servs., 467 F. Eichenholtz v. 524, LLC, (citing Koster v. (1947)). Here, if taken as true, service, a of the (quoting 518, that adjudication Equifax Info. Va. given where is make appear to justify proceeding as a class. admission, 2d there will be numerous potential able Byerson v. 633 Lumbermens Mut. nationwide Supp. 523 F.3d 1374 occurred Brennan, 677 F. Supp. 198, 202 (S.D.N.Y. 1988) a F. Titan Corp., cases Id. choice best v. In plaintiff's possibly forum is class' Plaintiffs 386 forum is S.A. events consideration. plaintiff's of 2000) . weight because in such a case, plaintiffs, choice Bean Applications 563 not plaintiffs Rambus (rev'd on other grounds, a plaintiff's Ion 552, is 2005) v. (citing Koh, 250 F. Supp. 2d at 633). general, 2d Co. Deference Given To Plaintiff s Choice deference." Supp. Elecs. (Compl. Experian, would ff 38-43.) As by its own handles the data for millions of American consumers. appears that a substantial number of these consumers likely will have had similar experiences with Experian as have the putative class plaintiffs prosecute similar claims, suit. In letters particular, requesting situated to the as 15,357 Given the Experian plaintiffs. large thus would be entitled to or to join in the current class action additional plaintiffs and who estimates information Therefore, could number of that to it sent people 15,357 similarly there could be as many potentially potential join this plaintiffs and suit. the likelihood that they live in various parts of the United States (both inside and outside of the Eastern District of Virginia), the plaintiffs' in this choice of forum is entitled to little deference case. As the Plaintiffs contend, the Court did hold, in Byerson, that in a class action suit, the plaintiffs' there should be given great deference. at 633. choice of forum Byerson, 467 F. Supp. 2d That decision was influenced heavily by the facts that the plaintiffs' choice of forum was amenable to inexpensive discovery, was home to the Plaintiffs, and was home to key non party witnesses. Id. However, in this case, the Eastern District of Virginia is not particularly amenable to inexpensive discovery, is home to several of the plaintiffs, but is not home to key non-party witnesses. key non-party witnesses are Neither party has alleged that any located in Richmond. reasons, this case is distinguishable from Byerson. For these The normal deference to the plaintiffs in their choice of forum is lessened in this nationwide class action suit.2 (ii) Party Convenience A court's includes consideration " Aease obtaining the of access attendance compulsory process.'" Samsung, 386 F. of to convenience sources of of witnesses, 4 67 F. Byerson, Supp. the 2d at 717, to proof, and the the parties the cost availability of Supp. 2d at 633, n.13)). of (quoting However, simply "shifting" one party's inconvenience to the other party does not support a transfer 2 Plaintiffs venue. See Taltwell, Dist. Corp. , 2007 U.S. of LEXIS 93465, at *35 two other cases cite in LLC (E.D. support v. Zonet Va. of USA Dec. 20, a greater deference to class action plaintiffs' choice of forum: D'Addario v. Gellar, 264 F. Supp. 2d 367, 391 (E.D. Va. 2003) and Doe v. Connors, 796 F. Supp. 214, 222 (W.D. Va. 1992). In D'Addario, the court had been dealing with the parties in similar matters for quite some notwithstanding suit. time, that and the opted not action was to a transfer shareholder the case, derivative It is unclear how many shareholders were involved in the suit, where they were located, or how many could have joined the suit. In Connors, the court was considering a class action suit filed by beneficiaries of a coal mining trust. The plaintiffs filed suit in West Virginia. Even though there were approximately 118,000 beneficiaries who could have been party to the suit, plaintiffs' the Court gave deference to the class action choice of forum because 9,000 of the beneficiaries resided in Virginia, and thousands more resided in neighboring West Virginia, Kentucky, and Tennessee. Only 51 resided in the proposed Washington, D.C. transferee forum. The concentrated nature of the plaintiffs' residences in that case favored deference to the class action plaintiffs' case. This concentration (and the deference that would accompany it) is absent from this case, and these class action plaintiffs do not deserve the traditionally strong deference given to the plaintiff's choice of forum. 2007) (citing E. LEXIS 51285, v Lee, 482 Sullivan Coast Res. at *8 F. Ave. LLC (E.D. Va. Supp.2d 731, Prop., LLC, Jul 736 508 v. Hampstead, 2007 U.S. Dist. 16, 2007) (citing JTH Tax, (E.D. 2007); F. Va. Supp. 2d 473, Inc. Bd. of Tr. 478 (E.D. v. Va. 2007))). In this case, Experian supporting documentation, most contends that of which is almost in all of electronic its form, and its key witnesses are located in Texas and / or California, making Texas a geographically central convenient for the parties. 12.) forum that would be more (Def.'s Mot. Transfer 13, ECF No. However, the named Plaintiffs all live in Virginia, albeit in different divisions and districts within Virginia. Much of Plaintiffs' supporting evidence, at least as to what happened to them in their dealings with Experian and as to their damages, is located in Virginia. this case, If the Court were to grant a transfer in the inconveniences claimed by Experian would simply be shifted to the Plaintiffs, who would have to travel to Texas with their documents and witnesses just as Experian would have to travel to Virginia absent a transfer. Additionally, Experian's documents are available most of in electronic format, thus weakening the argument that it would be severely inconvenienced by defending the case in Virginia. Northern District of Texas would Because only a transfer to the serve to shift the inconvenience from one party to another, the consideration of convenience of party convenience weighs against a transfer. (iii) It witnesses is Witness Convenience necessary who may More weight consider be called to 250 F. Supp. Inc., is to Koh, transferee forum. LLC v. Adtech, also 129 given testify F. Supp. to the the 2d at 636 2d 936, inconveniences witnesses than cumulative witnesses, in 939 original or (citing Acterna, (E.D. suffered Va. by 2001). material and more weight is given to non-party witnesses than to party witnesses. Koh, 250 F. Supp. 2d at 636-37; see also Samsung, 386 F. Supp. 2d at 718. Experian has mentioned only two witnesses inconvenienced if required to appear before who might be this Court: Teresa Iwanski and Kimberly Hughes, both of whom are Experian employees whose "appearance . . . can be secured regardless of the forum's location through court order or persuasion by an employer who is a party to the action.'" Id^ at 719. Moreover, Experian has tendered no affidavits to show the materiality of the testimony to be offered by these witnesses.3 Without such affidavits, or Experian has submitted the affidavit of Teresa Iwanski (Docket No. 12-2, Def.'s Ex. B). This affidavit was submitted with Experian's brief in support of its motion to transfer venue on March 22, 2013. Specifically, the affidavit states Experian's principal place of business, its state of incorporation, and the likely location of relevant documents and witnesses that would be needed for trial. The affidavit says nothing about the likely 10 some other proof, significance (of which there of the testimony, is none) the Court about the importance of the witnesses' notes that could be employees called as of Midland (a to demonstrate is left testimony. to speculate Experian also California-based non-party witnesses. the However, company) Experian has not shown that any Midland witness will be asked to appear as a witness, and no information has been provided as to the materiality of any information that a Midland representative may offer. The would named Plaintiffs certainly plaintiffs expenses are five than more of travel to be to Texas it would be an citizens inconvenience without for of Virginia. for individual reimbursement Experian to It of their bring its two burden to show employees to Virginia to testify on its behalf. On this record, Experian has not met its that its witnesses would be materially inconvenienced by making an appearance in a Virginia forum. See Koh, 250 F. Supp. 2d at 636 (citing Corry v. CFM Majestic, Inc., 16 F. Supp. 2d 660, 667 n.16 (E.D. Va. 1998)) (holding that "[t]he party asserting witness inconvenience has the burden to proffer, by affidavit or otherwise, sufficient details respecting the witnesses and their potential testimony to enable the court to assess the trial witnesses themselves and how their anticipated testimony is relevant to this case. 11 materiality of evidence and the degree of inconvenience."); also Koh, 250 F. Supp. 2d at Heating & Air Conditioning, Va. 1988)) submitted court (noting in to ascertain inconvenience.'") (iv) The this of case convenience, analysis. interest is 1258 to give (E.D. "'typically "'necessary to weight in this weighs forum. enable the claim of favor of a heavily The in interest of justice factors that are unrelated to witness and is a part of the Court's transfer "'judicial judgments.'" 2d The interest of justice factor "'encompasses factors aimed (quoting Byerson, important Supp. 1253, Baylor at systemic integrity and Lycos, Inc. v. TiVo, Inc., 499 F. Supp. 2d 685, 695 (E.D.Va. 2007) F. much is v. Koh, 250 F. Supp. 2d at 633, 639 (citing Corry, 16 F. fairness.'" most Supp. information and justice and Supp. 2d at 666)). public F. Tr. Interest Of Justice consideration includes party 702 this form'" how (quoting Bd. This factor weighs against transfer. interest retaining Inc., that affidavit 636 see considerations economy Lycos, at and 499 F. 635)). The 467 F. Supp. 2d at 635)). The of are systematic the avoidance Supp. at 695 consideration 12 of integrity inconsistent (quoting Byerson, of fairness 467 includes consideration law. of docket congestion and knowledge of applicable Lycos, 499 F. Supp. at 695.4 Experian's argument counsel has engaged this district and that this case is the same by this factor is that the Plaintiffs' forum judge. Experian's transfer shopping by bringing informing related to presiding for reassignment. in on the in its other replicates words, its case filing another case that was In argument Clerk the in papers assigned to this aspect of alternative motions As the argument is presented by Experian, it has no real relation to the interest of justice analysis unless the alternative motion which, - reassignment as explained below, it does not. Apart from that topic, of Experian the has case not - has merit addressed the pertinent factors respecting the public interest analysis except to decry consideration of docket analysis. in For that contention, Telepharmacy Supp.2d import 741, here Solutions, 743-44 because (E.D. it was congestion as a factor Experian relies on the decision Inc. Va. in the v. 2003). Pickpoint Corp., Telepharmacy a two-party patent neither party had any connection with Virginia. case 238 is F. of no in which Thus, on its facts, Telepharmacy simply does not apply here. However, in federal courts deciding federal questions of law, "all federal judges are considered adept in interpreting the various aspects of federal law no matter where they are sitting." 15 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3854 (2007). 13 On this record, the Court cannot find that Experian has shown that the interest of justice augurs in favor of transfer. Having considered all of the applicable factors, the motion to transfer carried its venue burden must to be show denied that because transfer is Experian warranted has not under § 1404(a). B. Motion To Reassign Case As an alternative to transfer of venue, this action be re-assigned to Division. 5 Experian asks that another judge within the Richmond In support of this request, Experian argues that Plaintiffs have engaged in "forum shopping" and that Plaintiffs' counsel made a "misrepresentation" to the Clerk to the case would be assigned to the undersigned. assure that Specifically, Experian alleges that Plaintiffs' counsel misled the Clerk when Plaintiffs cover stated on their civil James v. Encore Capital Group sheet that the case was "related" to this case. result of this misrepresentation, of As a the instant case was assigned to the undersigned. 5If a party requests a new judge to preside over its case, it may make a motion under 28 U.S.C. § 144. Section 144 requires a party to submit and affidavit alleging the assigned judge's bias or prejudice. Section 455 of the same title governs the circumstances requiring disqualification of a judge in cases where the judge has a personal bias, or a conflict of interest that would preclude him or her from properly presiding over the case. 14 Plaintiffs, however, have shown that Mr. James and the other named plaintiffs in this case were all plaintiffs in the Encore Capital case, result of the litigation. motion to and that the claim in this case arose as a settlement reached in the Encore Capital Experian has cited no decisional law to support its reassign the case, and does not allege that the assigned presiding judge is biased in favor of the Plaintiffs.6 The counsel nine core (who of Experian's specializes FCRA cases against 6 Experian does, however, in argument is consumer law) companies other that the Plaintiffs' recently than Experian has filed and that seem to imply that the assigned judge has a general bias in favor of FCRA plaintiffs when it argues that eight of the last nine cases filed in this division have been randomly assigned to the assigned judge here. From that, Experian suggests that Plaintiffs' counsel has sought to land those cases on the docket of the undersigned. This line of reasoning implies that Plaintiffs' counsel intended to have this case assigned to the assigned judge because of prior favorable results. However, naked inferences of bias will not support the re-assignment of a case. See Mosley v. Tate, 2013 U.S. Dist. LEXIS 23826, at *10 (W.D.N.C. Feb. 20, 2013) ("In considering whether a judge's impartiality might be questioned, an 'objective reasonableness' standard applies and 'is not to be construed to require recusal on spurious or loosely based charges of partiality.' (quoting McBeth v. Nissan Motor Corp. USA, 921 F. Supp. 1473, 1477 (D.S.C. 1996))). '"Conclusory allegations charging the judge with improper conduct cannot justify disqualification.'" Mosely, 2013 U.S. Dist. LEXIS 23826, at *10 (quoting Duplan Corp. v. Peering Milliken, Inc., 400 F. Supp. 497, 513 (4th Cir. 1975)). If the defendant intended to allege bias, then the defendant was required to submit an affidavit stating "the facts and the reasons for the belief that bias or prejudice exists." 28 U.S.C. § 144. Defendant has not done that here, and obscure inferences that Plaintiffs' counsel is taking advantage of some sort of unstated bias is inadequate to support a motion to reassign the case. 15 eight of them have been assigned to the same presiding judge. Assuming that to be true, the fact that, it proves excluding randomly by computer, nothing because it ignores related cases, cases are assigned and Experian does not contend that any of those cases were filed under the "related case" exception to the random assignment process. that, or for better The worse, argument this also Court's docket large number of FCRA cases filed by Plaintiffs' as co-counsel. Experian's Thus, argument whatever point lacks merit is because ignores is home is fact to a counsel alone or intended to it the not be made by tethered to the pertinent facts respecting assignment of cases. There is no doubt that a misrepresentation that one case is related to another would prompt Court has so held in the past. Plaintiffs' counsel reassignment. In fact, the But, Experian has not shown that misrepresented any fact that affected the assignment of this case. Nor is there any legal because a number of Plaintiffs' support for reassigning a case counsel's cases in a particular subject area have been assigned to a particular judge in a court which, on its docket, has many cases of that description that are filed by Plaintiffs' counsel, absent some manipulation the assignment process by Plaintiffs' counsel. is why Experian's brief offers no decisional request. 16 That, of perhaps, support for its For the foregoing reasons, Experian's alternative motion to reassign the case also will be denied. C. Motion To Strike Under Rule 12(f), a party may move the court to strike "from a pleading" portions that are "an insufficient defense or any redundant, Fed. R. Civ. immaterial, P. 12(f) impertinent, (emphasis "pleading" as a complaint, to a counterclaim claim, a complaint, by the added). as such, complaint, an and a reply to an answer, court. Fed. R. scandalous Rule 7(a) Civ. P. an answer a an answer to a cross answer to if that reply was ordered 7(a). Rule a matter." defines an answer to a complaint, designated third-party or 7(b) third-party is entitled "Motions and Other Papers" and lists several documents which are not pleadings. Fed. R. Civ. P. 7(b). In this case, Plaintiffs have moved the Court to strike Experian's reply brief. By virtue of Rule 7(a), the defendant's reply brief that is subject to the Rule 12(f) The District Plaintiffs cite motion to strike. several of Virginia in which the to strike on the merits, is not a "pleading" decisions Court has from the Eastern considered motions notwithstanding that the motions were made in reference to materials that were not "pleadings" under 17 the Rule 7(a) .7 However, when specifically confronted with the issue, the Court has held that a party's brief is not a pleading under the Federal Rules of Civil Procedure, subject to a motion to Longshoremen's Ass'n, Terminals, provides strike a 904 F. a strike under Rule S.S. Clerks Local and is therefore not 12(f). 1624 v. International Virginia Supp. 500, 504 (E.D. Va. 1995). simple, clear method to dispose of Int' 1 This decision the motion to brief. For the foregoing reasons, PLAINTIFFS' MOTION TO STRIKE THE DEFENDANT'S REPLY IN SUPPORT OF ITS MOTION TO TRANSFER VENUE, OR IN THE ALTERNATIVE, TO REASSIGN CASE (Docket No. 27) will be denied. CONCLUSION For the INFORMATION reasons SOLUTIONS, set forth INC.'S MOTION herein, DEFENDANT TO TRANSFER VENUE EXPERIAN PURSUANT TO 28 U.S.C. § 1404(a) OR, IN THE ALTERNATIVE, TO REASSIGN CASE (Docket No. 11) will be denied and PLAINTIFFS' MOTION TO STRIKE 7 See Beverly v. Lawson, 3:10cv83-HEH, 2011 WL 586416 (E.D. Va. Feb. 9, 2011) (finding that the movant would not be prejudiced, and denying the motion Ilozor v. Hampton Univ., to strike the plaintiff's motions); CIV A 4:06cv90, 2007 WL 1310179 (E.D. Va. May 3, 2007) (finding that the reply memorandum complained of did not contain new evidence, and denying the motion to strike); DNT, LLC v. Sprint Spectrum, LP, 750 F. Supp. 2d 616, 630 (E.D. Va. 2010) (denying the motion to strike a reply brief, but stating that the court would not consider any new issues raised in the brief). 18 DEFENDANT'S IN THE REPLY IN ALTERNATIVE, SUPPORT OF ITS MOTION TO TRANSFER VENUE, OR TO be REASSIGN CASE (Docket No. 27) will denied. It is so ORDERED. /s/ ML Robert E. Payne Senior United States District Judge Richmond, Virginia Date: January %^ 2014 19
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