United States District Court, E.D. Pennsylvania
MEMORANDUM AND ORDER
Fair Credit Reporting Act action is presently before this
Court on Motion of the Defendant, Equifax Information
Services, LLC (“Equifax” or “EIS”) to
transfer venue to the United States District Court for the
Northern District of Georgia. Based upon the rationale set
forth below, the motion shall be denied.
cause of action is premised upon the Defendant's alleged
failure to provide him with the telephone number of all of
the people and/or businesses which had accessed
Plaintiff's EIS consumer file within the past twelve
months as is required by 15 U.S.C.
§1681g(a)(3). Plaintiff originally filed this suit in
the Court of Common Pleas of Bucks County, Pennsylvania where
he lives and Defendant subsequently removed it to this Court
pursuant to 28 U.S.C. §1331. Defendant now seeks to
transfer venue of this action pursuant to 28 U.S.C.
§1404(a) and Plaintiff, in a separate motion which shall
be addressed separately, seeks to remand this matter to state
1404(a) states that:
For the convenience of parties and witnesses, in the interest
of justice, a district court may transfer any civil action,
suit or proceeding to any other district or division where it
might have been brought or to any district or division to
which all parties have consented.
been observed that §1404(a)'s “purpose is
‘to prevent the waste of time, energy and money'
and ‘to protect litigants, witnesses and the public
against unnecessary inconvenience and expense.'”
Weber v. Basic Comfort, Inc., 155 F.Supp.2d 283, 284
(E.D. Pa. 2001)(quoting Van Dusen v. Barrack, 376
U.S. 612, 616, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964) and
Continental Grain Co. v. Barge FBL-585, 364 U.S. 19,
26-27, 80 S.Ct. 1470, 4 L.Ed.2d 1540 (1960)).
foregoing language makes clear, the threshold question under
§1404(a) is whether the proposed venue is an appropriate
one. Kershner v. Komatsu Ltd., Civ. A. No. 17-4787,
2018 U.S. Dist. LEXIS 60439 at *3 (E.D. Pa. Apr. 10, 2018);
Vermont Juvenile Furniture Manufacturing, Inc. v. Factory
Direct Wholesale, Inc., 317 F.R.D. 16, 21 (E.D. Pa.
2016). The moving party bears the burden of proving that
venue is proper in the transferee district and that transfer
is appropriate, i.e., that transfer will serve the
convenience of the parties and witnesses and will promote the
interest of justice. Jumara v. State Farm Insurance
Co., 55 F.3d 873, 879 (3d Cir. 1995); Lindley v.
Caterpillar, Inc., 93 F.Supp.2d 615, 617 (E.D. Pa.
2000). Further, the Supreme Court has observed that
“Section 1404(a) is intended to place discretion in the
district court to adjudicate motions for transfer according
to an ‘individualized, case-by-case consideration of
convenience and fairness.'” Stewart
Organization, Inc. v. Ricoh Corp., 497 U.S. 22, 29108
S.Ct. 2239, 2244, 101 L.Ed.2d 22 (1988)(quoting Van Dusen
v. Barrack, 376 U.S. 612, 622, 84 S.Ct. 805, 812, 11
L.Ed.2d 945 (1964)).
undertaking this individualized analysis, Courts in the Third
Circuit are called upon to balance a variety of private and
public interest factors in reaching their conclusions
regarding whether transfer is or is not properly granted.
Although not exclusive, the private factors which are
appropriately considered include: (1) the plaintiff's
choice of forum as manifested in the original choice; (2) the
defendant's preference; (3) whether the claim arose
elsewhere; (4) the convenience of the parties as indicated by
their relative physical and financial condition; (5) the
convenience of the witnesses - but only to the extent that
the witnesses may actually be unavailable for trial in one of
the fora; (6) the location of books and records (similarly
limited to the extent that the files could not be produced in
the alternative forum). Jumara, supra;
Navetta v. KIS Care School, Inc., Civ. A. No.
14-5724, 2016 U.S. Dist. LEXIS 59113 at *5 (E.D. Pa. May 4,
2016). The relevant public interest factors include: (1) the
enforceability of the judgment; (2) practical considerations
that could make the trial easy, expeditious, or inexpensive;
(3) the relative administrative difficulty in the two fora
resulting from court congestion; (4) the local interest in
deciding local controversies at home; (5) the public policies
of the fora; and (6) the familiarity of the trial judge with
the applicable state law in diversity cases. Id, at
879-880; Cameli v. WNEP-16 the News Station, 134
F.Supp.2d 403, 405 (E.D. Pa. 2001).
Private Interest Factors
general legal principle, “a plaintiff's choice of a
proper forum is a paramount consideration in any
determination of a transfer request and that choice should
not be lightly disturbed.” Shutte v. Armco Steel
Corp., 431 F.2d 22, 25 (3d Cir. 1970); Navetta,
2016 U.S. Dist. LEXIS at *6. Where, however, the operative
facts and the events giving rise to the lawsuit took place
outside of the chosen forum, the plaintiff's venue
selection is entitled to considerably less deference.
Aetna, Inc. v. People's Choice Hospital, LLC,
Civ. A. No. 17-4354, 2018 U.S. Dist. LEXIS 40689 at *9 (E.D.
Pa. Mar. 13, 2018); Cameli, supra.
Likewise, “[w]hen the plaintiff is not a resident of
the chosen forum, she must make a strong showing of
convenience in order for her choice to be given
deference.” Navetta, at *7 (citing Windt
v. Qwest Communications International, Inc.,
529 F.3d 183, 190 (3d Cir. 2008)). And, “when the vast
majority of the acts giving rise to the plaintiff's
claims take place in another forum, that weighs heavily in
favor of transfer.” Jelley v. Colton Auto,
Inc., Civ. A. No. 17-1221, 2018 U.S. Dist. LEXIS 13678
at *10 (W.D. Pa. Jan. 29, 2018); Hamilton v.
Nochimson, Civ. A. No. 09-2196, 2009 U.S. Dist. LEXIS
62644 at *8 (E.D. Pa. July 21, 2009); Hayes v. Transcor
America, LLC, Civ. A. No. 08-293, 2009 U.S. Dist. LEXIS
53074 at *14 (E.D. Pa. June 23, 2009).
applying these principles and considering the foregoing
factors, we first note that it is undisputed that this case
could well have been commenced in the district to which
Defendant would have this matter transferred - the Northern
District of Georgia given that is where Defendant's
headquarters and principal place of business are located.
See, 28 U.S.C. §1391(b), (c). Plaintiff,
however, is a resident of Bucks County, Pennsylvania, which
is situate within the Eastern District of Pennsylvania.
Defendant alleges that since Plaintiff originally filed his
complaint in the Bucks County Court of Common Pleas, he
therefore did not specifically choose this forum and thus the
Eastern District of Pennsylvania should be afforded no
deference. While it is true that Plaintiff's first choice
of venue was in the state court system, there is nevertheless
no question but that in the federal context, this is the
Plaintiff's home district. We simply cannot in good
conscience find that Plaintiff's decision to initiate
suit in the Bucks County Court warrants a forfeiture of the
deference due this district in the §1404(a) analysis.
Indeed, the purpose of transfer is not to shift the
inconvenience from one party to another and thus a
Defendant's desire alone does not provide a sufficient
basis to overcome the Plaintiff's choice. See,
Perry v. Markman Capital Management, Civ. A. No.
02-744, 2002 U.S. Dist. LEXIS 19103 at *31 (E.D. Pa. Oct. 4,
2002)(citing Superior Precast Ins. v. Safeco Insurance
Co. Of America, 71 F.Supp.2d 438, 446 (E.D. Pa. 1999)
and Elbeco Inc. v. Estrella de Plato Corp., 989
F.Supp. 669, 679 (E.D. Pa. 1997)). Accordingly, in weighing
the first two private interest factors and given that the
defendant's preference is entitled to considerably less
weight than Plaintiff's under the circumstances such that
it does not overcome the strong deference accorded the
Plaintiff's forum choice, we find that under these
factors transfer is not favored. See also, EVCO
Technology & Development Co., LLC v. Precision Shooting
Equipment, Inc., 379 F.Supp.2d 728, 730 (E.D. Pa.
2005)(“Defendant's preference is entitled to
considerably less weight than Plaintiff's, as the purpose
of a venue transfer is not to shift inconvenience from one
party to another”).
considering the next private interest factor - where the
claim arose, Defendant asserts that the facts underlying
Plaintiff's allegations occurred in Atlanta, Georgia
where Defendant is headquartered and where its consumer
center and consumer reporting database is located and
maintained. Plaintiff submits that “a substantial part
of the events or omissions giving rise to the claim occurred
in the Eastern District of Pennsylvania” including
“(1) that fact that Plaintiff received his consumer
disclosure in this jurisdiction; (2) Plaintiff mailed
Defendant his written request letters for the full name,
address and telephone number for ‘Commercial
Lendin' from this jurisdiction; and (3) Defendant was
obligated to send such information to this jurisdiction and
omitted to do so.” Additionally, Plaintiff argues that
the Eastern District of Pennsylvania “is the
‘situs of events' that led to the underlying issue,
as Defendant: (1) was collecting information from