United States District Court, E.D. Missouri, Eastern Division
RADHA GEISMANN, M.D., P.C., individually and on behalf of all others similarly situated, Plaintiff,
ZOCDOC, INC., Defendant.
MEMORANDUM AND ORDER
CATHERINE D. PERRY, District Judge.
Plaintiff Radha Geismann, M.D., P.C., brought suit against ZocDoc, Inc., in Missouri state court, alleging that she received two unsolicited faxes that advertised ZocDoc's services and failed to contain legally proper opt-out notices. Geismann alleges that the sending of the faxes violated the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227 et seq., and Missouri common law against conversion. Geismann apparently seeks to represent nationwide classes on both claims and has moved to certify this case as a class action.
After removing the case to this court, ZocDoc moved to strike Geismann's class allegations; transfer this case to the United States District Court for the Southern District of New York; dismiss Geismann's claims altogether; and/or stay the case pending FCC interpretation of a regulation under the TCPA. I find that transfer is appropriate under 28 U.S.C. § 1404(a) because, among other things, the only nonparty, nonexpert witnesses identified by either party live within the Southern District of New York or are subject to its subpoena power. Because the motion to transfer is dispositive, I will deny as moot the remaining motions filed by both parties without prejudice to their right to refile them in the Southern District of New York, if appropriate.
Plaintiff Geismann is a medical practice domiciled in St. Louis, within this district. All of its employees are located in the state of Missouri. Each of its three current employees has information about what entities had a business relationship with Geismann or were permitted to send it faxes, as well as what faxes were received. ( See G. Geismann Decl., ¶¶ 3, 8-11.) Geismann alleges that in 2012 it received two unsolicited faxes from ZocDoc, a medical advertiser, and that these faxes did not contain a legally sufficient opt-out notice under the TCPA.
Defendant ZocDoc is a Delaware corporation whose principal place of business is in New York City, within the Southern District of New York. According to a declaration from ZocDoc's Chief Operating Officer, ZocDoc compiled its fax list from various sources and generally contacted entities to request or confirm fax numbers before sending out faxes. It used another business, Intellicomm, as its fax broadcaster. ( See Kharraz Decl., ¶¶ 8-9.) Intellicomm's principal place of business is apparently in King of Prussia, Pennsylvania. ( Id. ) As such, it is within the subpoena power of the Southern District of New York.
ZocDoc argues for transfer to the Southern District of New York under 28 U.S.C. § 1404(a), which provides that "for the convenience of the 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." Although the grant or denial of a request to transfer is within the trial court's sound discretion, Hubbard v. White, 755 F.2d 692, 694 (8th Cir. 1985), the court also should keep in mind that the moving party "bears the burden of proving a transfer is warranted." Trident Steel Corp. v. Oxbow Steel Int'l, LLC, No. 4:09CV1332, 2009 WL 3242045, at *4 (E.D. Mo. Oct. 5, 2009). "Merely shifting the inconvenience from one side to the other... is not a permissible justification for a change of venue." Terra Int'l, Inc. v. Miss. Chem. Corp., 119 F.3d 688, 696-97 (8th Cir. 1997).
When determining whether to transfer a case under Section § 1404(a), a court must consider (1) the convenience of the parties; (2) the convenience of the witnesses; and (3) the interests of justice. Id. at 691.
But a court is not limited to these considerations. Instead, a court takes into account "all relevant factors" and performs a "case-by-case evaluation of the particular circumstances at hand." Id. Indeed, in evaluating the convenience factors, courts typically consider not only the convenience of parties and witness ("including the willingness of witnesses to appear, the ability to subpoena witnesses, and the adequacy of deposition testimony") but also the accessibility of records and documents, the location of the alleged illegal conduct, and the substantive law to be applied. Id. at 696. However, the convenience of witnesses remains the "primary, if not most important" of the convenience factors. May Dep't Stores Co. v. Wilansky, 900 F.Supp. 1154, 1165 (E.D. Mo. 1995).
In addition, while evaluating the interest of justice, courts consider judicial economy, the plaintiff's choice of forum, the comparative costs to the parties of litigating in each forum, each party's ability to enforce a judgment, obstacles to a fair trial, conflict of law issues, and the advantages of having a local court determine questions of local law. Terra Int'l, 119 F.3d at 696.
Arguing for transfer, defendant ZocDoc points out that several potential witnesses, including its employees and former employees, are located in the Southern District of New York or within its subpoena power; its material records and documents are at its principal place of business in New York City; the conduct complained of occurred in New York; any resulting judgment will ultimately be enforceable in New York where ZocDoc is located; and average time to disposition is slightly quicker in the Southern District of New York. Although it recognizes that a plaintiff's choice of forum is entitled to deference, ZocDoc urges less deference when a plaintiff chooses to represent a nationwide class.
Geismann responds that ZocDoc simply seeks to shift inconvenience from itself to Geismann, and as such, that it has not made the "clear showing" required for transfer. See Gen. Comm. of Adjustment v. Burlington N. R.R., 895 F.Supp. 249, 252 (E.D. Mo. 1995). It argues that its conversion claim is based on Missouri law; its own employees are in Missouri; it received the faxes in Missouri; and ZocDoc specifically intended its faxes to increase its business presence in St. Louis. It points out that any records located in New York are easily transportable. Further, it contends that ZocDoc has not explained the materiality of ...