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Sitzer v. The National Association of Realtors

United States District Court, W.D. Missouri, Western Division

August 19, 2019

JOSHUA SITZER AND AMY WINGER, SCOTT AND RHONDA BURNETT, and RYAN HENDRICKSON, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
THE NATIONAL ASSOCIATION OF REALTORS, REALOGY HOLDINGS CORP., HOMESERVICES OF AMERICA, INC., BHH AFFILIATES, LLC, HSF AFFILIATES, LLC, THE LONG & FOSTER COMPANIES, INC., RE/MAX LLC, and KELLER WILLIAMS REALTY, INC. Defendants.

          ORDER

          STEPHEN R. BOUGH UNITED STATES DISTRICT JUDGE

         Before the Court is a Motion of the National Association of Realtors to Transfer this Case to the Northern District of Illinois (Doc. #58). For the following reasons the motion is DENIED.

         I. Background

         Plaintiffs “bring this action on behalf of themselves and on behalf of the plaintiff classes . . . consisting of all persons and entities who listed properties on one of four Multiple Listing Services[1] (the “Subject MLS”) and paid a broker commission from at least April 29, 2015 until the Present (the “Subject MLS Class Period).” (Doc. #38, p. 1). Defendants are the National Association of Realtors (“NAR”) “and the four largest national real estate broker franchisors[, ] . . . each of which has a significant presence in the Kansas City metropolitan area.” (Doc. #38, p. 1). Plaintiffs allege that “[t]ogether, Defendants have conspired to require home sellers to pay the broker representing the buyer of their homes, and to pay an inflated amount, in violation of federal antitrust law, the Missouri Merchandising Practices Act (“MMPA”)[2], and the Missouri Antitrust Law[.]” (Doc. #38, p. 1). Plaintiffs allege that “[t]he cornerstone of Defendants' conspiracy is NAR's adoption and implementation of a rule that requires all seller's brokers to make a blanket, unilateral and effectively non-negotiable offer of buyer broker compensation (the “Adversary Commission Rule”) when listing a property on a [MLS].” (Doc. #38, p. 3). Plaintiffs allege “[t]he MLSs at issue in this case are controlled by local NAR associations, and access to such MLSs is conditioned on brokers agreeing to follow all mandatory rules set forth in NAR's Handbook on Multiple Listing Policy.” (Doc. #38, p. 3). NAR moves the Court to transfer this case to the Northern District of Illinois, arguing “this Court lacks personal jurisdiction over NAR under either the Missouri long-arm statute, Mo. Rev. Stat. § 506.500.1, [or] under § 12 of the Clayton Act[.]” (Doc. #58, p. 1).

         II. Legal Standards

         A. Transfer to Cure Lack of Personal Jurisdiction

         When a “court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court . . . in which the action or appeal could have been brought at the time it was filed[.]” 28 U.S.C. § 1631.

         B. Transfer to Cure Improper Venue under the Clayton Act

         “The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.” 28 U.S.C. § 1406(a). “[W]hen reviewing a motion to transfer, a court may consider evidence outside of the pleadings but must draw all reasonable inferences and resolve factual conflicts in favor of the non-moving party.” Thompson v. Titus Transp., LP, 2012 WL 5933075, at *3 (D. Kan. Nov. 27, 2012) (internal citation and quotation marks omitted).

         III. Discussion

         A. Personal Jurisdiction Under the Missouri Long-Arm Statute

         NAR argues this Court lacks personal jurisdiction over NAR under the Missouri long-arm statute. Plaintiffs do not rely on the Missouri long-arm statute to argue this Court's personal jurisdiction over Defendants. Plaintiffs rely solely on the Clayton Act's personal jurisdiction and venue rules. Accordingly, the Court will not entertain NAR's argument relating to personal jurisdiction under Missouri's long-arm statute, and NAR's motion to transfer pursuant to § 1631 is denied.

         B. Personal Jurisdiction Under the Clayton Act

         Section 12 of the Clayton Act provides special venue and service of process rules for private antitrust actions brought against ...


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