United States District Court, E.D. Missouri, Eastern Division
GEORGE MOORE and VIRGINIA CARTER, on behalf of themselves and all others similarly situated, Plaintiffs,
COMPASS GROUP USA, INC., Defendant.
MEMORANDUM AND ORDER
L. WHITE, UNITED STATES DISTRICT JUDGE
matter is before the Court on the Motion to Dismiss (ECF No.
25) and Motion to Transfer Venue (ECF No. 27) filed by
Defendant Compass Group USA, Inc. ("Compass").
Plaintiffs George Moore and Virginia Carter, on behalf of
themselves and all others similarly situated, oppose both
motions. Both motions are fully briefed and ready for
disposition. Additionally, Compass has filed a Motion for
Entry of a Protective Order with an attached proposed order.
(ECF Nos. 37 & 37-1) Plaintiffs filed a response in
opposition and counter motion for the Court to enter their
alternative proposed order. (ECF Nos. 38 & 38-1)
a putative class action under Missouri and Illinois law.
Plaintiffs George Moore and Virginia Carter
("Plaintiffs") allege that they purchased items
from Compass' vending machines, using cards rather than
cash, and were charged or had withdrawn from their accounts
more money than the prices displayed on the machines.
(Pls.' Am. Class Action Compl. ¶¶ 15, 17, 19,
22, 23, & 25) Specifically, they allege they were charged
and additional ten cents if they did not pay with cash.
(Id. at ¶ 26) Plaintiffs further allege that
Compass did not have a sign or other indication on the
vending machines that a greater amount would be charged or
withdrawn if a customer used a credit, debit, or prepaid
card. (Id. at ¶¶16, 18, &
filed this putative class action asserting nine causes of
action on behalf of themselves, a nationwide class, and
separate Missouri and Illinois subclasses. (Id. at
¶ 30-32) The counts and applicable plaintiffs are as
• Count I alleges breach of contract on behalf of
Plaintiffs and the nationwide class;
• Count II alleges violations of the Missouri
Merchandising Practices Act (MMPA), Mo. Rev. Stat. §
407.010 et seq., by means of deception on behalf of
Moore and the Missouri subclass;
• Count III alleges violations of the MMPA by means of
unfair practices on behalf of Moore and the Missouri
• Count IV alleges unjust enrichment under Missouri law
on behalf of Moore and the Missouri subclass;
• Count V alleges money had and received under Missouri
law on behalf of Moore and the Missouri subclass;
• Count VI alleges violations of the Illinois Consumer
Fraud Act (ICFA), 815 ILCS 505/1 et seq., on behalf
of Carter and the Illinois subclass;
• Count VII alleges conversion under Illinois law on
behalf of Carter and the Illinois subclass;
• Count VIII alleges unjust enrichment under Illinois
law on behalf of Carter and the Illinois subclass; and
• Count IX alleges money had and received under Illinois
law on behalf of Carter and the Illinois subclass.
has moved to transfer venue of this case to the Western
District of North Carolina, the district in which
Compass's principal place of business is located. Compass
has also moved to dismiss the nationwide class claims in
Plaintiffs Amended Class Action Complaint as well as Counts
IV-IX. Plaintiffs are opposed to both motions. In
addition, Compass has moved for the Court to issue a proposed
protective order. Plaintiffs are opposed to that motion as
well and have submitted their own proposed protective order
for the Court's consideration.
Motion to transfer
argues that the interests of justice and the convenience of
the witnesses warrant transfer to the Western District of
North Carolina. According to Compass, the Eastern District of
Missouri has no appreciable interest in the case and
Compass's principal place of business, as well as
relevant documents and anticipated witnesses, are located in
the Western District of North Carolina. Plaintiffs assert
that Defendants are unable to meet the requirements of the
statute such that the motion to transfer should be denied.
statute governing change of venue provides that, "[f]or
the convenience of 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." 28 U.S.C. § 1404(a). Courts use §
1404(a) to transfer cases "solely to promote litigation
convenience and efficiency." Eggleton v.
Plasser & Theurer Export von Bahnbaumaschinen
Gesellschaft, MBH, 495 F.3d 582, 589 n.3 (8th Cir.
2007). When determining whether to transfer a case pursuant
to § 1404(a), courts must consider: "1) the
convenience of the parties; 2) the convenience of the
witnesses; and 3) the interests of justice." Dube v.
Wyeth LLC, 943 F.Supp.2d 1004, 1007 (E.D. Mo. 2013)
(citing Terra Int'l, Inc. v. Miss. Chem. Corp.,
119 F.3d 688, 691 (8th Cir. 1997)). Whether to grant or deny
a request to transfer a case under § 1404(a) is within
the trial court's sound discretion. Hubbard v.
White, 755 F.2d 692, 694 (8th Cir. 1985). "[C]ourts
are not limited to just these enumerated factors, and they
have recognized the importance of a case-by-case evaluation
of the particular circumstances presented and of all relevant
case-specific factors." Dube, 943 F.Supp.2d at
1007 (citing In re Apple, Inc., 602 F.3d 909, 912
(8th Cir. 2010)). However, courts give great deference to a
plaintiffs choice of forum, and a party requesting transfer
under § 1404(a) bears the burden of demonstrating that
the transfer is justified. Anheuser-Busch, Inc. v. All
Sports Arena Amusement, Inc., 244 F.Supp.2d 1015, 1022
(E.D. Mo. 2002) (citation omitted). "This
'general' practice of according deference, however,
is based on an assumption that the plaintiffs choice will be
a convenient one." In re Apple, 602
F.3d at 913 (citation omitted).
take into consideration several factors when weighing
convenience and the interests of justice under §
1404(a). To evaluate the balance of convenience, district
(1) the convenience of the parties, (2) the convenience of
the witnesses- including the willingness of witnesses to
appear, the ability to subpoena witnesses, and the adequacy
of deposition testimony, (3) the accessibility to records and
documents, (4) the location where the conduct complained of
occurred, and (5) the applicability of each forum state's
Burkemper v. Dedert Corp., No. 4:11CV1281 JCH, 2011
WL 5330645, at *2 (E.D. Mo. Nov. 7, 2011) (citing Terra
Int'l, 119 F.3d at 696). In evaluating these
factors, the convenience of witnesses is the most important.
The convenience of the witnesses is the "primary, if not
most important" of the convenience factors.
Anheuser-Busch, Inc. v. City Merck, 176 F.Supp.2d
951, 959 (E.D. Mo. 2001) (quoting May Dep 't Stores
Co. v. Wilansky, 900 F.Supp. 1154, 1165 (E.D. Mo.
the interest of justice category, the courts also consider:
(1) judicial economy, (2) the plaintiffs choice of forum, (3)
the comparative costs to the parties of litigating in each
forum, (4) each party's ability to enforce a judgment,
(5) obstacles to a fair trial, (6) conflict of law issues,
and (7) the advantages of having a local court determine
questions of local law.
Burkemper, 2011 WL 5330645, at *2 (citing Terra
Int'l, 119 F.3d at 696). Accordingly, the Court will
analyze the pertinent factors in determining Compass's
motion to transfer.
argues that the § 1404(a) factors heavily favor transfer
because the Western District of North Carolina is a more
convenient venue for the parties. Compass argues a plaintiffs
choice of forum is given less deference in class actions.
See Silverberg v. H&R Block, Inc., No.
4:06CV00519 ERW, 2006 WL 1314005, at *2 n.6 (E.D. Mo. May 12,
2006) (noting that "many courts give a plaintiffs choice
of forum less deference in the context of a class action
suit"). Compass claims the only connection this case has
to Missouri is that one of the named plaintiffs, Moore, is a
citizen of Missouri and both named plaintiffs "happen to
have made a small number of purchases from a Compass vending
machine in St. Louis." (ECF No. 28, at 2) North
Carolina, on the other hand, is the location of Compass's
principal place of business and, thus, the location of
crucial witnesses and evidence. In the context of this
punitive nationwide class action, Plaintiffs' claims
relate to purchases they and class members made at Compass
vending machines across the country. Moreover, Compass
maintains its headquarters in Charlotte, North Carolina, and
regional and local offices in 30 states. (Decl. of Amanda
Heierman ¶ 2, ECF No. 28-1) Compass argues that fraud
claims - especially those that include claims on behalf of a
putative class - "naturally focus on the statements and
conduct of the party who allegedly deceived the putative
class members, and thus require an examination of the
defendant's employees, documents, systems and similar
evidence." (Id. at 7) See Vanguard Mun.
Bond Fund, Inc. v. Thomson Pub. Corp., 974 F.Supp. 1159,
1162 (N.D. Ill. 1997) ("[I]n a case of this
nature-particularly with negligence and fraud alleged-the
bulk of the witnesses will come from the [defendant's]
offices ... ."). Accordingly, Compass argues its actions
and decisions regarding vending machine prices took place
largely, if not entirely, outside of Missouri and the Western
District of North Carolina is a more convenient forum for
contend that the factors the Court must consider weigh
against transfer in this case. The Court agrees. One of the
cases from this district Compass cites for its argument that
Plaintiffs' choice of forum is entitled to little
deference concerned a class action where the class
representative did not reside in the forum district. See
Silverberg, 2006 WL 1314005, at *2 (granting a motion to
transfer venue from the Eastern District of Missouri to the
Western District of Missouri because, in part, "there is
no evidence that the class representatives, or even a
majority of the class, reside in the Eastern District of
Missouri"). Here, Moore lives in St. Louis, both Moore
and Carter work in St. Louis, and the particular Compass
vending machine from which they allegedly made purchases is
located in St. Louis. Accordingly, this district is clearly
more convenient for Plaintiffs than the Western District of
Compass is correct that the convenience of the
witnesses is the "primary, if not most
important" of the convenience factors, see
Anheuser-Busch, Inc., 176 F.Supp.2d at 959, Plaintiffs
argue it is focused on the wrong witnesses. The witnesses
Compass claims would be inconvenienced by this case remaining
in this district are all its employees. Other courts in
this circuit, however, have made clear that "[t]he focus
is on non-party witnesses, since 'it is
generally assumed that witnesses within the control of the
party calling them, such as employees, will appear
voluntarily in a foreign forum.'" Klatte v.
Buckman, Buckman & Reid, Inc., 995 F.Supp.2d 951,
955 (D. Minn. 2014) (emphasis added) (quoting Austin v.
Nestle USA, Inc., 677 F.Supp.2d 1134, 1138 (D. Minn.
2009)). Compass's argument that the Court should weigh
this factor in favor of dismissal is unpersuasive.
argument regarding the accessibility to evidence is likewise
unpersuasive. Although Compass's headquarters are located
in Charlotte, North Carolina, there is no dispute that the
records which will be needed in this action are either stored
electronically or capable of conversion by electronic means.
"The parties can exchange discovery through electronic
means, thereby eliminating any inconvenience which may have,
in a previous time, been a significant factor in the