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Moore v. Compass Group USA, Inc.

United States District Court, E.D. Missouri, Eastern Division

September 26, 2019

GEORGE MOORE and VIRGINIA CARTER, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
COMPASS GROUP USA, INC., Defendant.

          MEMORANDUM AND ORDER

          RONNIE L. WHITE, UNITED STATES DISTRICT JUDGE

         This 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)

         BACKGROUND[1]

         This is 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allege that they purchased items from Compass' vending machines, using cards rather than cash, and were charged or had withdrawn from their accounts more money than the prices displayed on the machines.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that Compass did not have a sign or other indication on the vending machines that a greater amount would be charged or withdrawn if a customer used a credit, debit, or prepaid card.[2] (Id. at ¶¶16, 18, & 20)

         Plaintiffs 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 follows:

• 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 subclass;
• 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.

         Compass 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.[3] 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.

         DISCUSSION

         I. Motion to transfer

         Compass 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.

         The 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).

         Courts take into consideration several factors when weighing convenience and the interests of justice under § 1404(a). To evaluate the balance of convenience, district courts consider:

(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 substantive law.

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. 1995)).

         Under 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.

         Compass 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 this case.

         Plaintiffs 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 North Carolina.

         While 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.[4] 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.

         Compass's 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 ...


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