Roe v. Intellicorp Records, Inc

Filing 34

ORDER by Judge Yvonne Gonzalez Rogers finding as moot 13 Motion to Dismiss; granting 14 Motion to Transfer Case to US District Court for the Northern District of Ohio. (fs, COURT STAFF) (Filed on 8/27/2012)

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UNITED STATES DI
D
ISTRICT COU
URT

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NORTHER DISTRICT OF CALIFO
RN
T
ORNIA

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5
6
7

JAN ROE, indi
NE
ividually an on behalf of all
nd
f
othe similarly situated,
ers
y

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Plaintiff,

C
Case No.: 12
2-CV-02567 YGR
O RDER GRAN
NTING MOTION OF DEFE
ENDANT
T O TRANSFER; AND DENY
R
YING AS MO
OOT
M OTION TO DISMISS

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vs.

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Northern District of California

United States District Court

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INTE
ELLICORP RECORDS, INC. ,
N

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Defe
endant.

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Plaintiff Jane Roe br
f
rings this putative class a
action again Defendan Intellicorp Records,
nst
nt

15

Inc. (“Intellicorp “), on beha of all persons who we the subje of a nega
p
alf
ere
ect
ative consum report
mer

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prep
pared by Inte
ellicorp for a prospective employer. Plaintiff bri
e
ings one cau of action under the
use
n

17

Fair Credit Repo
r
orting Act (“
“FCRA”), 15 U.S.C. §§ 1681 et seq. alleging th Intellicorp (1) failed
5
.,
hat
p

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to notify consum when it disclosed adverse publi record inf
mers
t
ic
formation; an (2) failed to maintain
nd
d

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quate proced
dures to insu that such information would be complete, up-to-date, and accurate.
ure
n
d
adeq
Defenda Intellicorp Records, Inc. has filed a Motion to Transfer th Action to the United
ant
p
I
d
o
his
o

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Stat District Court for the Northern District of Oh Pursuant to 28 U.S.C § 1404.
tes
C
hio
C.
Having carefully con
c
nsidered the papers and evidence sub
bmitted, and the pleadin in this
d
ngs

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actio for the re
on,
easons set fo below, th Court her
orth
he
reby GRANT the Motio to Transfe 1
TS
on
er.

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I.

BACKG
GROUND

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Intellicorp is a Delaw corpora
ware
ation, headqu
quartered in B
Beachwood, Ohio, that o
offers

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back
kground scre
eening servic
ces. Compla ¶¶ 5, 18 . Its custom include employers w wish to
aint
mers
who

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Pur
rsuant to Fede Rule of Civil Procedu 78(b) and Civil Local R 7-1(b), th Court finds that this
eral
C
ure
Rule
he
moti is appropr
ion
riate for decis
sion without oral argument
o
t.

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investigate the criminal record history of job applicants. Id. ¶ 18. Intellicorp offers an online

2

database that produces a multi-state report of the criminal records associated with a particular

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individual, as well as a report that collects criminal records held at the county level. Id. ¶ 39.
Plaintiff, a resident of Los Angeles County, was arrested in Los Angeles County on March

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1, 2005 and charged with one count of robbery and one count of petty theft with a prior conviction.

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Id. ¶ 27. The robbery charge was dismissed, and in May 2005, she pled nolo contendere to the

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petty theft charge, and was sentenced to three years of probation by the Los Angeles County

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Superior Court. Id. ¶¶ 28, 30.
In March 2011, Plaintiff applied for a job as a caretaker with 5Life Ventures d/b/a

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Northern District of California

ComForCare Senior Services (“ComForCare”). Id. ¶ 29. ComForCare obtained Plaintiff’s

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United States District Court

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background report from Intellicorp. Id. The report contained “adverse information about

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Plaintiff’s criminal record.” Id. ComForCare did not provide Plaintiff with a copy of her

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background report, and Intellicorp did not notify Plaintiff that it had supplied ComForCare with the

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report. Id. Plaintiff was not hired. Id.
In June 2011, Plaintiff obtained an “expungement order” from the Los Angeles County

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Superior Court, pursuant to Penal Code § 1203.4. Id. ¶ 30. Pursuant to the expungement order, her

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2005 conviction for petty theft was dismissed; her prior plea of nolo contendere was withdrawn; a

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plea of not guilty was entered; the charge against her was dismissed; and Plaintiff was “released

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from all penalties and disabilities resulting from the offense of which . . . she has been convicted.”

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Id.

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In October 2011, Plaintiff applied for a job as a caretaker with Smart Choice Investments

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Inc. d/b/a BrightStar (“BrightStar”). Id. ¶ 31. During her interview, BrightStar procured Plaintiff’s

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background report using Intellicorp’s online system. Id. ¶ 33. Plaintiff alleges that the criminal

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background report failed to account for the fact that her 2005 criminal conviction for theft was

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expunged in 2011 because the background report indicated that charges were filed against Plaintiff

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on March 16, 2005, but failed to disclose the final disposition of those charges. Id. ¶ 34. Based on

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the adverse information reported by Intellicorp, BrightStar refused to hire her. Id. ¶ 35.

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2

The Com
mplaint alleg that Intel
ges
llicorp has vi
iolated its ob
bligations un
nder the FCR by (1)
RA

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faili to notify consumers contemporan
ing
neously of th fact that i is disclosin adverse p
he
it
ng
public record
d

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info
ormation; (2) failing to maintain stric procedures designed to insure that such inform
)
m
ct
s
o
t
mation is

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com
mplete and up
p-to-date; an (3) failing to utilize re
nd
g
easonable pr
rocedures to assure maxi
imum

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poss
sible accurac of the adv
cy
verse inform
mation it repo
orts. Plaintif seeks to ce
ff
ertify a natio
onwide class

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of “[a]ll natural persons with the United States wh were the s
hin
ho
subject of a consumer re
eport”

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pared by Inte
ellicorp for a prospective employer t
e
that containe “any nega
ed
ative public r
record of
prep

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crim
minal arrest, charge, or co
onviction, du
uring the fiv years prec
ve
ceding the fil
ling of this a
action until

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fina resolution of this action Id. ¶ 60.
al
n.”
.
Plaintiff filed this ac
f
ction in the Alameda Cou
A
unty Superio Court on A
or
April 16, 2012.

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Northern District of California

United States District Court

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Defe
fendant remo
oved the action to this Co on May 18, 2012, p
ourt
y
pursuant to th Class Act
he
tion Fairness
s

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Act. Defendant has filed a motion to tra
.
t
m
ansfer to the Northern D
District of Oh where it i
hio
is

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head
dquartered.

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II.

LEGAL STANDAR
L
RD
“For the convenience of parties and witnesse in the int
a
es,
terest of justi a distric court may
ice,
ct

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tran
nsfer any civi matter to any other dis
il
a
strict or divis
sion where i might have been broug
it
e
ght.” 28

17

U.S.C. § 1404(a The purp
a).
pose of § 140
04(a) is to “p
prevent the w
waste of time energy, an money
e,
nd

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and to protect lit
tigants, witn
nesses and th public aga
he
ainst unnece
essary inconv
venience and expense.”
d

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n
arrack, 376 U.S. 612, 61 (1964) (in
16
nternal citati
ions and quo
otation omitt
ted). The
Van Dusen v. Ba

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threshold inquir is whether the action might have b
ry
r
m
been brought in the trans
ht
sferee distric See
ct.

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Hoff
ffman v Blask 363 U.S. 335, 343-44 (1960); Go
ki,
4
oodyear Tire & Rubber C v. McDo
e
Co.
onnell

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Dou
uglas Corp., 820 F. Supp 503, 506 (C.D. Cal. 19
p.
992). If the action could have been b
d
brought in

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the potential tran
p
nsferee distr then the Court perfo
rict,
orms an indiv
vidualized, c
case-by-case assessment
e
t

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of th convenien and fairn factors to determine whether the case shoul be transfer
he
nce
ness
t
e
ld
rred. See

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Stew Org. Inc v. Ricoh Corp., 487 U.S. 22, 29 (1
wart
c.
C
U
1988); Sparl
ling v. Hoffm Constr. Co., 864
man

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F.2d 635, 639 (9 Cir.1988 Roberts v. C.R. Engla
d
9th
8);
and, Inc., 827 F. Supp. 2 1078, 1086 (N.D. Cal.
7
2d

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2011).

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III.

DISCUS
SSION
Plaintiff does not dis
f
spute that the Northern D
e
District of O
Ohio is an app
propriate for
rum for this

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actio Intellico is headqu
on.
orp
uartered in th Northern District of O
he
Ohio, that co has subject matter
ourt

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juris
sdiction over the claims, personal jur
r
,
risdiction ov the defen
ver
ndant, and ve
enue would be proper

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ther Accordin
re.
ngly, the Cou will focus on the con
urt
nvenience of the parties a the inter of
f
and
rest

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justi
ice.

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t
he
y
re:
plaintiff’s choice of forum (2) the
m;
Among the factors th court may consider ar (1) the p

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conv
venience of the parties and witnesses; (3) the eas of access to sources o proof; (4) the
a
se
of

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resp
pective partie contacts with the foru and the c
es’
um
contacts rela
ating to the p
plaintiff’s cau of action
use
n

Northern District of California

in th chosen forum; (5) the familiarity of the forum with the ap
he
e
m
pplicable law and (6) the relative
w;
e

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United States District Court

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cour congestion and time to trial in each forum. Se Jones v. G
rt
n
o
ee
GNC Franch
hising, Inc., 2 F.3d
211

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495, 498-99 (9th Cir. 2000); see also Ro
h
oberts, supra 827 F. Sup 2d at 108
a,
pp.
86-87. After

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cons
sideration of these factor the Court finds that tr
f
rs,
t
ransfer to the Northern D
District of O
Ohio is

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warr
ranted.

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1.
1

Plain
ntiff’s choice of forum

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Normally a plaintiff’s ch
N
p
hoice of forum is entitled to consider
m
d
rable deferen
nce. See Lou
u

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v. Belzberg, 834 F.2d 730, 739 (9th Cir. 1987). Wh as here, the plaintiff does not res in the
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7
.
hen,
f
side

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foru none of the alleged operative fac with resp to the plaintiff’s clai occurred in this
um,
t
o
cts
pect
ims
d

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distr and the plaintiff acts as a repres
rict,
sentative of a nationwide rather than a statewide class action
e
n
n,

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that choice “is entitled to on minimal consideratio
e
nly
on.” Id. Def
fendant has o
offered evid
dence that

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appr
roximately 97 percent of the putative class of pe
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f
e
ersons who w the subj of a neg
were
ject
gative

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cons
sumer report prepared by Intellicorp for a prospe
t
y
p
ective emplo
oyer reside o
outside of Ca
alifornia.

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See Carpenter Dec. ¶ 10. Th not only does Plaint not resid in this for
D
hus,
y
tiff
de
rum and none of the

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oper
rcent of puta
rative facts with respect to her claim occurred i this distric but 97 per
w
ms
in
ct,
ative class

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mem
mbers in this action may not be Calif
s
fornia reside
ents.

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Based on the foregoi analysis, the Court f
n
ing
,
finds that Pla
aintiff’s choi of forum carries
ice
m
minimal weight in this analy
ysis.

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4

Conv
venience of th parties
he

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2.
2

2

As to the con
A
nvenience of the parties, the evidenc submitted by Intellicorp does
f
ce

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esta
ablish that the Northern District of Ohio is the mo convenie forum. I
D
ore
ent
Intellicorp is
s

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head
dquartered in Beachwoo Ohio, wh is in the Northern District of Oh and all b two of its
n
od,
hich
hio,
but
s

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emp
ployees work and reside there. Altho
k
ough Intellic
corp does no identify its key witness or
ot
s
ses

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pres a genera
sent
alized statem of the ex
ment
xpected testi
imony of its witnesses, i notes that all
it

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emp
ployees who could testify regarding Intellicorp’s practices an procedure work and reside in the
y
I
s
nd
es
e

8

Nor
rthern Distric of Ohio. On the other hand, Plain
ct
O
r
ntiff, who liv in Los An
ves
ngeles Coun lives
nty,

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clos to this dis
ser
strict, and wo
ould be mor inconvenie
re
enced by a tr
ransfer to Oh than if t case
hio,
the

Northern District of California

rem
mained in this district. Ho
s
owever, as noted above, Plaintiff file this lawsu as a natio
n
ed
uit
onwide class

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United States District Court

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actio and appro
on
oximately 97 percent of the putative class memb in this a
7
bers
action may not be

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Cali
ifornia reside
ents.

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On balan this fact weighs in favor of tra
nce,
tor
n
ansfer.

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3.
3

Ease of access to sources of p
proof

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As to ease of access to so
A
f
ources of pro this fact also favo transfer to the
oof,
tor
ors
o

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Nor
rthern Distric of Ohio. Much of the evidence lik
ct
M
kely to be re
elevant in thi case–docu
is
uments

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refle
ecting Intelli
icorp’s corpo
orate policie and proced
es
dures, as we as its prim
ell
mary comput servers–is
ter
s

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loca at Intelli
ated
icorp’s head
dquarters in Ohio. See C
O
Carpenter Dec. at ¶ 9; see also Italian Colors
e
n

19

Rest v. Am. Exp
t.
press Co., Ca No. C-03
ase
3-3719 SI, 2
2003 WL 226
682482, at * (N.D. Cal Nov. 10,
*5
l.

20

2003) (“Documents pertaini to defend
ing
dants’ busine practices are most lik to be fo
ess
s
kely
ound at their

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prin
ncipal place of business.” While technological developmen have redu
o
”).
nts
uced the bur
rden of

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retri
ieving and tr
ransporting documents, and diminish the weig of this fa
d
a
hed
ght
actor in the tr
ransfer

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dete
ermination, this factor no
t
onetheless weighs in fav of transfe See Paten Mgmt. Fo
w
vor
er.
nt
ound., LLC v.
v

24

Ana
alog Devices, Inc., Case No. C-10-36 SBA, 20 WL 197831, at *4 (N Cal. Jan 20, 2011)
,
N
630
011
N.D.
n.

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(“th possibility that docum
he
y
ments can be produced ele
p
ectronically does not alter the conclu
usion that

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the cost of litiga
c
ation will lik be less if the case we venued i the forum where the e
kely
in
m
evidence is
ere

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loca
ated.”). This factor weig in favor of transfer.
ghs

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5

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4.
4

Conta with the forum
acts
e

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This case inv
T
volves a pote
entially large class action award agai a compa
e
n
inst
any

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head
dquartered in the Northe District of Ohio with no offices o
n
ern
o
h
outside of the Northern D
District of

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Ohio CompuSe
o.
erve, Inc. v. Patterson, 89 F.3d 1257 1268 (6th Cir. 1996) (“Ohio has a strong
P
8
7,

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inter in resolv
rest
ving a disput involving an Ohio com
te
mpany”). N
None of the e
events Plaintiff

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com
mplains of oc
ccurred in thi district. Decker Coal Co. v. Comm
is
D
monwealth E
Edison Co., 805 F.2d

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834, 843 (9th Ci 1986) (ad
ir.
dditional con
nsiderations i
include the “
“local intere in having localized
est

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cont
troversies de
ecided at hom and “the unfairness of burdenin citizens in an unrelate forum
me”
e
ng
n
ed

9

with jury duty.” (quoting Piper Aircraf Co. v. Reyn 454 U.S. 235, 241 n.6 (1981)). Indeed, it
h
”)
P
ft
no,

Northern District of California

appe that Pla
ears
aintiff’s only connection to this forum is that her trial counse is located i this
m
el
in

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United States District Court

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distr
rict. Accord
dingly, this factor weighs in favor of transfer.
f
s
f

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5.
5

Fami
iliarity with the law
t

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With respect to familiarit with Plain
W
ty
ntiff’s claims, because th case invo
his
olves federal
l

14

law, “either foru is equally capable of hearing and deciding th
,
um
y
f
d
hose question
ns.” DealTime.com Ltd.

15

v. McNulty, 123 F. Supp. 2d 750, 757 (S.D.N.Y. 20
M
d.
000). On bal
lance, this fa
actor is neutr with
ral

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resp to transf to the Northern Distri of Ohio.
pect
fer
ict

17

6.
6

18

Courts also consider “the administrat
C
c
e
tive difficult flowing from court c
ties
congestion.”
”

19

See Decker Coa supra, 805 F.2d at 843 Defendan has submi
al,
5
3.
nt
itted statistic data relev to court
cal
vant
t

20

cong
gestion in bo districts. Dkt. No. 14 Exs. A- The data however, d
oth
4-2,
-B.
a,
does not clea indicate
arly
e

21

that one forum is more cong
i
gested than the other. W
While this dis
strict has a hi
igher volum of filings
me

22

edian time to trial, in 201 judges in the Northern District of Ohio had m
o
11
n
f
more pending
g
and a longer me

23

es
e,
f
utral with res
spect to trans
sfer.
case per judge. On balance then, this factor is neu

24

IV.

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Court congestion
n

CONCL
LUSION
The Cou finds that a transfer to the Norther District o Ohio woul serve the convenience
urt
o
rn
of
ld
e

26

of th parties an witnesses, and would promote the interests of justice. On Plaintiff’s choice of
he
nd
,
e
f
nly

27

foru weighs ag
um
gainst transf
fer. As noted Plaintiff’s choice of fo
d,
s
forum merits only minim
mal

28

cons
sideration in this analysi The conv
n
is.
venience of t witnesse the ease o access to s
the
es,
of
sources of

6

1

proof, and the interests of the respective forums all weigh in favor of transfer. Weighing

2

considerably in favor of transfer is that this lawsuit has no connection to this district.

3

The Motion to Transfer is GRANTED.

4

The Court ORDERS this action be TRANSFERRED to the United States District Court for the

5
6

Northern District of Ohio.
The pending Motion to Dismiss and Motion to Strike Class Claims, Dkt. No. 13, is DENIED

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AS MOOT in light of this Order. Defendant may re-file its motion after transfer to the Northern

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District of Ohio.

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10

This order terminates Docket Nos. 13 and 14.
IT IS SO ORDERED.

Northern District of California

United States District Court

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13

Date:August 27, 2012

_______________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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