Lopez v. Beavex Inc et al

Filing 34

ORDER GRANTING 28 MOTION to Change Venue. Signed by Judge JEFFREY S. WHITE on 5/20/15. (jjoS, COURT STAFF) (Filed on 5/20/2015)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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LEOBARDO LOPEZ, individually and on
behalf of all others similarly situated,

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No. C 15-00550 JSW

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v.
For the Northern District of California

United States District Court

Plaintiff,
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ORDER GRANTING MOTION TO
TRANSFER VENUE

BEAVEX, INC., et al.,
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Defendants.
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Now before the Court is the motion filed by defendants BeavEx Incorporated

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(“BeavEx”) and LFL Enterprises, LLC (sued as Lowers Risk Group, LLC) doing business as

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Proforma Screening Solutions (“Proforma”) (collectively referred to as “Defendants”) to

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transfer venue to the District Court for the Northern District of Georgia pursuant to 28 U.S.C. §

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1404. The Court has considered the parties’ papers, relevant legal authority, and the record in

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this case. It finds the motion suitable for disposition without oral argument, and therefore

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VACATES the hearing scheduled for May 22, 2015. See Civil L.R. 7-1(b). For the reasons

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that follow, the Court hereby grants the motion to transfer venue.1

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BACKGROUND
Plaintiff Leobardo Lopez filed this purported class action against Defendants under the

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Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. (“FCRA”). Plaintiff alleges that BeavEx

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violated the FCRA by obtaining consumer reports for employment purposes as part of the

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The Court GRANTS Defendants’ request for judicial notice (“RJN”). See Fed R.
Evid. 201(b).
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application process for new employees, without providing the required disclosures and signed

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authorizations. (Compl., ¶ 6.) Plaintiff alleges that Proforma is a consumer reporting agency

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that provides consumer reports to BeavEx and other consumer report users for purposes of

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evaluating applicants for employment. (Id., ¶ 7.) Plaintiff applied for a position with BeavEx

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on September 11, 2011 in Union City, California. (Id., ¶ 5.) Plaintiff seeks statutory and

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punitive damages on behalf of the purported class. (Id., ¶ 35.)

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BeavEx is headquartered in Atlanta Georgia. (Declaration of Patricia Elkon (“Elkon

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Decl.”), ¶ 2.) BeavEx has approximately 90 locations in 42 states and approximately 600

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employees, 15 percent of which are located in California. (Id.) BeavEx does not quantify how
many of its California employees are located within the Northern District of California.

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For the Northern District of California

United States District Court

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Proforma’s principal place of buiness is Purcellville, Virginia. (Declaration of Dale Jordan

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(“Jordan Decl.”), ¶ 1.) Approximately one-third of Proforma’s clients for employment

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background screening services are located in Georgia and the states in the mid-south Atlantic

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region. (Id., ¶ 2.) Less than ten percent of Proforma’s revenue is generated from clients located

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in California. (Id.)

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The Court shall address additional facts as necessary in the remainder of this Order.

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ANALYSIS

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Defendants seek to have the Court transfer this action to the Northern District of

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Georgia. Pursuant to 28 U.S.C. § 1404(a), a district court may transfer a civil action to any

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district where the case could have been filed originally for the convenience of the parties and

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witnesses and in the interest of justice.

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A motion to transfer venue under § 1404(a) requires the court to weigh multiple factors

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to determine whether transfer is appropriate in a particular case. For example, the court may

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consider: (1) the plaintiff’s choice of forum; (2) the convenience of witnesses and the parties;

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(3) the familiarity of the forum with the applicable law; (4) the ease of access to evidence; and

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(5) the relative court congestion and time of trial in each forum. Gulf Oil Co. v. Gilbert, 330

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U.S. 501, 508 -09 (1947); Jones v. GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir.

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2000). As the moving party, Defendants bear the burden of showing that the inconvenience of
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litigating in this forum favors transfer. See E. & J. Gallo Winery v. F. & P.S.p.A., 899 F. Supp.

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465, 466 (E.D. Cal. 1994) (noting that to meet this burden requires production of affidavits or

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declarations identifying key witnesses and anticipated testimony).

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There is no dispute that Plaintiff could have sued Defendants in the Northern District of

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Georgia. Accordingly, the Court weighs the relevant competing factors to determine which

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forum is appropriate under the circumstances.

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A court should give a plaintiff’s choice of forum great deference unless the defendant

Plaintiff’s Choice of Forum.

Decker Coal Co., 805 F.2d at 843. There are, however, factors that diminish the deference

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For the Northern District of California

can show that other factors of convenience clearly outweigh the plaintiff’s choice of forum.

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United States District Court

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given to a plaintiff’s choice of forum. For example, where, as here, a plaintiff seeks to represent

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a nationwide class, their choice of forum is less significant. Lou v. Belzberg, 834 F.2d 730, 739

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(9th Cir. 1987). Moreover, the deference accorded to a plaintiff’s chosen forum should be

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balanced against both the extent of a defendant’s contacts with the chosen forum and a

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plaintiff’s contacts, including those relating to a plaintiff’s cause of action. Pacific Car and

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Foundry Co. v. Pence, 403 F.2d 949, 954 (9th Cir. 1968). “If the operative facts have not

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occurred within the forum of original selection and that forum has no particular interest in the

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parties or the subject matter, [a] plaintiff’s choice is only entitled to minimal consideration.” Id.

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Plaintiff does reside here and, therefore, this forum has some connection with the

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allegations. However, the bulk of the pertinent events did not occur in this district. The focus

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of this action will be the conduct of Defendants, their documents, and their practices and

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procedures. See Smith v. HireRight Solutions, Inc., 2010 WL 2270541, *4 (E.D. Pa. June 7,

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2010) (noting that multiple courts considering motions to transfer in FCRA cases have found

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that the appropriate venue is where the defendants are located and have conducted their

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business); see also Johnson v. Experian Information Servs., 2012 WL 5292955, *3 (C.D. Cal.

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Sept. 5, 2012). Notably, Plaintiff is not seeking any actual damages. Instead, he is seeking only

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statutory and punitive damages. Therefore, a key issue will be whether Defendants’ conduct

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was willful. See HireRight Solutions, 2010 WL 2270541 at *6 (finding focus of the litigation
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would be on defendant’s actions and that named plaintiff’s role would likely be minimal where

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the plaintiff sought only statutory and punitive damages under the FCRA). Accordingly,

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Plaintiff’s choice of forum is not entitled to much deference.

In addition to considering the Plaintiff’s choice of forum, the Court will consider the

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relative convenience to all the parties involved in the lawsuit of the competing forums when

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deciding a motion to transfer. Gulf Oil, 330 U.S. at 508. The convenience of witnesses is often

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the most important factor in resolving a motion to transfer. The trial court looks at who the

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witnesses are, where they are located, and the relevance of their testimony. A.J. Industries, Inc.

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v. United States District Court, 503 F.3d 384, 389 (9th Cir. 1974). Defendants have submitted

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For the Northern District of California

2.

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United States District Court

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Convenience of the Witnesses and Parties.

evidence to show that there will be several key witnesses regarding both BeavEx’s and

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Proforma’s policies and practices, including former employees and third-party witnesses, who

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reside in the Northern District of Georgia. Moreover, the physical documents that were used at

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the time when Plaintiff applied for a position with BeavEx are kept in Atlanta, Georgia. (Elkon

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Decl., ¶¶ 2-5, 7-9; Jordan Decl., ¶¶ 4-6; Declaration of Sandra Foster, ¶¶ 2-9.) Although

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Plaintiff resides in this district, he does not provide any evidence of what his testimony would

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be or whether there are other relevant witnesses and evidence located here. As noted above,

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because Plaintiff is bringing this case as a nation-wide class action and he is not seeking any

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individual damages, his role is likely to be minimal. There is no indication why class members

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located in the Northern District of Georgia could not provide testimony regarding their

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experience in applying for a position with BeavEx and what forms they were provided, to the

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extent such testimony is necessary. Based on the evidence in the record, including evidence of

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witnesses who would be inconvenienced and/or beyond the subpoena power of this district, the

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Court finds the convenience of the witnesses and parties factor weighs in favor of transfer.

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3.

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Neither party has demonstrated that one forum would be more familiar with the law

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Familiarity of the Forum With the Applicable Law.

involved. Therefore, the Court finds this factor to be neutral.

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Ease of Access to Evidence.

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Access to sources of proof is another factor that favors transfer. Gulf Oil, 330 U.S. at

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508. Defendants have submitted declarations which indicate that, to the extent there are

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relevant physical documents, the majority of the documentary evidence relating to the FCRA

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claims are located in Atlanta, Georgia. Therefore, the Court concludes that Defendants have

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met their burden to show that the majority of the documentary evidence pertinent to this dispute

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is located in the Northern District of Georgia. This factor also weighs in favor of transfer.

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Relative Congestion.

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Another factor courts consider is the relative court congestion in each forum. According
to available statistics, the Northern District of California has a heavier case load than the

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For the Northern District of California

United States District Court

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Northern District of Georgia. The median time from filing to disposition is also faster in

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Georgia, but not significantly so. (See RJN, Exs. A, B.) Thus, this factor weighs slightly in

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favor of transfer.

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On balance, the Court finds that the majority of factors weigh in favor of transfer.

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Accordingly, the Court finds that Defendants have met their burden of demonstrating that this

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action should be transferred to the Northern District of Georgia and, thus, grants Defendants’

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motion.

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CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’ motion to transfer to the

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case to the United States District Court for the Northern District of Georgia. The Clerk is

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directed to transfer this case, forthwith.

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IT IS SO ORDERED.

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Dated: May 20, 2015
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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