Colon v. T-Mobile Puerto Rico LLC et al
Filing
12
MEMORANDUM AND ORDER GRANTING D. I. 9 MOTION to Dismiss, Transfer, Or Stay the Proceeding filed by T-Mobile Puerto Rico LLC, DENYING without prejudice to renew D.I. 5 MOTION Requesting Order Appointing Process Server filed by Jose Carlos Velez Colon, DENYING without prejudice to renew D.I. 4 MOTION Requesting Electronic Notification filed by Jose Carlos Velez Colon, ***Civil Case Terminated.. Signed by Judge J. Curtis Joyner on 5/24/2011. (dlk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JOSE CARLOS VELEZ COLON
v.
T-MOBILE PUERTO RICO LLC and
DUETSCHE TELEKOM AG,
:
:
:
:
:
:
CIVIL ACTION
No. 11-CV-181
MEMORANDUM AND ORDER
JOYNER, J.
May 24, 2011
Plaintiff José Carlos Vélez Colón (“Plaintiff”), who
proceeds pro se and has been granted in forma pauperis status,
filed this lawsuit pursuant to the Fair Credit Reporting Act, 15
U.S.C. §§ 1681 et seq. (D.I. 2.)
BACKGROUND
Plaintiff resides in Puerto Rico and has named as defendants
T-Mobile Puerto Rico LLC (“T-Mobile”) and Duetsche Telekom AG.
T-Mobile is a limited liability company authorized to do business
under the laws of the Commonwealth of Puerto Rico.1
Puerto Rico
Telephone Co., Inc. v. Telecommunications Regulatory Bd., Civ.
No. 08-1885(JP), 2011 WL 1097741, at *1 (D.P.R. Mar. 18, 2011).
The instant action is one of six lawsuits Plaintiff has filed
1
T-Mobile USA, Inc. is a Delaware corporation with its
principal place of business in Washington state. Vivendi SA v.
T-Mobile USA Inc., 586 F.3d 689 (9th Cir. 2009). T-Mobile USA is
the United States operating entity of T-Mobile International AG,
the mobile communications subsidiary of defendant Deutsche
Telekom AG. See http://www.t-mobile.com/Company/CompanyInfo.
across four jurisdictions against T-Mobile arising out of his
visits to a T-Mobile store in Puerto Rico.
The complaint alleges that on May 21, 2010, Plaintiff
visited Defendants’ store and events that day led to violations
of the Fair Credit Reporting Act.
(D.I. 2.)
no reference to the location of the store.
The complaint makes
However, T-Mobile has
filed a motion to dismiss, transfer or stay the proceeding and it
indicates that the store is located in Puerto Rico.
10.)
(D.I. 9,
Plaintiff did not respond to the motion.
DISCUSSION
I.
LEGAL STANDARD
Pursuant to 28 U.S.C. § 1404(a), a district court may
transfer any civil action to any other district where the action
might have been brought for the convenience of parties and
witnesses and in the interests of justice.
Congress intended
through § 1404 to place discretion in the district court to
adjudicate motions to transfer according to an individualized,
case-by-case consideration of convenience and the interests of
justice.
Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29
(1988); Affymetrix, Inc. v. Synteni, Inc., 28 F. Supp. 2d 192,
208 (D. Del. 1998).
The burden of establishing the need to transfer rests with
the movant “to establish that the balance of convenience of the
parties and witnesses strongly favors the defendants.”
2
Bergman
v. Brainin, 512 F.Supp. 972, 973 (D. Del. 1981) (citing Shutte v.
Armco Steel Corp., 431 F.2d 22, 25 (3d Cir. 1970)).
“Unless the
balance is strongly in favor of a transfer, the plaintiff's
choice of forum should prevail.”
ADE Corp. v. KLA-Tencor Corp.,
138 F. Supp. 2d 565, 567-68 (D. Del. 2001); Shutte, 431 F.2d at
25.
The deference afforded plaintiff's choice of forum will
apply as long as a plaintiff has selected the forum for some
legitimate reason.
C.R. Bard, Inc. v. Guidant Corp., 997 F.Supp.
556, 562 (D. Del. 1998); Cypress Semiconductor Corp. v.
Integrated Circuit Sys., Inc., No. Civ. A. 01-199, 2001 WL
1617186, at *2 (D.Del. Nov. 28, 2001); Continental Cas. Co. v.
American Home Assurance Co., 61 F. Supp. 2d 128, 131 (D. Del.
1999).
Although transfer of an action is usually considered as
less inconvenient to a plaintiff if the plaintiff has not chosen
its “‘home turf’ or a forum where the alleged wrongful activity
occurred, the plaintiff’s choice of forum is still of paramount
consideration, and the burden remains at all times on the
defendants to show that the balance of convenience and the
interests of justice weigh strongly in favor of transfer.”
In re
ML-Lee Acquisition Fund II, L.P., 816 F.Supp. 973, 976 (D. Del.
1993).
The analysis for transfer is very broad.
Jumara v. State
Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995).
Although “there
is no definitive formula or list of factors,” potential private
and/or public interests are considered.
The private interests
include: (1) plaintiff’s forum preference as manifested in the
3
original choice; (2) defendant’s preference; (3) whether the
claim arose elsewhere; (4) the convenience of the parties as
indicated by their relative physical and financial condition; (5)
the convenience of the witnesses but only to the extent that the
witnesses may actually be unavailable for trial in one of the
fora; and (6) location of books and records (similarly limited to
the extent that the files could not be produced in the
alternative forum).”
Id. (citations omitted).
The public
interests include: “(1) the enforceability of the judgment; (2)
practical considerations that could make the trial easy,
expeditious or inexpensive; (3) the relative administrative
difficulty in the two fora resulting from court congestion; (4)
the local interest in deciding local controversies at home; (5)
the public policies of the fora; and (6) the familiarity of the
trial judge with the applicable state law in diversity cases.”
Id. (citations omitted).
4
II.
TRANSFER
In viewing all the Jumara factors, the court finds that they
weight in favor of transfer.
The alleged facts giving rise to
the complaint occurred in Puerto Rico.
Plaintiff is a resident
of Puerto Rico and has no connection to Delaware.
The District
of Puerto Rico is a more convenient forum.
Documents, witnesses,
and evidence are located in the district.
Hence, it will be more
efficient and less expensive to litigate the dispute in Puerto
Rico, rather than Delaware.
Finally, given the fact that the
alleged wrong occurred in Puerto Rico, the District of Puerto
Rico has a stronger interest in deciding the dispute.
It is evident from reading the complaint and T-Mobile’s
pending motion, that the events giving rise to the claims at bar
occurred in Puerto Rico, where the T-Mobile store at issue is
located, where plaintiff resides, and where T-Mobile conducts
business as a limited liability company.
Consequently, for the
convenience of the parties and in the interests of justice, venue
is appropriate in the District of Puerto Rico, not the District
of Delaware.
5
CONCLUSION
For the above reasons, the court will deny without prejudice
to renew Plaintiff’s pending motions and will grant T-Mobile’s
motion to transfer.
(D.I. 4, 5, 10.)
An appropriate Order follows.
6
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JOSE CARLOS VELEZ COLON
v.
T-MOBILE PUERTO RICO LLC and
DUETSCHE TELEKOM AG,
:
:
:
:
:
:
CIVIL ACTION
No. 11-CV-181
ORDER
AND NOW, this 24th day of May, 2011, for the reasons set
forth in the preceding Memorandum and Order, IT IS HEREBY ORDERED
that:
1.
The Clerk of Court shall cause a copy of this Order to
be mailed to Plaintiff.
2.
Plaintiff’s motion requesting order appointing process
server and motion requesting electronic notification are DENIED
without prejudice to renew.
3.
(D.I. 4, 5.)
Defendant T-Mobile Puerto Rico LLC’s motion to dismiss,
transfer or stay the proceeding is GRANTED.
4.
(D.I. 9.)
The Clerk of Court is directed to TRANSFER this action
the United States District Court for the District of Puerto Rico.
BY THE COURT:
s/J. Curtis Joyner
J. CURTIS JOYNER,
J.
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