Shively v. PetSmart Inc.
MEMORANDUM OPINION. Signed by Judge Sue L. Robinson on 10/21/2013. (nmfn)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
KATHLEEN ANN SHIVELY,
Civ. No. 13-495-SLR
Jessica Zeldin, Esquire of Rosenthal Monhait & Goddess, P.A., Wilmington, Delaware.
Counsel for Plaintiff. Of Counsel: Jeffrey A. Klafter, Esquire, Seth R. Lesser, Esquire,
Fran L. Rudich, Esquire, and Rachel Aghassi, Esquire of Klafter Olsen & Lesser LLP.
Marc S. Hepworth, Esquire, David A. Roth, Esquire, and Charles Gershbaum, Esquire
of Hepworth Gershbaum & Roth PLLC.
William R. Denny, Esquire and Michael B. Rush, Esquire of Potter Anderson & Corroon
LLP, Wilmington, Delaware. Counsel for Defendant. Of Counsel: Andrew J. Voss,
Esquire, Jacqueline E. Kalk, Esquire, and Jeffrey A. Timmerman, Esquire of Littler
On March 28, 2013, plaintiff Kathleen Ann Shively ("Shively") filed a complaint
against defendant PetSmart, Inc. ("PetSmart") alleging that PetSmart, acting by and
through, among others, Jodi Ryall ("Ryall") unlawfully retaliated against her for joining
and asserting a Fair Labor Standards Act (FLSA) claim for overtime wages and other
damages in the McKee v. PetSmart, lnc. 1 matter before this court. (D.I. 4) Shively also
filed a motion for a preliminary injunction to enjoin PetSmart and its employees from
engaging in any further act of retaliation against her. (D.I. 1) The motion was
withdrawn on May 15, 2013. (D.I. 25) Presently before the court is PetSmart's motion
to transfer this action to the District of South Carolina. (D.I. 18) The court has
jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1337 and 29 U.S.C. §
216(b ). For the reasons that follow, PetS mart's motion to transfer is denied.
Shively is a resident of Duncan, South Carolina. (D.I. 4
7) Shively has
worked for PetS mart from in or about July 2002 until the present at PetS mart's stores
located in Greenville, Spartanburg, and Taylors, South Carolina. (/d.
PetSmart is a Delaware corporation with its principal place of business located at
19601 N. 27th Avenue, Phoenix, Arizona 85027. (/d.
9) PetSmart operates a
chain of 1 ,232 stores in 48 states throughout the country, with net sales of over $6.1
McKee v. PetSmart, Inc., Civ. No. 12-1117,2013 WL 2456719 (D. Del. June 5,
2013) (adopting Magistrate Judge Thynge's Report and Recommendation that action
not be transferred to Arizona) ("McKee Order'); McKee v. PetSmart,lnc., Civ. No. 121117, 2013 WL 1163770 (D. Del. Mar. 20, 2013) (Report and Recommendation)
billion in fiscal year 2012. (Id.) PetS mart does business in Delaware, including at its
retail locations throughout the State of Delaware. (ld.
10) Ryall is a store manager
at the PetSmart location where Shively is currently assigned, and supervises and
directs Shively in her present work for PetSmart. (/d.
Ill. STANDARD OF REVIEW
Section 1404(a) of Title 28 of the United States Code grants district courts the
authority to transfer venue "[f]or the convenience of parties and witnesses, in the
interests of justice ... to any other district or division where it might have been
brought." 28 U.S.C. § 1404(a). Much has been written about the legal standard for
motions to transfer under 28 U.S.C. § 1404(a). See, e.g., In re Link_A_Media Devices
Corp., 662 F.3d 1221 (Fed. Cir. 2011 ); Jumara v. State Farm Ins. Co., 55 F.3d 873 (3d
Cir. 1995); Helicos Biosciences Corp. v. 11/umina, Inc., 858 F. Supp. 2d 367 (D. Del.
Referring specifically to the analytical framework described in Helicos, the court
starts with the premise that a defendant's state of incorporation has always been "a
predictable, legitimate venue for bringing suit" and that "a plaintiff, as the injured party,
generally ha[s] been 'accorded [the] privilege of bringing an action where he chooses."'
858 F. Supp. 2d at 371 (quoting Norwood v. Kirkpatrick, 349 U.S. 29, 31 (1955)).
Indeed, the Third Circuit in Jumara reminds the reader that "[t]he burden of establishing
the need for transfer ... rests with the movant" and that, "in ruling on defendants'
motion, the plaintiff's choice of venue should not be lightly disturbed." 55 F.3d at 879
The Third Circuit goes on to recognize that,
[i]n ruling on§ 1404(a) motions, courts have not limited their
consideration to the three enumerated factors in§ 1404(a)
(convenience of parties, convenience of witnesses, or
interests of justice), and, indeed, commentators have called
on the courts to "consider all relevant factors to determine
whether on balance the litigation would more conveniently
proceed and the interests of justice be better served by
transfer to a different forum.
/d. (citation omitted). The Court then describes some of the "many variants of the
private and public interests protected by the language of§ 1404(a)." /d.
The private interests have included: plaintiff's forum of
preference as manifested in the original choice; the
defendant's preference; whether the claim arose elsewhere;
the convenience of the parties as indicated by their relative
physical and financial condition; 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 the
location of books and records (similarly limited to the
extent that the files could not be produced in the
The public interests have included: the enforceability of the
judgment; practical considerations that could make the trial
easy, expeditious, or inexpensive; the relative administrative
difficulty in the two fora resulting from court congestion; the
local interest in deciding local controversies at home; the
public policies of the fora; and the familiarity of the trial judge
with the applicable state law in diversity cases.
/d. (citations omitted) (emphasis added).
With the above "jurisdictional guideposts" in mind, the court turns to the "difficult
issue of federal comity" that transfer motions present. E.E.O.C. v. Univ. of Pa., 850
F.2d 969, 976 (3d Cir. 1988). Shively has not challenged PetSmart's assertion that
venue would also be proper in the District of South Carolina; therefore, the court will not
address this further. See 28 U.S.C. § 1404(a); (D. I. 19 at 4-5)
The parties have both chosen legitimate forums in which to pursue the instant
litigation. In this regard, certainly a party's state of incorporation is a traditional and
legitimate venue, as is the locus of a party's business activities. Given that
"convenience" is separately considered in the transfer analysis, the court declines to
elevate a defendant's choice of venue over that of a plaintiff based on defendant's
convenience. Therefore, the fact that plaintiffs have historically been accorded the
privilege of choosing their preferred venue for pursuing their claims remains a
With respect to where the claim arose, PetSmart argues that the events
underlying Shively's claims occurred at the PetSmart in which Shively is employed
located in the District of South Carolina. (D.I. 19 at 7) Shively, however, contends that
her present retaliation claim arose from her participation in the McKee action pending
before this court and the facts of the two are intertwined. (D.I. 30 at 7) Shively further
contends that, in bringing its counterclaim against her, PetSmart seeks to litigate the
identical issue as that in McKee. (/d. at 1)
The Third Circuit in Jumara indicated that, in evaluating the convenience of the
parties, a district court should focus on the parties' relative physical and financial
condition. In this case, PetSmart is a large company and Shively is an employee of
PetSmart. PetSmart's litigation history shows that it has litigated in multiple states and,
therefore, is financially capable of litigating in Delaware. 2
Considering the convenience factor, PetSmart has not argued that any potential
witness or document will be unavailable for trial in Delaware, only that it will be more
costly to try the case in this forum. As noted by the court in denying PetSmart's motion
to transfer venue in McKee, however, "[g]iven that discovery is a local evene and trial is
a limited event4 in this court," McKee Order, 2013 WL 2456719, at *1, the convenience
factor does not compel a change in venue.
With respect to administrative difficulty, trial in this case will be scheduled
consistent with the parties' proposals. PetSmart argues that South Carolina is the clear
epicenter of this dispute giving it a greater local interest in the controversy. (0.1. 19 at
11) PetS mart, however, is a corporate citizen of Delaware, and Delaware "is usually
found to have an interest when a lawsuit is brought against ... its citizens." Zazzali v.
Swenson, 852 F. Supp. 2d 438, 452 (D. Del. 2012). "Furthermore, while [South
Carolina] has a local interest, the instant action does not represent a local controversy,
since it involves violation of a federal law, brought against a multinational corporation,"
see McKee R&R, 2013 WL 1163770, at *6, concerning policies that are enforced on a
Searches by party name in the PACER case locator reveal PetSmart as a party
to approximately 376 civil cases in almost every state. Shively has also opted into the
McKee action before this court, from which the present action derives. (D.I. 30 at 1)
Depositions are taken where the deponents reside; the production of documents
is an electronic event.
Limited in terms of the number of hours allocated per party, and the number of
witnesses and exhibits that are generally presented in that time frame.
company-wide basis. Local interest in deciding local controversies, therefore, is not a
The remaining Jumara public interest factors-the enforceability of a judgment,
the public policies of the fora, and the familiarity of the judge with state law-carry little
weight in this transfer analysis.
In sum, PetSmart has the burden of persuading the court that transfer is
appropriate, not only for its convenience but in the interests of justice. For the reasons
cited above, the court is not persuaded that transfer is warranted.
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