Dunstan et al v. comScore, Inc.

Filing 302

MOTION by Defendant comScore, Inc. for leave to file Motion to Transfer Under 28 U.S.C. §1404(a) (Attachments: # 1 Exhibit)(Bowland, Robyn)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MIKE HARRIS and JEFF DUNSTAN,
individually and on behalf of a class of
similarly situated individuals
Plaintiff,

CASE NO. 1:11-cv-5807
Judge Holderman
Magistrate Judge Kim

v.
COMSCORE, INC., a Delaware corporation
Defendant.

COMSCORE, INC.’S MOTION FOR LEAVE TO FILE ITS
MOTION TO TRANSFER UNDER 28 U.S.C. §1404(a)
comScore, Inc. (“comScore”) respectfully moves for leave to file its proposed Motion to
Transfer Under 28 U.S.C. §1404(a), attached hereto as Exhibit 1, as an amendment to its
Renewed Motion to Dismiss Under Rule 12(b)(3). comScore filed its Renewed Motion to
Dismiss on October 30, 2013, for the purpose of enforcing the forum selection clause agreed to
by Plaintiffs. (Dkt No. 242.) However, on December 3, 2013 (after comScore’s Renewed
Motion to Dismiss and Plaintiffs’ responsive brief had been filed), the United States Supreme
Court held that the proper motion for enforcing a forum selection clause is a motion to transfer
pursuant to 28 U.S.C. §1404(a). Atl. Marine Constr. Co., Inc. v. U.S. Dist. Court for W. Dist. of
Texas, 134 S. Ct. 568, 575 (December 3, 2013). 28 U.S.C. §1404(a) 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 or to any district or
division to which all parties have consented.”

The Supreme Court’s decision in Atl. Marine Constr. Co., Inc. is a change in the law of
this Circuit. Prior to that decision, the Seventh Circuit enforced forum selection clauses by
dismissing the action. See, e.g., Adams v. Raintree Vacation Exch., LLC, 702 F.3d 436, 444 (7th
Cir. 2012) (affirming the district court’s dismissal of a suit for improper venue on the basis of a
forum selection clause). Because the binding authority has changed since comScore filed its
Renewed Motion to Dismiss, comScore’s Motion for Leave to File Its Motion to Transfer under
28 U.S.C. §1404(a) should be granted.
DATED: December 23, 2013

QUINN EMANUEL URQUHART &
SULLIVAN, LLP

/s/ Andrew H. Schapiro
Andrew H. Schapiro
[e-mail]
Stephen Swedlow
[e-mail]
Robyn Bowland
[e-mail]
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
500 West Madison Street, Suite 2450
Chicago, Illinois 60661
Telephone: [phone]
Facsimile: [phone]
Paul F. Stack
[e-mail]
Stack & O'Connor Chartered
140 South Dearborn Street
Suite 411
Chicago, IL 60603
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant comScore, Inc.

2

CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that a true and correct copy of the foregoing has
been caused to be served on December 23, 2013 to all counsel of record via the Court’s ECF
notification system.
/s/ Robyn M. Bowland
Robyn Bowland

3