Bowen et al v. Wheaton Franciscan Services, Inc. et al
Filing
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MEMORANDUM Opinion and Order written by the Honorable Gary Feinerman on 10/31/2016.Mailed notice.(jlj, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DIANN M. CURTIS, individually and on behalf of herself and
all others similarly situated,
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Plaintiff,
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vs.
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WHEATON FRANCISCAN SERVICES, INC. d/b/a Wheaton
Franciscan Healthcare, WHEATON FRANCISCAN SYSTEM )
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RETIREMENT PLAN COMMITTEE, and JOHN DOEs 1-20,
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Defendants.
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_________________________________________________
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BRUCE BOWEN and CHERYL MUELLER, individually and
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on behalf of herself and all others similarly situated, and on
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behalf of the Wheaton Franciscan System Retirement Plan,
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Plaintiffs,
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vs.
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WHEATON FRANCISCAN SYSTEM RETIREMENT PLAN, )
WHEATON FRANCISCAN SERVICES, INC. d/b/a Wheaton
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Franciscan Healthcare, OPERATIONS COMMITTEE OF THE )
BOARD OF DIRECTORS OF WHEATON FRANCISCAN
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SERVICES, INC., JOHN and JANE DOEs 1-20, members of
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the Operations Committee, ASCENSION HEALTH,
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ASCENSION HEALTH ALLIANCE d/b/a Ascension,
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ASCENSION HEALTH PENSION COMMITTEE, JOHN and )
JANE DOEs 21-40, members of the Ascension Health Pension
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Committee, and JOHN and JANE DOEs 41-60,
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Defendants. )
16 C 4232
Judge Gary Feinerman
16 C 6782
Judge Gary Feinerman
MEMORANDUM OPINION AND ORDER
In these putative class actions, Diann Curtis in Case 16 C 4232, and Bruce Bowen and
Cheryl Mueller in Case 16 C 6782, allege that Wheaton Franciscan Services and others violated
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the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq., in
administering Wheaton’s employee pension plan. Defendants have moved to transfer both cases
to the Eastern District of Missouri pursuant to 28 U.S.C. § 1404(a). Doc. 12 (16 C 4232); Doc.
18 (16 C 6782). The motions are denied.
Background
To resolve a motion to transfer, the court draws the facts from the complaint, as
supplemented by affidavits and other evidence, and draws all reasonable inferences in Plaintiffs’
favor. See Faulkenberg v. CB Tax Franchise Sys., LP, 637 F.3d 801, 809-10 (7th Cir. 2011);
Kuvedina, LLC v. Pai, 2011 WL 5403717, at *1 (N.D. Ill. Nov. 8, 2011). Unless noted
otherwise, all record citations are to the docket in Case 16 C 4232.
Wheaton is an Illinois-based nonprofit corporation with offices in Glendale, Wisconsin,
and headquarters in the Chicago suburb of Wheaton, Illinois. Doc. 1 at ¶ 11; Doc. 1 (16 C 6782)
at ¶ 20. It operates nineteen hospitals and other healthcare facilities in Illinois, Iowa, Wisconsin,
and Colorado. Doc. 1 at ¶¶ 25-26. Wheaton offers its 17,000 employees a defined-benefit
pension retirement plan (“the Plan”), which Wheaton administered from its establishment in
1983 through February 29, 2016. Id. at ¶¶ 42-44; Doc. 1 (16 C 6782) at ¶¶ 20.
In October 2015, Wheaton began transferring its holdings to other healthcare
organizations. Doc. 1 (16 C 6782) at ¶¶ 20, 47-51. In March 2016, some of Wheaton’s
operations in Wisconsin passed to Ascension Health, which took over sponsorship and
administration of the Plan. Id. at ¶¶ 22, 48. Ascension, which the Bowen plaintiffs have named
as a defendant, is a Missouri corporation with headquarters in St. Louis, Missouri. Id. at ¶ 22.
Effective March 1, 2016, the day that Ascension took over the Plan, Defendants amended
the Plan’s governing document to add a forum selection clause. Doc. 15-1 at 8; Doc. 47-1 at 2-3.
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The forum selection clause provides that any suit concerning the Plan shall be resolved in the
state courts in St. Louis County, Missouri or in the Eastern District of Missouri. Doc. 15-1 at 48
§ 13.17. A bulletin dated May 12, 2016 informed Plan participants of the clause’s addition.
Doc. 47-1.
Plaintiffs are Wheaton retirees who are eligible for benefits under the Plan. Doc. 1 at ¶ 9;
Doc. 1 (16 C 6782) at ¶¶ 17-18. Wheaton employed Curtis at a medical center in Waterloo,
Iowa, for twenty years; she retired in October 2009, receives benefits as a Plan participant, and
lives in Denver, Iowa. Doc. 1 at ¶ 9. Wheaton employed Bowen for sixteen years and Mueller
for forty-seven years until their retirements in April 2014 and July 2015, respectively; they, too,
are current Plan beneficiaries. Doc. 1 (16 C 6782) at ¶¶ 17-18. Both worked for Wheaton in
southeastern Wisconsin, where they still reside. Doc. 25 (16 C 6782) at 13 & n.4.
Discussion
Section 1404(a) states: “For 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 ….” 28 U.S.C. § 1404(a). The moving party ordinarily bears the
burden of demonstrating that a transfer is clearly warranted. See Heller Fin., Inc. v. Midwhey
Powder Co., 883 F.2d 1286, 1293 (7th Cir. 1989); Coffey v. Van Dorn Iron Works, 796 F.2d 217,
219-20 (7th Cir. 1986). If a valid forum selection clause governs the dispute, however, “[the]
clause [should be] given controlling weight in all but the most exceptional cases,” and “the party
defying the forum-selection clause … bears the burden of establishing that transfer to the forum
for which the parties bargained is unwarranted,” and the Atl. Marine Const. Co. v. U.S. Dist. Ct.
for the W. Dist. of Tex., 134 S. Ct. 568, 581 (2013) (alteration in original). Accordingly, the
court first will determine whether the forum selection clause added to the Plan in March 2016
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applies to the two present suits and then, applying the standard that follows from that
determination, will evaluate whether a transfer is warranted.
A.
The Forum Selection Clause Does Not Govern These Suits.
As noted, Defendants amended the Plan on March 1, 2016 to add a forum selection
clause. The clause states in relevant part: “Any action by any party relating to or arising under
the Plan shall be brought and resolved only in the state courts in St. Louis County, Missouri or
the U.S. District Court for the Eastern District of Missouri.” Doc. 15-1 at 48 § 13.17; Doc. 47-1
at 3. The parties dispute whether the clause governs Plaintiffs’ claims.
According to Plaintiffs, the forum selection clause applies only to employees who retire
on or after the amendment’s March 1, 2016 effective date, meaning that it does not apply to any
of them, as they all retired in 2015 or earlier. Doc. 20 at 2; Doc. 25 (16 C 6782) at 3. To support
their reading, Plaintiffs point to § 1.02 of the amended Plan, which states: “The provisions of this
Plan shall apply only to an Employee who terminates employment with the Employers on or
after the effective date of this amendment and restatement.” Doc. 15-1 at 9 § 1.02; Doc. 20 at 2;
Doc. 25 (16 C 6782) at 3. As its text makes clear, § 1.02 is a non-retroactivity rule providing
that the amended Plan applies only to employees who retire on or after March 1, 2016.
Defendants respond by arguing that § 1.02’s non-retroactivity rule governs only the
Plan’s “substantive” provisions—meaning those pertaining to the calculation of benefits—and
not to “procedural” provisions like the forum selection clause. Doc. 21 at 1. This reading’s
principal flaw is that the pertinent text includes no such limitation; it refers to “[t]he provisions
of this Plan,” period, not to “the substantive provisions of this Plan.” Defendants nevertheless
urge that the above-quoted sentence of § 1.02 be read in context with the two sentences that
follow, both of which address benefits under the Plan. Doc. 45 at 8-9. The three sentences read:
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The provisions of this Plan shall apply only to an Employee who terminates
employment with the Employers on or after the effective date of this
amendment and restatement. Except as otherwise specifically provided for
herein, a former employee’s eligibility for benefits, and the amount of benefits,
if any, payable to or on behalf of a former employee shall be determined in
accordance with the provisions of the Plan in effect on the date his or her
employment terminated. The benefit payable to or on behalf of a Participant
covered under this amendment and restatement of the Plan shall not be
affected by the terms of any amendment to the Plan adopted after such
Participant’s employment terminates, unless the amendment expressly
provides otherwise.
Doc. 15-1 at 9 § 1.02 (emphases added). The second sentence makes clear that the benefits (if
any) owed to former employees will be determined according to the version of the Plan that was
in effect on the day they retired. The third sentence adds that the benefits (if any) owed to
current employees during their retirement will not be affected by Plan amendments adopted after
they retire unless the amendment provides otherwise.
According to Defendants, the fact that the second and third sentences speak only to
eligibility for benefits and their amounts—in other words, the fact that those sentences speak
only to the Plan’s substantive provisions—means that the first sentence likewise pertains only to
the Plan’s substantive provisions. But the specificity of the second and third sentences cuts in
favor of Plaintiffs’ reading of § 1.02, not Defendants’; it shows that the Plan’s drafters knew how
to limit Plan language to substantive matters when they wished to do so. See In re Pajian, 785
F.3d 1161, 1164 (7th Cir. 2015) (“The use of both terms in Rule 3002 suggests that the drafters
knew how to distinguish between all claims and unsecured claims. That they did not specifically
mention unsecured claims when setting forth the 90–day deadline in subsection (c) thus strongly
implies that the deadline encompasses all claims ….”). Had the Plan’s drafters intended the
limitation Defendants urge, they could and would have written the limitation into § 1.02’s first
sentence by qualifying the generic term “provisions” rather than leaving it unadorned. The most
logical reading of § 1.02, then, is that the first sentence sets forth a general non-retroactivity rule
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applicable to all “provisions of this Plan,” both substantive and procedural, while the second and
third sentences clarify how that general rule applies specifically to provisions concerning
eligibility for and amount of benefits. To conclude otherwise would read into the first sentence
of § 1.02 a limitation that its text does not admit.
Defendants next appeal to the venerable principle that “specific provisions in a contract
control over general ones.” Doc. 21 at 3. In their view, the fact that the forum selection clause
applies by its terms to “[a]ny action by any party” overrides and carves an exception to § 1.02’s
general non-retroactivity rule. Doc. 21 at 3 (alteration in original) (quoting Doc. 15-1 at 48
§ 13.17). That argument is meritless. The forum selection clause’s reference to “any party,”
without more, is too thin a reed on which to hang the conclusion that the Plan’s drafters intended
to exempt the forum selection clause from § 1.02. Rather than meaning “any party, including
those not otherwise subject to this Plan amendment by virtue of § 1.02,” the term “any party”
means “any party to whom this amendment applies.”
Section 5.01 of the Plan confirms that Plaintiffs’ interpretation of § 1.02 and the forum
selection clause is correct. Section 5.01 expressly exempts Article V of the Plan from the nonretroactivity rule in § 1.02’s first sentence, and it does so in no uncertain terms. It states in
relevant part: “Notwithstanding the provisions of Section 1.02 (which provided that Plan
amendments after a Participant terminates employment shall not be applicable to such
Participant)[,] effective January 1, 2016 the provisions of this Article V shall be applicable to
Participants regardless of termination date.” Doc. 15-1 at 26 § 5.01 (emphasis added). By
stating without qualification that § 1.02 “provide[s] that Plan amendments after a Participant
terminates employment shall not be applicable to such Participant,” § 5.01 confirms that § 1.02
means what it says: it imposes a non-retroactivity rule for all Plan provisions (unless otherwise
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specified) and not just its substantive provisions. Cf. Barnett v. Ameren Corp., 436 F.3d 830,
833 (7th Cir. 2006) (“A provision that seems ambiguous might be disambiguated elsewhere in
the agreement.”). Moreover, the fact that § 5.01 expressly exempts Article V from the scope of
§ 1.02 shows that the Plan’s drafters knew how to carve such an exemption, and the fact that they
did not do so in the forum selection clause means that they did not intend to do so. See Habitat
Educ. Ctr. v. U.S. Forest Serv., 607 F.3d 453, 460 (7th Cir. 2010) (holding that the Federal Rules
of Civil Procedure do not exempt nonprofits from posting injunction bonds, reasoning that Rule
65(c) contains an “express exemption of the federal government from having to post a bond,
which suggests—what is anyway obvious—that the framers of the rules know how to make
exceptions to them”); Fix v. Quantum Indus. Partners LDC, 374 F.3d 549, 552-53 (7th Cir.
2004) (“[W]hen the parties wanted to limit the definition of ‘Change in Control,’ they certainly
knew how to do so. Indeed, the PROP definition for ‘Change in Control’ includes an exclusion
for an initial public offering and for any event that the board of directors deems does not
constitute a ‘Change of Control.’ There is a strong presumption against reading into contracts
provisions that easily could have been included but were not.”).
For these reasons, the forum selection clause applies only to employees retiring on or
after March 1, 2016, and not to individuals, like Plaintiffs, who retired before then.
B.
Under the Traditional § 1404(a) Standard, Transfer Is Not Warranted.
Because Plaintiffs are not “parties [who] have agreed to a valid forum-selection clause,”
the traditional § 1404(a) standard applies to Defendants’ motions to transfer. Atl. Marine, 134 S.
Ct. at 581. Under that standard, transfer “is appropriate if: (1) venue is proper in both the
transferor and transferee court; (2) transfer is for the convenience of the parties and witnesses;
and (3) transfer is in the interest of justice.” Law Bulletin Publ’g Co. v. LRP Publ’ns, Inc., 992
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F. Supp. 1014, 1017 (N.D. Ill. 1998); see also Atl. Marine, 134 S. Ct. at 581 (“In the typical case
not involving a forum-selection clause, a district court considering a § 1404(a) motion … must
evaluate both the convenience of the parties and various public-interest considerations.”);
Research Automation, Inc. v. Schrader-Bridgeport Int’l, Inc., 626 F.3d 973, 977-78 (7th Cir.
2010) (“The statutory language … is broad enough to allow the court to take into account all
factors relevant to convenience and/or the interests of justice.”). The parties do not dispute that
venue is proper both in the Northern District of Illinois and in the Eastern District of Missouri, so
only the convenience factors and interest of justice factors require consideration. “The weighing
of factors for and against transfer necessarily involves a large degree of subtlety and latitude,
and, therefore, is committed to the sound discretion of the trial judge.” Coffey, 796 F.2d at 219.
The convenience factors include: “(1) the plaintiff’s choice of forum; (2) the situs of
material events; (3) the relative ease of access to sources of proof; (4) the convenience of the
witnesses; and (5) the convenience [of] the parties.” Law Bulletin Publ’g, 992 F. Supp. at 1017.
The first factor, Plaintiffs’ choice of forum, is essentially neutral. Although a plaintiff’s choice
of forum generally deserves some deference, see FDIC v. Citizens Bank & Trust Co. of Park
Ridge, 592 F.2d 364, 368 (7th Cir. 1979), little if any deference is owed here because no plaintiff
resides in this District; Curtis lives in Iowa, while Bowen and Mueller live in Wisconsin. See
Johnson v. United Airlines, Inc., 2013 WL 323404, at *5 (N.D. Ill. Jan. 25, 2013) (“[T]he
deference owed here is substantially reduced because Plaintiffs do not reside in this
District ….”); C. Int’l, Inc. v. Turner Constr. Co., 2005 WL 2171178, at *1 (N.D. Ill. Aug. 30,
2005) (“Where the plaintiff does not reside in the chosen forum, the plaintiff’s choice of forum is
still accorded some weight, but not as much as otherwise.”) (collecting cases); Countryman v.
Stein Roe & Farnham, 681 F. Supp. 479, 482-83 (N.D. Ill. 1987) (Williams, J.) (“The plaintiff’s
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choice is given less weight when the plaintiff is a non-resident of the chosen forum, when the
plaintiff sues derivatively or as a class representative, and where the cause of action did not
conclusively arise in the chosen forum.”); 15 Wright, Miller, & Cooper, Federal Practice and
Procedure § 3848 (4th ed. 2016) (“If the plaintiff is not a resident of the forum, the plaintiff’s
forum choice may be entitled to relatively little deference.”).
The second factor, the situs of material events, favors Plaintiffs. The Northern District of
Illinois is where Wheaton is headquartered and where, until very recently, it administered the
Plan. Plaintiffs allege that Wheaton’s administration of the Plan was deficient, meaning that
alleged ERISA breaches occurred in this District. Illinois also is among the handful States where
Wheaton has had operations, Doc. 1 at ¶ 25—meaning that many members of the putative
classes contracted for their retirement benefits in this District in conjunction with their work
here. By contrast, Wheaton has no corporate offices or operations in Missouri. Although
Ascension now administers the Plan out of St. Louis, meaning that some recent Plan
administration may have occurred there, the alleged ERISA violations occurred predominantly in
this District. On balance, this factor weighs against transfer.
The third factor, the ease of access to proof, is neutral. “When documents are easily
transferable, access to proof is a neutral factor.” Johnson, 2013 WL 323404, at *5; see also
Sojka v. DirectBuy, Inc., 2014 WL 1089072, at *3 (N.D. Ill. Mar. 18 2014) (collecting cases).
That is especially true where, as here, relevant documents likely exist in both the transferor and
transferee districts. Precisely how many documents are located where matters little, as there is
no reason to think that in this day and age documents could not easily be transferred from St.
Louis to Chicago, or vice versa. See Sojka, 2014 WL 1089072, at *3 (“There is every reason to
believe that all relevant documents can easily be transported, electronically or otherwise, to
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Chicago or Hammond ….”); Johnson, 2013 WL 323404, at *5 (“documents are easily
transferrable”); Nero v. Am. Fam. Mut. Ins. Co., 2011 WL 2938138, at *3 (N.D. Ill. July 19,
2011) (same); Handler v. Kenneth Allen & Assocs., P.C., 2011 WL 1118499, at *3 (N.D. Ill.
Mar. 24, 2011) (“[A]ny relevant records can easily be photocopied and exchanged in either
Indiana or Illinois.”); Digan v. Euro-Am. Brands, LLC, 2010 WL 3385476, at *5 (N.D. Ill. Aug.
19, 2010) (“[D]ocuments now are easily scanned, stored, and electronically transmitted … [and]
moving them no longer creates the onerous burden it may once have imposed.”). Indeed, in the
unlikely event that Wheaton has transferred all relevant documents to Missouri, the fact that it
was able to do so within a few months of Ascension’s taking the reins would simply underscore
how little weight this factor merits in the era of digital communication and overnight delivery.
The fourth factor, the location and convenience of witnesses, is essentially neutral as
well. In many cases, convenience of witnesses is “the most important factor,” Nathan v. Morgan
Stanley Renewable Development Fund, LLC, 2012 WL 1886440, at *20 (N.D. Ill. May 22,
2012), but it has little relevance here. This factor prioritizes the convenience of non-party
witnesses, “as the § 1404 calculus is generally less concerned about the burden that appearing at
trial might impose on witnesses who are either employees of parties or paid experts because it is
presumed that such witnesses will appear voluntarily.” Sojka, 2014 WL 1089072, at *3 (internal
quotation marks omitted); see also Prokop v. StoneMor Partners LP, 2009 WL 3764103, at *5
(N.D. Ill. Nov. 9, 2009) (“[T]he convenience of StoneMor’s employees is entitled only to a little
weight because they are presumed to be under StoneMor’s control.”). Here, the parties’ filings
do not identify any non-party witnesses, much less discuss which forum would be more
convenient for them; rather, both sides focus exclusively on the convenience to the parties. Doc.
14 at 5; Doc. 20 at 13-14.
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The fifth factor, the convenience of the parties, slightly favors Plaintiffs. This factor
requires the court to consider the parties’ “residences and their ability to bear the expenses of
litigating in a particular forum.” Brandon Apparel Grp., Inc. v. Quitman Mfg. Co., 42 F. Supp.
2d 821, 834 (N.D. Ill. 1999). “Transfer is inappropriate if it merely transforms an inconvenience
for one party into an inconvenience for the other party.” Ibid. (internal quotation marks omitted).
Here, although no plaintiff resides in either the transferor or transferee district, the Northern
District of Illinois is closer to Plaintiffs’ residences, and thus more convenient, than the Eastern
District of Missouri. Bowen lives in Franklin, Wisconsin, which is roughly 360 miles from St.
Louis and 80 miles from Chicago; Mueller lives in Hartford, Wisconsin, which is roughly 390
miles from St. Louis and 130 miles from Chicago. Doc. 25 (16 C 6782) at 13-14 & n.5. Curtis
lives in Denver, Iowa, which is roughly 280 miles from Chicago and 350 miles from St. Louis.
(The court takes judicial notice of those distances, see Lowrance v. Pflueger, 878 F.2d 1014,
1018 (7th Cir. 1989), by consulting driving directions from Google Maps, see
https://www.google.com/maps. Both sides have urged the court to rely on Google Maps, Doc. 14
at 3 n.1; Doc. 25 (16 C 6782) at 14 n.5, which the Seventh Circuit allows, see Cloe v. City of
Indianapolis, 712 F.3d 1171, 1177 n.3 (7th Cir. 2013), overruled on other grounds by Ortiz v.
Werner Enters., Inc., __ F.3d __, 2016 WL 4411434, at *4 (7th Cir. Aug. 19, 2016).)
As noted, while Ascension is headquartered in the Eastern District of Missouri, Wheaton
is headquartered in this District. This means that employees with knowledge of relevant events
may be found in both locations and that some amount of travel will be required of Defendants’
employees no matter where this suit is litigated. Moreover, St. Louis and Chicago are major
cities in neighboring States, and both are transportation centers, so traveling between the two
should not impose a significant hardship on Defendants’ employees. See SEC v. Ogle, 2000 WL
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45260, at *3 (N.D. Ill. Jan. 11, 2000) (“It is far easier for out-of-district defendants to litigate
here in a major city with corresponding transportation hubs than to travel to Arkansas.”).
The court next evaluates the interest of justice factors. “The ‘interest of justice’ is a
separate element of the transfer analysis that relates to the efficient administration of the court
system.” Research Automation, 626 F.3d at 978. The relevant factors include “docket
congestion and likely speed to trial in the transferor and potential transferee forums; each court’s
relative familiarity with the relevant law; the respective desirability of resolving controversies in
each locale; and the relationship of each community to the controversy.” Ibid. (citations
omitted). These factors are largely a wash.
The first factor, the expected speed of case resolution, is essentially neutral. See United
States District Courts—National Judicial Caseload Profile at 47, 59,
http://www.uscourts.gov/statistics/table/na/federal-court-management-statistics/2016/06/31-1
(then click “Download Data Table”) (last viewed Oct. 19, 2016) (showing that, as of June 30,
2016, the median civil case took 13.5 months to disposition and 36.2 months to trial in the
Eastern District of Missouri and 7.3 months to disposition and 38.4 months to trial in the
Northern District of Illinois). The second factor, familiarity with relevant law, is also a wash,
with both courts equally capable of resolving these ERISA disputes. See Cent. States, Se. & Sw.
Areas Pension Fund v. Ehlers Dist., Inc., 2012 WL 581246, at *4 (N.D. Ill. Feb. 22, 2012);
Powell v. Sparrow Hosp., 2010 WL 582667, at *5 (N.D. Ill. Feb. 12, 2010) (“The Court’s
familiarity with the applicable federal law is a neutral factor that weighs neither for nor against a
transfer ….”).
The third and fourth interest of justice factors—the desirability of resolving controversies
in each locale, and the relation of each community to the controversy—slightly favor Plaintiffs.
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Until very recently, the Plan was administered out of Illinois by an Illinois-based non-profit
corporation for the benefit of its employees, many of whom are Illinois residents. That said, the
fund is now administered in the Eastern District of Missouri, and by including claims against
Ascension, the Bowen plaintiffs introduced Missouri-based defendants into the case, so that
community also has a meaningful stake in the outcome of this litigation. But, unlike Illinois,
Missouri is not among the four States where Wheaton has employees or retirees who will be
affected. So while relevant Plan administration took place in both districts, affected employees
will only be found in this one. These factors therefore favor Plaintiffs.
In sum, both the convenience factors and the interest of justice factors are mostly neutral
and, if anything, slightly favor this District. Defendants thus have failed to carry their burden of
demonstrating that the relevant factors strongly favor transfer. See In re Nat’l Presto Indus.,
Inc., 347 F.3d 662, 664 (7th Cir. 2003) (“[U]nless the balance is strongly in favor of the
defendant, the plaintiff's choice of forum should rarely be disturbed.”); Coffey, 796 F.2d at 21920 (“The movant … has the burden of establishing, by reference to particular circumstances, that
the transferee forum is clearly more convenient.”); Sojka, 2014 WL 1089072, at *5 (“[T]ransfer
can be ordered only if the balance of factors strongly favor the defendant’s proposed forum.”)
(internal quotation marks omitted).
One wrinkle remains. Although the forum selection clause does not apply to Plaintiffs
and thus does not affect this court’s analysis of whether to transfer their claims, the clause might
apply to putative class members who are current employees or who retired on or after March 1,
2016. Defendants argue that this state of affairs precludes the court from denying transfer
because doing so either would deprive Defendants of their right to a Missouri forum for claims
involving Plan participants subject to the forum selection clause, Doc. 21 at 8, or would lead to
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“piecemeal litigation” in two different districts, Doc. 45 at 9. These arguments are premature on
the present motions to transfer given that they precede class certification. Only three plaintiffs
are before the court right now, and none are bound by a forum selection clause. See Standard
Fire Ins. Co. v. Knowles, 133 S. Ct. 1345, 1349 (2013) (“[A] nonnamed class member is [not] a
party to the class-action litigation before the class is certified.”) (alterations in original); Williams
v. GE Capital Auto Lease, Inc., 159 F.3d 266, 269 (7th Cir. 1998) (“Generally speaking, absent
class members are not ‘parties’ before the court in the sense of being able to direct the
litigation.”).
It is true that when some parties are bound by a forum selection clause and other parties
are not, the clause may influence a court’s decision whether to transfer the claims of the nonsignatory parties. See In re Rolls Royce Corp, 775 F.3d 671, 679-81 (5th Cir. 2014); Mortgage
Resolution Servicing LLC v. JPMorgan Chase Bank, N.A., 2015 WL 9413881, at *2 (S.D.N.Y.
Dec. 22, 2015); Le v. Zuffa, LLC, 108 F. Supp. 3d 768, 775 n.4 (N.D. Cal. 2015); Howmedica
Osteonics Corp. v. Sarkisian, 2015 WL 1780941, at *4 (D.N.J. Apr. 20, 2015). But, as just
noted, that is not the situation here. Because Plaintiffs have not yet moved for (let alone
obtained) class certification, the court does not know which (if any) of their fellow Plan
participants they may come to represent. See AL & PO Corp. v. Am. Healthcare Capital, Inc.,
2015 WL 738694, at *3 (N.D. Ill. Feb. 19, 2015) (“[Alt]hough Plaintiff has proposed nationwide
classes, the class certification motion has not been briefed, and the court does not assume such a
broad class will in fact ultimately be certified.”). Given the putative class members’ nonparty
status at this stage, they will not be considered on the present motions to transfer. See Henrichs
v. Nova Biomedical Corp., 2014 WL 2611825, at *2 (S.D. Tex. June 11, 2014) (“[T]he law is
clear that in determining whether venue for a putative class action is proper, courts are to look
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only at the allegations pertaining to the named representatives.”) (internal quotation marks
omitted) (collecting cases); Joseph v. Liberty Nat’l Life Ins. Co., 2008 WL 2026006, at *1 (S.D.
Fla. May 9, 2008) (“[I]n considering venue, the inquiry must be focused only on the named
Plaintiffs and not the potential class members.”); George v. Kraft Foods Glob., Inc., 2007 WL
853998, at *6 (S.D. Ill. Mar. 16, 2007) (explaining that the putative class members’ residence “is
not a factor the Court normally considers in evaluating the propriety of transfer … absent some
evidence that a large number of unnamed members of the proposed class will be called as
witnesses at trial or otherwise desire to participate in these proceedings”); William B.
Rubenstein, Newberg on Class Actions § 6:36 (5th ed. 2016) (“In focusing only on the
representative parties, courts generally recognize that ‘venue is intimately connected to and
predicated upon the personal appearance of the party’ and that therefore, in class actions, the
relevant venue question is whether venue is proper as among parties who have in fact been
brought personally before the court as named parties to the action.”) (internal quotation marks
omitted).
Conclusion
For the foregoing reasons, Defendants’ motions to transfer are denied. This disposition
renders it unnecessary at this time to resolve the parties’ dispute over whether forum selection
clauses are permissible under ERISA or, for that matter, whether the Plan is governed by ERISA.
October 31, 2016
United States District Judge
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