Esposito et al v. AIRBNB Action, LLC et al

Filing 44

MEMORANDUM Opinion and Order written by the Honorable Gary Feinerman on 11/20/2020.Mailed notice.(jlj, )

Case: 1:20-cv-02713 Document #: 44 Filed: 11/20/20 Page 1 of 8 PageID #:494

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BRITTON ESPOSITO, CHRISTIAN FRESNO,
BENJAMIN KUTYLO, ALLYSON ESPOSITO, and
ALLYSON ESPOSITO, as Mother and Next Friend of
JANIE DOE, a Minor,
Plaintiffs,
vs.
AIRBNB ACTION, LLC, AIRBNB PAYMENTS, INC.,
AIRBNB, INC., PUERTO PANAL FARM CLUB
PROPERTY ASSOCIATION AND ASSOCIATION
BOARD, MATIAS JOSE FERNANDEZ, LINDSAY
OLSON, and OTHER OWNER(S) AND/OR AIRBNB
HOSTS OF FARM HOUSE CHAKRA 82, BUENOS
AIRES, ARGENTINA,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

20 C 2713
Judge Gary Feinerman

MEMORANDUM OPINION AND ORDER
Five guests at an Airbnb vacation rental near Buenos Aires, Argentina seek to hold their
Argentine hosts and three Airbnb entities liable for an armed robbery that occurred during their
stay. Doc. 1. The Airbnb entities (collectively, “Airbnb”) move to compel arbitration under the
Federal Arbitration Act, 9 U.S.C. § 1 et seq., or, in the alternative, to transfer the suit to the
Western District of Arkansas under 28 U.S.C. § 1404(a). Doc. 27. The suit is transferred to the
Western District of Arkansas.
Background
In resolving a § 1404(a) motion, the court accepts the complaint’s well-pleaded factual
allegations, as supplemented by the parties’ evidentiary materials, and draws all reasonable
inferences in Plaintiffs’ favor. See Deb v. SIRVA, Inc., 832 F.3d 800, 808-09 (7th Cir. 2016).
The facts are set forth as favorably to Plaintiffs as the relevant materials permit. See ibid. In

1

Case: 1:20-cv-02713 Document #: 44 Filed: 11/20/20 Page 2 of 8 PageID #:495

setting forth the facts at this stage, the court does not vouch for their “objective truth.” Goldberg
v. United States, 881 F.3d 529, 531 (7th Cir. 2018).
Plaintiffs Britton Esposito and Christian Fresno were married on November 14, 2019 in
Buenos Aires. Doc. 1 at ¶ 45. Christian is a citizen of Argentina and resides there. Id. at ¶¶ 11,
19. Britton attends medical school in Argentina, but she is an American citizen who remains
domiciled in Cook County, Illinois, returning to her parents’ home there for three months each
year. Id. at ¶¶ 11, 18; Doc. 17 at 7. Plaintiff Allyson Esposito, Britton’s sister, attended the
wedding with her husband, Plaintiff Benjamin Kutylo, and their young daughter, Plaintiff Janie
Doe. Doc. 1 at ¶¶ 20-21, 44-45. Allyson, Benjamin, and Janie reside in Benton County,
Arkansas, id. at ¶¶ 11, 20-21, which lies in the Western District of Arkansas, see 28 U.S.C.
§ 83(b).
On or about October 3, 2019, Allyson used Airbnb’s website to rent the “Farm House,” a
vacation rental home in a gated community near Buenos Aires, for a three-day stay shortly after
the wedding. Doc. 1 at ¶¶ 42, 46-47; Doc. 28-1 at ¶ 33; Doc. 38-5 at 2. As Plaintiffs’ counsel
acknowledged during the motion hearing, Doc. 42, Allyson was in Arkansas when she made the
reservation. Defendants Matias Jose Fernandez and Lindsay Olson, who are Argentine citizens,
own the Farm House and rented it to Allyson over Airbnb. Doc. 1 at ¶¶ 17, 46.
Plaintiffs arrived at the Farm House on November 20. Id. at ¶¶ 49-54. Shortly before
midnight, four masked men invaded the home, brandished guns and knives, and bound and
gagged the adult plaintiffs. Id. at ¶¶ 57-58, 60-61, 63, 65. The assailants stole cash and jewelry
and then left. Id. at ¶¶ 60, 62-63, 68. Britton, Allyson, and Benjamin suffered injuries that
required medical treatment. Id. at ¶¶ 74-76; Doc. 17 at 7-8.

2

Case: 1:20-cv-02713 Document #: 44 Filed: 11/20/20 Page 3 of 8 PageID #:496

Discussion
Section 1404(a) provides: “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). Transfer under § 1404(a) “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 F. Supp. 1014, 1017 (N.D. Ill. 1998); see also Atl. Marine Constr.
Co. v. U.S. Dist. Court, 571 U.S. 49, 62 (2013) (“In the typical case … , 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, 978 (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
moving party 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). “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.
As to the first step of the transfer analysis, venue is proper in the Western District of
Arkansas, the proposed transferee court, because “a substantial part of the events or omissions
giving rise to the claim occurred” in that District. 28 U.S.C. § 1391(b)(2). In particular, Benton
County, Arkansas is where Allyson made the reservation for the Farm House, and it also is
where Allyson and Benjamin received medical treatment for the injuries they sustained during
the robbery. Doc. 1 at ¶¶ 46, 75-76; Doc. 17 at 8; see Schwarz v. Nat’l Van Lines, Inc., 317 F.

3

Case: 1:20-cv-02713 Document #: 44 Filed: 11/20/20 Page 4 of 8 PageID #:497

Supp. 2d 829, 834 (N.D. Ill. 2004) (holding that venue was proper in the District of Arizona
under § 1391(b)(2) given that the plaintiff “entered into the contract in Arizona”).
The next step in the § 1404(a) analysis looks to convenience. 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 nominally favors this
District. A plaintiff’s choice of forum typically deserves “substantial weight, particularly when
it is his home forum.” Baker v. Smith & Wesson Corp., 2019 WL 277714, at *3 (N.D. Ill. Jan.
22, 2019). This District is Britton’s home forum in that she is domiciled in Cook County, Doc. 1
at ¶ 11, although she spends nine months of the year in Argentina, Doc. 17 at 7. That said,
“where the conduct and events giving rise to the cause of action did not take place in the
plaintiff’s selected forum, the plaintiff’s preference has minimal value.” Dunn v. Soo Line R.
Co., 864 F. Supp. 64, 65 (N.D. Ill. 1994) (quotation omitted); see also Carter v. Baldwin, 2017
WL 3310976, at *2 (N.D. Ill. Aug. 3, 2017) (“[A] plaintiff’s choice of forum merits less
deference where the events giving rise to the suit did not occur there.”). Britton’s choice of
forum only weakly favors this District.
The other convenience factors favor the Western District of Arkansas. As noted, this
District is not the situs of any material event in this case, with the sole exception of some
medical treatment that Britton received after the robbery. Doc. 17 at 7. Most of the material
events occurred in Argentina. The most important event that took place in the United States—
Allyson’s reserving the stay at the Farm House—occurred in Arkansas. The locations where
each plaintiff agreed to Airbnb’s terms of service could also be significant, and it appears that no
plaintiff did so in this District. Doc. 28-2 at 71 (reflecting that Britton agreed to the terms of

4

Case: 1:20-cv-02713 Document #: 44 Filed: 11/20/20 Page 5 of 8 PageID #:498

service on April 29, 2019); Doc. 17 at 7 (Plaintiffs’ assertion that Britton lives in Cook County
only from December to February). Finally, Allyson and Benjamin received medical treatment in
Rogers, Arkansas. Doc. 17 at 8.
No significant sources of proof are in Illinois. Again, Argentina is home to most of the
key evidence. The domestic jurisdictions with important evidence are Arkansas, the home of the
only plaintiffs who reside full-time in the United States, and California, where Airbnb has its
headquarters. Doc. 1 at ¶¶ 12, 20-21. Plaintiffs point out that Airbnb’s third-party claims
adjuster has forwarded the pertinent case file to its office in Illinois. Doc. 38 at 4; Doc. 39-5 at
¶¶ 3, 5. It is unclear what exactly that file contains, and Plaintiffs did not submit a claim to the
adjuster before filing this lawsuit. Doc. 39 at ¶ 2; Doc. 39-5 at ¶¶ 4-6. In any event, the presence
of those records in Illinois has little weight because they can be easily transported. See Moore v.
Magiera Diesel Injection Servs., Inc., 2019 WL 2502029, at *3 (N.D. Ill. June 17, 2019) (“The
location of documentary evidence does not affect the analysis, because in this day and age,
documents can easily be transferred from place to place.”).
The convenience of witnesses and parties similarly weighs in favor of the Western
District of Arkansas as the only domestic jurisdiction with a significant connection to this suit.
Allyson and Benjamin, two of the adult plaintiffs, reside in Arkansas. They received treatment
from medical providers in Arkansas who also could be material witnesses. Britton lives most of
the year in Argentina, and all other parties and non-party witnesses are in Argentina as well.
Plaintiffs argue that the Northern District of Illinois is nevertheless the more convenient forum
because O’Hare International Airport is better for international travel than “any airport in
Arkansas.” Doc. 38 at 5-6. But neither O’Hare nor Fayetteville’s Northwest Arkansas National
Airport has any direct flights to Buenos Aires. See Chi. Dep’t of Aviation, International Non-

5

Case: 1:20-cv-02713 Document #: 44 Filed: 11/20/20 Page 6 of 8 PageID #:499

stop Daily Departures (Sept. 2020),
https://www.flychicago.com/SiteCollectionDocuments/O%27Hare/MyFlight/INTLnonstops.pdf;
Nw. Ark. Nat’l Airport Auth., Direct Flights from XNA (2020),
https://www.flyxna.com/destinations. Buenos Aires is a long journey from both Arkansas and
Illinois, but at least Allyson and Benjamin would not need to travel if this case were tried in the
Western District of Arkansas. In sum, the convenience factors favor transfer.
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 interest-of-justice factors are “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). Considered together, those factors favor the Western District of Arkansas.
As to the first factor, the expected speed of case resolution is faster in the Western
District of Arkansas. There is little difference in the median time from filing to disposition: 11.2
months in this District, and 10.8 months in the Western District of Arkansas. See Admin. Office
of the U.S. Courts, United States District Courts—National Judicial Caseload Profile 47, 55
(June 30, 2020),
https://www.uscourts.gov/sites/default/files/data_tables/fcms_na_distprofile0630.2020.pdf. But
the median time from filing to trial is 41.3 months in this District and only 14.3 months in the
Western District of Arkansas. Ibid.
The second factor, familiarity with applicable law, is neutral. Airbnb’s terms of service
provide that, for United States residents, the terms are interpreted in accordance with California

6

Case: 1:20-cv-02713 Document #: 44 Filed: 11/20/20 Page 7 of 8 PageID #:500

law. Doc. 28-2 at 48, § 21.1. As to claims unrelated to the terms of service, Plaintiffs have not
identified any difference in the substantive state law that might ultimately apply. Nothing
indicates that the law governing this dispute would be more familiar to this court than to a judge
of the Western District of Arkansas.
The third and fourth factors—the desirability of resolving the controversy in each locale
and the relationship of each community to the controversy—strongly favor transfer. Again, the
only full-time United States residents allegedly harmed by Defendants’ actions live in Arkansas,
and the Farm House reservation was made from Arkansas. The Western District of Arkansas’s
community has a greater stake in the litigation.
The attentive reader will notice that the court has skipped one aspect of the § 1404(a)
analysis. Section 1404(a) may be deployed only if venue is proper in the district where the case
was filed. See Arthur R. Miller, 15 Federal Practice and Procedure § 3844 (4th ed. 2020)
(“Transfer is possible under Section 1404(a) only if the transferor court is a proper venue under
the applicable venue provisions.”). It is unnecessary in this instance to determine whether venue
is proper in this District, however, because if venue were improper, the court would transfer this
case to the Western District of Arkansas under § 1406(a), which allows transfer from a district
where venue is improper to a district where venue is proper. See 28 U.S.C. § 1406(a) (“The
district court of a district in which is filed a case laying venue in the wrong division or district
shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in
which it could have been brought.”); In re LimitNone, LLC, 551 F.3d 572, 575 (7th Cir. 2008).
The one remaining fly in the ointment is choice of law. If a case is transferred under
§ 1404(a), the transferor state’s choice-of-law rules govern, while if a case is transferred under
§ 1406(a), the transferee state’s choice-of-law rules govern. See Steen v. Murray, 770 F.3d 698,

7

Case: 1:20-cv-02713 Document #: 44 Filed: 11/20/20 Page 8 of 8 PageID #:501

701 (8th Cir. 2014); Gerena v. Korb, 617 F.3d 197, 204 (2d Cir. 2010); see also Edwardsville
Nat. Bank & Tr. Co. v. Marion Labs., Inc., 808 F.2d 648, 650 (7th Cir. 1987) (assuming without
deciding that transferee choice-of-law rules apply after a transfer under § 1406(a)). So it may
matter in some cases whether a suit is transferred under § 1404(a) or under § 1406(a).
It is unnecessary to resolve that question here because Airbnb effectively concedes that
venue is proper in this District. Plaintiffs argue that venue lies in this District under 28 U.S.C.
§ 1391(b)(1), which provides venue in “a judicial district in which any defendant resides.”
Doc. 17 at 5. For venue purposes, Airbnb is deemed to reside “in any judicial district in which
[it] is subject to the court’s personal jurisdiction with respect to the civil action in question.” 28
U.S.C. § 1391(c)(2). The venue question thus turns on whether this court has personal
jurisdiction over Airbnb. A defendant may consent to personal jurisdiction, see Heller, 883 F.2d
at 1290, and Airbnb essentially does so here by seeking a § 1404(a) transfer rather than a
§ 1406(a) transfer, Doc. 27 at ¶ 5. In so doing, Airbnb forfeited, if not waived, any argument
that venue does not lie in this District.
Conclusion
Airbnb’s § 1404(a) motion to transfer is granted, and the suit is transferred to the Western
District of Arkansas. The other aspects of Airbnb’s motion are denied without prejudice to
renewal in the transferee court.

November 20, 2020

___________________________________
United States District Judge

8