Martinez v. Twin Garden Sales Inc et al

Filing 22

ORDER signed by Judge J P Stadtmueller on 3/23/10 granting 11 defendants' Motion to Transfer Case to U.S. District Court, North District of Illinois, Western Division. (cc: all counsel) (nm) [Transferred from Wisconsin Eastern on 3/23/2010.]

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
____________________________________________ M A R IA E. MARTINEZ, on behalf of herself and all others similarly situated, P l a i n t if f , v. T W IN GARDEN SALES, INC., M A R K F. HAYES and GARY PACK, D e fe n d a n ts . ____________________________________________ Case No. 09-CV-653

ORDER
O n July 2, 2009, plaintiff, an Illinois resident, filed a class action suit against T w in Garden Sales, Inc. ("TGS") (an Illinois corporation whose only office is also in Illin o is ) and against Mark Hayes and Gary Pack (both of whom are officers of TGS, a n d both of whom are Illinois residents). Plaintiff's first amended complaint, filed on J u ly 16, 2009, alleges that defendants were plaintiff's employer, and that defendants vio la te d the Migrant and Seasonal Agricultural W o rk e r Protection Act ("AW P A "), 29 U .S .C . §§ 1801 et seq., the Illinois Minimum W a g e Law ("IMW L "), 820 ILCS 105/1 e t seq., the Illinois W a g e Payment and Collection Act ("IW P C A " ), 820 IlCS 115/1 et s e q ., and W isc o n s in 's W a g e Payment and Collection Laws ("W W P C L "), W is. Stat. § § 109.01 et seq. On August 17, 2009, defendants filed a motion to dismiss, p u rsu a n t to Fed. R. Civ. P. 12(b)(2) & (6), or to transfer this case to the Northern D istric t of Illinois, W e s te rn Division. In response, plaintiff filed a motion seeking to a m e n d the complaint yet again. Because this case clearly belongs in the Northern

D is t r ic t of Illinois, the court will order the case transferred. Transfer of this case re n d e rs moot defendants' motion for dismissal pursuant to Rule 12(b)(2), lack of p e rs o n a l jurisdiction. The court will not enter an order regarding defendants' Rule 1 2 (b )(6) motion, or plaintiff's motion to amend complaint; it is best to allow the court to which this case is transferred to resolve such motions as it deems appropriate. B AC K G R O U N D N a m e d plaintiff, Maria Martinez ­ a resident of McHenry County, Illinois ­ a lle g e s that she was employed by defendants as a seasonal agricultural worker from J u ly 9, 2007, through August 18, 2007. Martinez alleges that TGS, doing business a s Twin Gardens Farms Inc. ("TGF"),1 employed her to work at its farms in Illinois a n d W a lw o rth , W is c o n s in . She asserts that defendants required her and putative c la s s members to meet at the defendants' Harvard, Illinois, location at 5:40 a.m., and th a t defendants would transport the workers to the various work sites, and then back to Harvard, Illinois, at the end of the day. Martinez claims that TGF, which is also a n Illinois corporation whose only office is in Illinois, and TGS violated the AW P A by: 1 ) failing to provide required disclosures to plaintiff in writing and in Spanish; 2) fa ilin g to post required posters, in Spanish; 3) failing to inform plaintiff of her rights u n d e r the AW P A ; 4) failing to keep accurate records of plaintiff's hours worked; and

Defendants have subm itte d evidence dem o n s tr a tin g that TGS and TGF are separate legal entities, a n d that neither have an ownership interest in the other. Additionally, defendants have subm itte d evidence s h o w in g that Martinez's W - 2 for the year 2007 clearly indicated that her em p lo ye r was TGF (as opposed to T G S ) . W h ile plaintiff attem p ts to add TGF as a defendant in the second am e n d e d com p la in t, she offers no e x p la n a tio n for the failure to include TGF, the actual employer, in either of the first two com p la in ts .

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5 ) providing misleading and false information to plaintiff regarding the terms and c o n d itio n s of employment. Martinez also alleges that the failure to properly pay her c o n s titu te d a violation of the above cited Illinois statutes and W is c o n s in statute. AN AL Y S IS A c c o rd in g to 28 U.S.C. § 1404(a): "For the convenience of parties and w itn e s s e s , in the interest of justice, a district court may transfer any civil action to any o th e r district or division where it might have been brought." Id. The decision to tra n s fe r a case requires an "individualized, case-by-case consideration of c o n ve n ie n c e and fairness," Stewart Org., Inc. v. Rioch Corp., 487 U.S. 22, 29 (1 9 8 8 ), and "therefore, is committed to the sound discretion of the trial judge," Coffey v . Van Dorn Ironworks, 796 F.2d 217, 219 (7th Cir.1986). A court considering transferring a case to a different venue must determine: "1 ) whether the action could have been brought in the alternative forum; (2) whether th e alternative forum would be more convenient for the parties and witnesses; and (3 ) whether the transfer would be in the interest of justice." Kelley Co., Inc. v. C e n tra l Nat. Ins. Co. of Omaha, 598 F. Supp. 350, 351 (D. W is . 1984). The parties b o th agree that this action could have been brought in the alternative forum, the N o rth e rn District of Illinois, W e s te rn Division. Thus, it only remains for the court to e v a lu a te the latter two considerations.

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I.

C o n v e n ie n c e of the Alternative Forum I n considering the convenience of the alternative forum, the court must

c o n s id e r five factors: 1) the plaintiff's choice of forum; 2) the situs of material events; 3 ) the relative ease of access to sources of proof in each forum; and 4) the c o n ve n ie n c e to the parties relative to their respective residences and abilities to bear th e expense of trial in a particular forum. Harley-Davidson, Inc. v. Columbia Tristar H o m e Video Inc., 851 F. Supp. 1265, 1270 (E.D. W is . 19 9 4 ) . M a rtin e z argues that her choice of forum is entitled to "a large measure of d e fere n c e ." Kelley Co., 598 F. Supp. at 353. W h ile such may typically be the case, it is not so in the instant situation. Plaintiff is not a resident of W is c o n s in , she is s u in g as a class representative, and the causes of action did not arise in this forum. T h u s , her choice of forum is not entitled to substantial deference. Countryman on B e h a lf of Upstate New York Pension and Retirement Fund v. Stein Roe & Farnham, 6 8 1 F. Supp. 479, 482-83 (N.D.Ill. 1987) ("The plaintiff's choice is given less weight w h e n the plaintiff is a non-resident of the chosen forum, when the plaintiff sues d e riva tive ly or as a class representative, and where the cause of action did not c o n c lu s ive ly arise in the chosen forum."); see also Sinochem Intern. Co. Ltd. v. M a la y s ia Intern. Shipping Corp., 549 U.S. 422, 430 (2007) "W h e n the plaintiff's c h o ic e is not its home forum, however, the presumption in the plaintiff's favor `applies w ith less force,' for the assumption that the chosen forum is appropriate is in such c a s e s `less reasonable.'") (citation omitted). -4-

In the instant case, substantially all of the material events occurred in Illinois. P la in tiff alleges a violation of 29 U.S.C. § 1831(a) which requires a recruiter to make c e rta in disclosures, upon request, to agricultural workers at the time the offer of e m p lo ym e n t is made. Plaintiff also alleges a violation of § 1831(b), which requires c e rta in informational posters to be posted at the place of employment. Plaintiff a lle g e s a violation of § 1831(c), which requires employers to keep accurate records o f the number of hours employees worked. Plaintiff also alleges that defendants, by m a k in g false and misleading statements as to the terms and conditions of e m p lo y m e n t , violated § 1831(d). Apart from plaintiff's AW P A claims, plaintiff also a s s e rts violations of the IMW L , the IW P C A , and the W W P C L . Plaintiff alleges that d e fe n d a n ts failed to compensate plaintiff for all hours worked, and thus lowered p la in tiff's rate of pay below the minimum wage set by the IMW L . Plaintiff also a lle g e s that defendants failed to pay plaintiff for all hours worked, and thus violated th e IW P C A and the W W P C L . Plaintiff alleges that the violations of the IMW L ,

IW P C A , and W W P C L occurred as the result of a common practice and policy im p le m e n te d by defendants. Because plaintiff is an Illinois resident (as, it seems, a re a significant number of the putative class), and defendants' offices ­ where p a yro ll is kept and policies are determined ­ are in Illinois, and two of the three fa r m s 2 at which plaintiff and putative class members worked are in Illinois, d e fe n d a n ts point out that if any violation of the above statutes had occurred, they

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To be clear, it is TGF, not TGS, that operates the farm s .

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w o u ld have occurred in Illinois. c o n t ra r y .3

Plaintiff offers no compelling argument to the

In considering the relative ease of access to sources of proof in each forum, th e court notes that the sources of proof in the instant case will predominately be d o c u m e n ta ry evidence and testimonial evidence. It is undisputed that all relevant d o c u m e n ta ry evidence in this case is stored in McHenry County, Illinois, at the TGS a n d TGF offices. Plaintiff's only argument regarding the matter is a citation to G e n e ra c Corp. v. Omni Energy Systems, Inc., 19 F. Supp. 2d 917 (E.D. W is .) for the p re m is e that: "[i]n cases like this, much of the proof will be documentary, and d o c u m e n ts such as contracts and financial records are easily copied and transferred to either forum." Id. at 922. However, Generac was a case dealing with the

in te rp re ta tio n of a distributorship agreement. In contrast, the instant case deals with fa c tu a l occurrences involving numerous individuals over a several month period. It is very likely that the majority of proof will be in the form of testimony ­ both from the p u ta tive class members, as well as from defendants and TGS and TGF's employees a n d former employees. Since it appears at this juncture that the overwhelming m a jo rity of prospective witnesses will be Illinois residents, the alternative forum p ro vid e s greater ease of access to testimonial evidence. Additionally, the

The only argum e n t to the contrary offered by plaintiff is that "Defendant's [sic] . . . perm itte d Plaintiff, a lo n g with the class m e m b e r s , to work in W a lw o r t h , W is c o n s in without properly com p e n s a t in g her." (Pl. Br. O p p . Mot. Transfer at 13). This only addresses the W W P C L claim and one of the AW P A claim s . Additionally, it is unavailing, because to the extent that such is true about W is c o n s in , it is doubly true about Illinois, where T G F operates two farm s as opposed to the one farm it operates in W is c o n s in .

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d o c u m e n t s in the instant case will involve payroll records, and perhaps entire p e rso n n e l files, of every class member. It is undisputed that all of these records are in Illinois. Clearly such documentary evidence is considerably more substantial than a contract and some financial records. Also, the alternative forum clearly provides e a s ie r access to these records and files. A s was the case with each of the previously discussed factors, plaintiff had little to add regarding the convenience to the parties, relative to their respective re s id e n c e s , of trial in a particular forum. Plaintiff merely states: "The travel time b e tw e e n Defendants' location and Milwaukee is not all that much different than the tra ve l time to Rockford." (Pl. Br. Opp. Mot. Transfer at 13). However, the court n o te s that the travel distance from TGS and TGF's office in Harvard, Illinois, to the fe d e ra l courthouse in the alternative forum in Rockford, Illinois, is only 29.4 miles, w h ic h is less than half the distance as it is from their office to the federal courthouse in Milwaukee, which is a 75.5 mile trek. Harvard, Illinois, is also where, according to plaintiff's allegations, each of the putative class members met each day when e m p lo ye d by defendants. Thus, though not conclusive, it is certainly more

re a s o n a b le to believe that the majority of the class members live closer to Rockford th a n to Milwaukee. In fact, Martinez herself resides in McHenry County (the county in which Harvard, Illinois, is located), and thus, even if she lives in the northeastern s e c tio n of McHenry County, she still lives a shorter distance from Rockford than from M ilw a u k e e . Indeed, considering the parties, the prospective parties (TGF and the -7-

p u ta tive class members), and the likely witnesses (putative class members and TGS a n d TGF's employees and former employees), it would appear that Rockford would b e a more convenient forum for all involved. II. W h e t h e r Transfer would be in the Interest of Justice In determining whether transfer would be in the interest of justice, the court c o n s id e rs : 1) judicial economy; 2) the expeditious administration of justice; and 3) th e availability of compulsory process over possibly unwilling witnesses. PKWare, In c . v. Meade, 79 F. Supp. 2d 1007, 1019 (E.D. W is . 2000). In the instant case, judicial economy favors transfer. The case is in its

n a s c e n t stages, and thus transfer would not result in any duplication of effort. In d e e d , transferring the case will save time, judicial resources, and the resources of th e parties, for keeping the case in this court would require protracted initial litigation, a s plaintiff has not even demonstrated personal jurisdiction as yet over the d e fe n d a n ts named in the first two complaints.4 Transfer of the case will remedy all o f the pending personal jurisdiction hurdles. Additionally, this case calls for the application of Illinois law to a larger degree t h a n it calls for the application of W is c o n s in law. Plaintiff has alleged violations of tw o Illinois statutes, and one W is c o n s in statute. Additionally, as defendants have p o in te d out, if there is a conflict of law controversy, it is almost certain that Illinois law

The court is not ruling that plaintiff would be unable to show personal jurisdiction, only that resolving th e inquiry would require additional efforts (both from the court and the parties) and tim e .

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w o u ld apply, since Illinois is the state in which almost all of the acts or omissions g ivin g rise to this case occurred. See Drinkwater v. America Family Mutual Ins. Co., 2 0 0 6 W I 56, ¶ 40, 714 N.W .2 d 568 (holding that nonforum law applies where it is c le a r that nonforum contacts are of greater significance). Thus, the fact that Illinois la w will predominate over W is c o n s in law in this case also is a facet of judicial e c o n o m y that weighs in favor of transfer. P la in tiff argues that judicial economy does not weigh in favor of transfer, and t h a t "W is c o n s in and its residents have a significant investment in ensuring that b u s in e s s practices are properly conducted in this state." (Pl. Br. Opp. Mot. Transfer a t 15). W h ile W is c o n s in certainly does have such an interest, Illinois does as well. C o n s id e r in g the fact that all the parties involved in this case are Illinois residents, a n d that more business activity took place in Illinois than in W is c o n s in , it is clear that Illin o is has a greater interest in the resolution of this case than does Wisconsin. A d d itio n a lly, plaintiff has demanded a jury trial in this case; however, "[j]ury duty is a burden that ought not to be imposed upon the people of a community which has n o relation to the litigation." Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947). W h ile the instant litigation might not have "no relation" to this community, it certainly h a s very little. This is especially true considering that the laws that have allegedly b e e n violated are all worker protection laws, but there is no indication that any of the w o rk e rs were residents of W is c o n s in . Certainly, the home state of the workers and

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th e companies involved has a much more significant relationship to the instant litig a tio n . In considering "the expeditious administration of justice," the court finds no ra tio n a le for determining that the alternative forum could not administer justice just a s , if not more so, expeditiously than this court. Plaintiff points to differences b e tw e e n the Northern District of Illinois and the Eastern Division of W is c o n s in c a s e lo a d and median time from filing to trial. (Pl. Br. Opp. Mot. Transfer at 14). H o w e v e r, these figures include the Northern District of Illinois, Eastern District, which in c lu d e s Chicago and its suburbs, where obviously the caseload and back-log are h ig h e r. There is no evidence that the Northern District of Illinois, W e s te rn Division, h a s either a heavier caseload or a longer time from filing to trial than the Eastern D is tric t of W is c o n s in . Indeed, considering that this branch of the district court is a s s ig n e d more civil cases than any other branch of the district court, it is very likely th a t the alternative forum has a lower caseload than does this branch of the court. In order to determine whether material witnesses would be subject to c o m p u ls o ry process by the court, the court has to have some idea who the w itn e s s e s will be. Considering the nature of the case, it appears as though

w itn e s s e s will consist of employees and former employees of TGS and TGF, and p la in tiff and her class members (if the class is certified). Defendants point to former s e a s o n a l agricultural workers (those that are not part of the class certified) as the g ro u p over which compulsory service would be necessary, as such individuals are -10-

n o longer employed by TGF.

Defendants argue that these former seasonal

e m p lo ye e s will be much more likely to live in Illinois than in W is c o n s in , and thus w o u ld be beyond this court's subpoena power, but within that of the alternative foru m . Typically, the court would not give much weight to such speculative

a rg u m e n t, but would instead require defendants to identify such potential witnesses w ith a greater deal of certainty. However, in the instant case, the party that would b e able to identify such potential witnesses is TGF (such witnesses' former e m p lo ye r). However, TGF is not a defendant in this case because plaintiff failed to n a m e TGF as a defendant in either of her first two complaints, despite the fact that p la in tiff's W-2 clearly identified TGF as plaintiff's employer. Thus, to the extent that th e lack of specificity as to such material witnesses is the result of plaintiff's repeated fa ilu r e to name the correct party, the court will lend some weight to defendants' a r g u m e n t as to the likely residences of these potential witnesses. C O N C L U S IO N E a c h of the factors considered weighs in favor ­ to differing degrees ­ of tra n s fe r rin g this case to the Northern District of Illinois, W e s te r n Division. This, e s p e c ia lly when coupled with the lack of deference due this particular plaintiff's c h o ic e of forum, clearly shows that transfer is appropriate in this case. Because tra n s fe r of the case renders defendants' challenge to personal jurisdiction moot, the c o u rt will deny defendants' motion for dismissal pursuant to Rule 12(b)(2). However,

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th e court makes no findings regarding defendant's motion for dismissal pursuant to R u le 12(b)(6), nor to plaintiff's motion for leave to amend. A c c o r d in g ly , IT IS ORDERED that defendants' Motion to Transfer Case to U.S. District C o u rt, Northern District of Illinois, W e s te rn Division (Docket # 11) be and the same is hereby GRANTED. T h e clerk of the court is directed to take all appropriate steps to effectuate the t ra n s f e r . D a te d at Milwaukee, W is c o n s in , this 23rd day of March, 2010. BY THE COURT:

J .P . Stadtmueller U .S . District Judge

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