C-Mart, Inc. v. Metropolitan Life Insurance Company et al

Filing 45

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendant Metropolitan Life Insurance Company's Motion to Dismiss or Transfer Case to the Southern District of Florida, joined by Storick, (Doc. No. 15) is GRANTED. IT IS FURTHER ORDERED that the Motion of Defendants Storick Group Co., The Storick Group Corporation, and Scott R. Storick to Dismiss Based on Lack of Personal Jurisdiction or Dismiss/Transfer Case to the Southern District of Florida (Doc. No. 31) is GRANTED as to the motion to transfer and DENIED as moot as to the motion to dismiss for lack of personal jurisdiction. IT IS FURTHER ORDERED that this action shall be transferred to the United States District Court for the Southern District of Florida pursuant to 28 U.S.C. § 1404(a). Signed by District Judge Audrey G. Fleissig on 5/31/2013. (NCL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
C-MART, INC.,

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Plaintiff,
v.
METROPOLITAN LIFE INSURANCE
COMPANY, et al.,
Defendants.

Case No. 4:13CV00052 AGF

MEMORANDUM AND ORDER
This matter is before the Court on Defendant Metropolitan Life Insurance
Company’s Motion to Dismiss or Transfer Case to the Southern District of Florida1 (Doc.
No. 15) and Motion of Defendants Storick Group Co., The Storick Group Corporation,
and Scott R. Storick to Dismiss Based upon Lack of Personal Jurisdiction or
Dismiss/Transfer Case to the Southern District of Florida (Doc. No. 31). For the reasons
set forth below, the Court shall grant the motions to transfer.
I. BACKGROUND
On January 10, 2013, Plaintiff, C-Mart, Inc. (“C-Mart”), filed this putative class
action complaint under the Telephone Consumer Protection Act of 1991 (“TCPA”), as
amended by the Junk Fax Prevention Act of 2005 (“JFPA”), 47 U.S.C. § 227, et seq.
(Class Action Compl. ¶ 2, ECF No. 1.) Plaintiff, a Missouri corporation, contends that
Defendants, Metropolitan Life Insurance Company, Storick Group Co., The Storick
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Defendants The Storick Group Corporation, Storick Group Co., and Scott R. Storick
(collectively “Storick”) join in this motion.
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Group Corporation, Scott R. Storick, and John Does 1-10 have sent, and continue to send,
unsolicited advertisements via facsimile transmissions in violation of the JFPA. (Id. at ¶
2, 8-14.)
On August 24, 2012, counsel for Plaintiff C-Mart, the Anderson + Wanca law
firm, filed a substantively identical class action complaint in the United States District
Court for the Southern District of Florida (“Florida Lawsuit”). Environmental Progress,
Inc. v. Metropolitan Life Insurance Co., Storick Group Co., The Storick Group
Corporation, Scott R. Storick, and John Does 1-10, Case No. 9:12-cv-80907-DMM (S.D.
Fla. 2012). Plaintiff Environmental Progress, Inc. (“EPI”) withdrew its class action
allegations and proceeded on an individual basis on January 14, 2013. (Pl.’s Combined
Resp. in Opp’n Ex. 3, ECF No. 35-3.) On April 12, 2013, three days before the
scheduled bench trial, EPI filed a Notice of Voluntary Dismissal, which the judge granted
on that same date. (Pl.’s Supplemental Combined Resp. in Opp’n Ex. 1, ECF No. 38-1;
Notice of Trial, Environmental Progress, Inc. v. Metropolitan Life Ins. Co., et al., Case
No. 9:12-cv-80907-DMM, ECF No. 126.)
In the case presently before this Court, Defendant Metropolitan Life Insurance
Company (“MetLife”) filed a Motion to Dismiss or Transfer Case to the Southern District
of Florida on February 14, 2013, arguing that the first-filed rule mandated dismissal or
transfer of the action to the Southern District of Florida or, in the alternative, that this
Court should transfer the case to the Southern District of Florida pursuant to 28 U.S.C. §
1404(a). On March 1, 2013, Defendants Storick Group Co., The Storick Group
Corporation, and Scott R. Storick (collectively “Storick”) filed a Motion to Dismiss for
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Lack of Personal Jurisdiction or Dismiss/Transfer Case to the Southern District of
Florida. Storick contends that it has insufficient minimum contacts with the State of
Missouri to satisfy personal jurisdiction. In addition, Storick raises the same legal
argument as Met Life and asserts that this case should be transferred to the Southern
District of Florida under either the first-filed rule or 28 U.S.C. § 1404(a).
In Plaintiff’s Combined Response in Opposition, it argues that the first-filed rule
does not apply because the Florida Lawsuit is not a class action suit and that Defendants
cannot make the requisite showing that transfer under 28 U.S.C. § 1404(a) is proper.
Further, Plaintiff contends that this Court has personal jurisdiction over Storick under the
Missouri long-arm statute and in compliance with due process. Plaintiff later asserts that
the motions to dismiss or transfer due to the pendency of the Florida Lawsuit should be
denied as moot due to the dismissal of that case.
II. DISCUSSION
A. First-Filed Rule
Defendants argue that this Court should dismiss or transfer the case to Florida,
where counsel Anderson + Wanca first filed a virtually identical case. Plaintiff asserts
that the motion is now moot by virtue of the Order on Notice of Voluntary Dismissal,
dismissing the case with prejudice. The Court agrees that the first-filed argument is now
moot and declines to address the motions to dismiss or transfer on the basis of the firstfiled rule. See Espey & Assoc., Inc. v. Principal Mfg. Corp., No. 1:08-CV-2117, 2009
WL 721740, at *1 (N.D. Ohio March 18, 2009) (finding the first-to-file argument moot
where other district court dismissed the first-filed suit).
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B. 28 U.S.C. § 1404(a)
Next, Defendants argue that this case should be transferred to the Southern District
of Florida under 28 U.S.C. § 1404(a), which provides, “[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.” Plaintiff asserts that
Defendants are unable to meet the requirements of the statute such that the motion to
transfer should be denied. The undersigned finds that transfer to the Southern District of
Florida under § 1404(a) is appropriate.
When determining whether to transfer a case pursuant to 28 U.S.C. § 1404(a),
courts must consider: “1) the convenience of the parties; 2) the convenience of the
witnesses; and 3) the interests of justice.” Dube v. Wyeth LLC, ___ F. Supp. 2d ___, No.
4:12CV1912 ERW, 2013 WL 1163498, at *2 (E.D. Mo. March 20, 2013) (citing Terra
Int’l, Inc. v. Miss. Chem. Corp., 119 F.3d 688, 691 (8th Cir. 1997)). Whether to grant or
deny a request to transfer a case under §1404(a) is within the trial court’s sound
discretion. Hubbard v. White, 755 F.2d 692, 694 (8th Cir. 1985) (citation omitted).
“[C]ourts are not limited to just these enumerated factors, and they have recognized the
importance of a case-by-case evaluation of the particular circumstances presented and of
all relevant case-specific factors.” Dube, 2013 WL 1163498 at *2 (citing In re Apple,
Inc., 602 F.3d 909, 912 (8th Cir. 2010)). However, courts give great deference to a
plaintiff’s choice of forum, and a party requesting transfer under § 1404(a) bears the
burden of demonstrating that the transfer is justified. Anheuser-Busch, Inc. v. All Sports
Arena Amusement, Inc., 244 F. Supp. 2d 1015, 1022 (E.D. Mo. 2002) (citation omitted).
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Defendants argue that §1404 factors heavily favor transfer because the Southern
District of Florida is a more convenient venue for the parties, as only the named Plaintiff
has a connection to Missouri; the key witnesses are located in Florida; and the interests of
justice favor transfer because Plaintiff’s attorneys are forum-shopping. Plaintiff, on the
other hand, contends that the factors this court must consider weigh against transfer in
this case.
Courts take into consideration several factors when weighing convenience and the
interests of justice under § 1404(a). To evaluate the balance of convenience, district
courts consider:
(1) the convenience of the parties, (2) the convenience of the
witnesses—including the willingness of witnesses to appear,
the ability to subpoena witnesses, and the adequacy of
deposition testimony, (3) the accessibility to records and
documents, (4) the location where the conduct complained of
occurred, and (5) the applicability of each forum state’s
substantive law.
Burkemper v. Dedert Corp., No. 4:11CV1281 JCH, 2011 WL 5330645, at *2 (E.D. Mo.
Nov. 7, 2011) (citing Terra Int’l, 119 F.3d at 696). In evaluating these factors, the
convenience of witnesses is the most important. The convenience of the witnesses is the
“’primary, if not most important’” of the convenience factors. Anheuser-Busch, Inc. v.
City Merchandise, 176 F. Supp. 2d 951, 959 (quoting May Dept. Stores Co. v. Wilansky,
900 F. Supp. 1154, 1165 (E.D. Mo.1995)).
Under the interest of justice category, the courts also consider:
(1) judicial economy, (2) the plaintiff’s choice of forum, (3)
the comparative costs to the parties of litigating in each
forum, (4) each party’s ability to enforce a judgment, (5)
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obstacles to a fair trial, (6) conflict of law issues, and (7) the
advantages of having a local court determine questions of
local law.
Burkemper, 2011 WL 5330645, at *2 (citing Terra Int’l, 119 F.3d at 696). Accordingly,
the Court will analyze the pertinent factors in determining Defendants’ motion to
transfer.
At the outset, no dispute exists as to whether Florida is a convenient forum.
Indeed, Anderson + Wanca litigated a substantially similar case against the same
Defendants in the Southern District of Florida through the pretrial stage. Other than the
named Plaintiff, C-Mart, none of the parties resides in or near Missouri. More
importantly, Defendants have demonstrated that the majority of the witnesses and
evidence is located in Florida. “Typically, ‘the party seeking the transfer must clearly
specify the essential witnesses to be called and must make a general statement of what
their testimony will cover.’” Merrick Bank Corp. v. Savvis, Inc., No. 4:08CV00674
ERW, 2008 WL 5146660, at *3 (E.D. Mo. Dec. 8, 2008) (quoting Graff v. Qwest
Commc’ns Corp., 33 F. Supp. 2d 1117, 1122 (D. Minn. 1999)). Defendants contend, and
Plaintiff does not dispute, that Robert Martino, who approached Storick with the faxing
scheme; Mr. Storick; Mr. Storick’s personal assistant; MetLife’s current and former
personnel working in the Ft. Lauderdale office where Storick worked; and several other
deposed witnesses are located in South Florida.2 Defendants also have attached the
witness lists and deposition designations from the Florida Lawsuit, which indicate that
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The Court also notes that Storick does not dispute the propriety of jurisdiction in
Florida. However, Storick has filed a well-reasoned motion to dismiss, asserting that this
Court does not have personal jurisdiction over any of the Storick Defendants.
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the “will-call” witnesses for the Defendants reside in South Florida. (MetLife’s Reply
Mem. Ex. C, ECF No. 37-3.) With regard to the essential witnesses, Defendant indicates
that they will testify as to their personal involvement in the alleged occurrences. Further,
Defendants note that they and Plaintiff’s attorneys have already deposed many witnesses
such that the testimony of these witnesses is readily apparent.
Defendants further contend, and the Court agrees, that witness availability is
uncertain, as most of the witnesses are outside the 100-mile subpoena power of this Court
under Federal Rule of Civil Procedure 45. This factor also weighs in favor of the motion
to transfer. See Dube, 2013 WL 1163498, at *4 (finding the convenience of non-party
witnesses a strong factor favoring transfer where key fact witnesses resided outside the
100-mile subpoena range and thus could be unavailable for live testimony at trial). While
Plaintiff argues that the parties could present video-taped depositions at trial, Defendants
correctly state that federal courts prefer live oral testimony. Griman v. Makousky, 76
F.3d 151, 153 (7th Cir. 1996). Although Plaintiff argues that Defendants have not
sufficiently identified the witnesses who will testify or set forth their testimonies, the
Court is satisfied with Defendants’ showing that the convenience of witnesses in this case
weighs heavily in favor of transferring the case to the Southern District of Florida.
Plaintiff also argues that Missouri is the most convenient forum because the tort
occurred in Missouri where Plaintiff received the fax. However, Defendants correctly
state that the TCPA prohibits a person from using “any telephone facsimile machine,
computer, or other device to send, to a telephone facsimile machine, an unsolicited
advertisement.” 47 U.S.C. § 227(b)(1)(C) (emphasis added). Thus, the alleged violation
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of the TCPA occurred in Florida, the state from which Storick sent the unsolicited fax.
This additional fact weighs in favor of granting Defendants’ motion to transfer.
In addition to convenience, the Court finds that the interest of justice factors
warrant transfer of this action. Plaintiff asserts that this Court should defer to the
Plaintiff’s forum choice of Missouri. The Court agrees that “federal courts give
considerable deference to a plaintiff’s choice of forum and thus the party seeking a
transfer under section 1404(a) typically bears the burden of proving that a transfer is
warranted.” Terra Int’l, 119 F.3d at 695 (8th Cir. 1997). The deference given to
Plaintiff’s choice of forum “is reduced, however, in a [ ] class action, where members of
the class are dispersed throughout the nation.” In re Global Cash Access Holdings, Inc.
Secs. Litig., No. 08 Cv. 3516, 2008 WL 4344531, at *7 (S.D.N.Y. Sept. 18, 2008); see
also Wald v. Bank of Am. Corp., 856 F. Supp. 2d 545, 549 (E.D.N.Y. 2012) (citations
omitted) (finding that litigating a class action suit with numerous diverse claimants
markedly diminished the class representative’s choice of forum because the class
representative was only one of many potential plaintiffs who could equally demonstrate
the right to litigate in their home courts); Berenson v. Nat’l Fin. Servs., LLC, 319 F.
Supp. 2d 1, 3 (D.D.C. 2004) (“[C]ertainly in a class action suit in which the plaintiffs
propose to represent a class of potential plaintiffs who reside throughout the country, the
plaintiffs’ choice of forum deserves less weight than it is typically given.”); Berman v.
Informix Corp., 30 F. Supp. 2d 653, 659 (S.D.N.Y. 1998) (noting that in cases with
multiple claimants and related class actions, choice of forum is given far less weight).

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Here, while the Court gives Plaintiff some deference with regard to its choice of
forum, the Defendants have sufficiently demonstrated that transfer is appropriate. As
previously stated, although Plaintiff resides in Missouri, the vast majority of witnesses
reside in Florida and have no connection to Missouri. Further, the events giving rise to
this litigation did not occur in Missouri. In addition, the Class Action Allegations in
Plaintiff’s Complaint indicate Plaintiff’s intention to bring the class action on behalf of
“[a]ll persons who (1) on or after four years prior to the filing of this action, (2) were sent
telephone facsimile messages of material advertising the commercial availability of any
property, goods, or services by or on behalf of Defendants . . . .”3 (Class Action Compl. ¶
23, ECF No. 1)
Finally, the Court finds that the interests of justice weigh heavily in favor of
transfer because Plaintiff’s choice of forum creates the perception of impermissible
forum shopping. Review of the Florida Lawsuit and the briefs and exhibits pertaining to
the motions to transfer demonstrate the likelihood that Plaintiff’s counsel, Anderson +
Wanca, dismissed the class allegations and the complaint in the Florida Lawsuit in order
to find a more favorable forum. See Thatcher v. Hanover Ins. Grp., Inc., 659 F.3d 1212,
1214 (8th Cir. 2011) (“[I]it is inappropriate for a plaintiff to use voluntary dismissal as an
avenue for seeking a more favorable forum.”); see also Deposit Nat’l Bank, Jackson,

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Plaintiff’s Amended Motion to Certify Class, attempting to define the class as only
residents of Missouri, does not tip the balance of factors toward the case remaining in this
district. Florida is where the alleged acts occurred, where the documents and servers
used are located, and where the party and nonparty witnesses are located. Indeed, the
plaintiff in the Florida Lawsuit was a South Carolina corporation residing in South
Carolina. (Notice of Activity in Florida Lawsuit Ex. B, ECF No. 30-2)
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Miss. v. Roper, 445 U.S. 326, 339-40 (1980) (recognizing the “problems raised by ‘forum
shopping’ by putative class representatives attempting to locate a judge perceived as
sympathetic to class actions”); Research Automation, Inc. v. Schrader-Bridgeport Int’l,
Inc., 626 F.3d 973, 979 n.2 (7th Cir. 2010) (stating that in transfer analysis, “certain
behavior may count against a plaintiff's choice of forum, such as where there is evidence
of forum-shopping or bad faith by a litigant”). Indeed, the Florida court, in granting
plaintiff EPI’s motion to drop its class allegations, noted that three days after the Florida
court denied plaintiff’s motion to modify the pretrial schedule, Anderson + Wanca
initiated another class action based on the same conduct against Defendants in Missouri
and that “the timing of the filing of the Missouri Action raises questions concerning
Plaintiff’s counsel’s pursuit of Junk Fax Protection Act litigation . . . .” (Notice of
Activity in Florida Lawsuit Ex. A pp. 2, 5, ECF No. 30-1)
In sum, the Court finds that Defendants have met their burden of demonstrating
that transfer to the Southern District of Florida under 28 U.S.C. § 1404(a) is appropriate
in this case. The convenience factors and the interests of justice strongly favor
transferring this case. As stated above, Plaintiff’s choice of forum is not entitled to
deference in this class action suit. Instead, the alleged acts occurred primarily in the State
of Florida; the Storick Defendants are located in Florida; the non-party witnesses, who
are not subject to this Court’s subpoena power, reside in Florida; and the documents and
servers are located in Florida. In addition, the perception of impermissible forum
shopping favors granting Defendants’ motion.
Accordingly,
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IT IS HEREBY ORDERED that Defendant Metropolitan Life Insurance
Company’s Motion to Dismiss or Transfer Case to the Southern District of Florida,
joined by Storick, (Doc. No. 15) is GRANTED.
IT IS FURTHER ORDERED that the Motion of Defendants Storick Group Co.,
The Storick Group Corporation, and Scott R. Storick to Dismiss Based on Lack of
Personal Jurisdiction or Dismiss/Transfer Case to the Southern District of Florida (Doc.
No. 31) is GRANTED as to the motion to transfer and DENIED as moot as to the
motion to dismiss for lack of personal jurisdiction.
IT IS FURTHER ORDERED that this action shall be transferred to the United
States District Court for the Southern District of Florida pursuant to 28 U.S.C. § 1404(a).

_______________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE

Dated this 31st day of May, 2013.

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