Geismann v. ZocDoc, Inc.
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that defendant's motion to transfer case to the Southern District of New York [# 11 ] is granted. Defendant's combined motions to dismiss or stay [# 11 ], as well as its motion to strike class allegations [# 13 ], are denied as moot, without prejudice, to be reraised if appropriate. Plaintiff's motions to certify class [# 5 ] and for leave to file surreply in opposition to defendant's motion to strike [# 29 ] are also denied as moot, without prejudice, to be reraised if appropriate. IT IS FURTHER ORDERED that the Clerk of Court shall transfer this case to the United States District Court for the Southern District of New York. Signed by District Judge Catherine D. Perry on August 26, 2014. (BRP)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
RADHA GEISMANN, M.D., P.C.,
individually and on behalf of all others
Case No. 4:14CV472 CDP
MEMORANDUM AND ORDER
Plaintiff Radha Geismann, M.D., P.C., brought suit against ZocDoc, Inc., in
Missouri state court, alleging that she received two unsolicited faxes that
advertised ZocDoc’s services and failed to contain legally proper opt-out notices.
Geismann alleges that the sending of the faxes violated the Telephone Consumer
Protection Act (TCPA), 47 U.S.C. § 227 et seq., and Missouri common law against
conversion. Geismann apparently seeks to represent nationwide classes on both
claims and has moved to certify this case as a class action.
After removing the case to this court, ZocDoc moved to strike Geismann’s
class allegations; transfer this case to the United States District Court for the
Southern District of New York; dismiss Geismann’s claims altogether; and/or stay
the case pending FCC interpretation of a regulation under the TCPA. I find that
transfer is appropriate under 28 U.S.C. § 1404(a) because, among other things, the
only nonparty, nonexpert witnesses identified by either party live within the
Southern District of New York or are subject to its subpoena power. Because the
motion to transfer is dispositive, I will deny as moot the remaining motions filed
by both parties without prejudice to their right to refile them in the Southern
District of New York, if appropriate.
Plaintiff Geismann is a medical practice domiciled in St. Louis, within this
district. All of its employees are located in the state of Missouri. Each of its three
current employees has information about what entities had a business relationship
with Geismann or were permitted to send it faxes, as well as what faxes were
received. (See G. Geismann Decl., ¶¶ 3, 8–11.) Geismann alleges that in 2012 it
received two unsolicited faxes from ZocDoc, a medical advertiser, and that these
faxes did not contain a legally sufficient opt-out notice under the TCPA.
Defendant ZocDoc is a Delaware corporation whose principal place of
business is in New York City, within the Southern District of New York.
According to a declaration from ZocDoc’s Chief Operating Officer, ZocDoc
compiled its fax list from various sources and generally contacted entities to
request or confirm fax numbers before sending out faxes. It used another business,
Intellicomm, as its fax broadcaster. (See Kharraz Decl., ¶¶ 8–9.) Intellicomm’s
principal place of business is apparently in King of Prussia, Pennsylvania. (Id.)
As such, it is within the subpoena power of the Southern District of New York.1
ZocDoc argues for transfer to the Southern District of New York under 28
U.S.C. § 1404(a), which provides that “for the convenience of the 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.”2 Although the
grant or denial of a request to transfer is within the trial court’s sound discretion,
Hubbard v. White, 755 F.2d 692, 694 (8th Cir. 1985), the court also should keep in
mind that the moving party “bears the burden of proving a transfer is warranted.”
Trident Steel Corp. v. Oxbow Steel Int’l, LLC, No. 4:09CV1332, 2009 WL
3242045, at *4 (E.D. Mo. Oct. 5, 2009). “Merely shifting the inconvenience from
one side to the other . . . is not a permissible justification for a change of venue.”
Terra Int’l, Inc. v. Miss. Chem. Corp., 119 F.3d 688, 696–97 (8th Cir. 1997).
The Court takes judicial notice that Intellicomm headquarters is approximately 83 miles from
the courthouse of the Southern District of New York and therefore is within that court’s
subpoena power under Rule 45, Fed. R. Civ. P. See Int’l Controls & Measurements Corp. v.
Honeywell Int’l, Inc., 2013 WL 4805801, at *21 n.26 (N.D.N.Y. Sept. 9, 2013) (noting that the
100-mile “bulge” of Rule 45 is measured “as the crow flies,” citing Fed. R. Evid. 201(b)(2), and
taking judicial notice that Hartford, Conn. is within the subpoena power of New York state
Plaintiff does not dispute that this case might have been brought in the Southern District of
When determining whether to transfer a case under Section § 1404(a), a
court must consider (1) the convenience of the parties; (2) the convenience of the
witnesses; and (3) the interests of justice. Id. at 691.
But a court is not limited to these considerations. Instead, a court takes into
account “all relevant factors” and performs a “case-by-case evaluation of the
particular circumstances at hand.” Id. Indeed, in evaluating the convenience
factors, courts typically consider not only the convenience of parties and witness
(“including the willingness of witnesses to appear, the ability to subpoena
witnesses, and the adequacy of deposition testimony”) but also the accessibility of
records and documents, the location of the alleged illegal conduct, and the
substantive law to be applied. Id. at 696. However, the convenience of witnesses
remains the “primary, if not most important” of the convenience factors. May
Dep’t Stores Co. v. Wilansky, 900 F. Supp. 1154, 1165 (E.D. Mo. 1995).
In addition, while evaluating the interest of justice, courts consider judicial
economy, the plaintiff's choice of forum, the comparative costs to the parties of
litigating in each forum, each party’s ability to enforce a judgment, obstacles to a
fair trial, conflict of law issues, and the advantages of having a local court
determine questions of local law. Terra Int’l, 119 F.3d at 696.
Arguing for transfer, defendant ZocDoc points out that several potential
witnesses, including its employees and former employees, are located in the
Southern District of New York or within its subpoena power; its material records
and documents are at its principal place of business in New York City; the conduct
complained of occurred in New York; any resulting judgment will ultimately be
enforceable in New York where ZocDoc is located; and average time to disposition
is slightly quicker in the Southern District of New York. Although it recognizes
that a plaintiff’s choice of forum is entitled to deference, ZocDoc urges less
deference when a plaintiff chooses to represent a nationwide class.
Geismann responds that ZocDoc simply seeks to shift inconvenience from
itself to Geismann, and as such, that it has not made the “clear showing” required
for transfer. See Gen. Comm. of Adjustment v. Burlington N. R.R., 895 F. Supp.
249, 252 (E.D. Mo. 1995). It argues that its conversion claim is based on Missouri
law; its own employees are in Missouri; it received the faxes in Missouri; and
ZocDoc specifically intended its faxes to increase its business presence in St.
Louis. It points out that any records located in New York are easily transportable.
Further, it contends that ZocDoc has not explained the materiality of any testimony
by witnesses not under its control (that is, former employees or the fax
broadcaster) or shown that they would refuse to testify in this district.
As far as the convenience to the parties is concerned, the relative merit of
each forum is equal. If the case is transferred, employees of Geismann testifying
in court will have to travel to New York; if the case is not transferred, employees
of ZocDoc testifying in court will have to travel to Missouri. But in fact,
inconvenience caused to party-employees is not of “paramount concern” because
“it is generally assumed that witnesses within the control of the party calling them,
such as employees, will appear voluntarily in a foreign forum.” LeMond Cycling,
Inc. v. Trek Bicycle Corp., No. 08-1010, 2008 WL 2247084, at *3 (D. Minn. May
29, 2008) (quoting FUL Inc. v. Unified Sch. Dist. No. 204, 839 F. Supp. 1307,
1311 (N.D. Ill. 1993)); see also Terra Int’l, 119 F.3d at 696–97. Neither party has
argued that their employees would act otherwise. Similarly, the fact that
Geismann’s expert witness has apparently agreed to testify in Missouri is not
conclusive.3 Like employees, expert witnesses are “paid for their time and are
within the control of the party calling them.” Amoco Oil Co. v. Mobil Oil Corp.,
90 F. Supp. 2d 958, 961 (N.D. Ill. 2000).
The applicability of substantive law does not tip the scales either. The
TCPA is a federal statute, properly before any federal court, and as Geismann
Geismann does not state whether the expert would also testify in New York.
admits, there is no reason a federal court cannot properly interpret the longstanding
common law of another state. See Crabb v. GoDaddy.com, Inc., No. 07CV4040,
2010 WL 5890625, at *3 (W.D. Ark. Mar. 29, 2010) (weighing this factor as
neutral because “federal courts routinely apply and interpret laws of other states”).
Further, the references to “your area” in the faxes is irrelevant to Geismann’s
claims, which – once it is determined that a fax was an advertisement, which is not
apparently in dispute – are not based on specific content.
But most importantly, convenience to nonparty, nonexpert witnesses weighs
heavily in favor of transfer. The only such witnesses identified by either party
could not be compelled to testify by this Court, but could be so compelled by the
Southern District of New York. For example, ZocDoc’s Chief Operating Officer
identifies Benjamin Berman as a former employee who “could testify as to how the
fax marketing campaign was conducted.” According to the COO’s declaration,
Berman lives in the New York City area. (See Kharraz Decl., ¶ 6.) The COO also
declares that former employee Spenser Feldstein – whose contact information is on
the faxes at issue – could testify about the “calls he received in response to the
faxes.” (Id.) Although the COO only avers “[o]n information and belief” that
Feldstein lives in New York, Geismann has not disputed this. In addition, the fax
broadcaster Intellicomm is located in King of Prussia, Pennsylvania, within reach
of the Southern District’s subpoena power but not the subpoena power of this
Court. This counsels transfer. Fluid Control Pros., Inc. v. Aeromtive, Inc., No.
09CV1667, 2011 WL 620115, at *3 (E.D. Mo. Feb. 11, 2011) (transferring case to
district where nonparty witnesses could be compelled to testify because “[t]he
amenability of significant nonparty witnesses to subpoena at the respective forums
is an important factor to be considered”); see also Caterpillar, Inc. v. ESCO Corp.,
909 F. Supp. 2d 1026, 1031 (C.D. Ill. 2012) (transferring case to district to which
nonparty witnesses could travel more easily though they were not subject to that
district’s subpoena power). Geismann argues that ZocDoc has not laid out the
content of these witnesses’ testimony, but I am satisfied that identifying the
testimony as concerning the witnesses’ “personal involvement in the alleged
occurrences” is sufficient to support transfer. See C-Mart, Inc. v. Met. Life Ins.
Co., No. 4:13CV52 AGF, 2013 WL 2403666, at *3 (E.D. Mo. May 31, 2013).
The two remaining convenience factors also weigh in favor of transfer,
albeit less forcefully. Presumably the material records belonging to ZocDoc – the
fax lists, any records of contact with entities to confirm or request fax numbers,
communications with Intellicom – are more voluminous than those belonging to
Geismann, which include the two single-page faxes themselves and perhaps some
sort of written policy concerning solicitation of faxes. Although the location of
documents is not as important as it once was, it still deserves consideration. See in
re Apple, Inc., 602 F.3d 909, 914 (8th Cir. 2010). In addition, the conduct
complained of – which is the sending and not the receipt of the faxes at issue –
occurred in New York. See C-Mart, Inc., 2013 WL 2403666, at *4. These factors
suggest transfer is appropriate.
Interest of justice factors
For the reasons given below, I find that the interest of justice factors
(including judicial economy, the plaintiff's choice of forum, the comparative costs
to the parties of litigating in each forum, each party’s ability to enforce a judgment,
obstacles to a fair trial, conflict of law issues, and the advantages of having a local
court determine questions of local law) are not conclusive, and therefore, the
convenience to nonparty witnesses is dispositive in this case.
Several interest-of-justice factors typically considered do not play a role in
this case. See Terra Int’l, 119 F.3d at 691. Neither party argues that there would
be obstacles to a fair trial or conflicts of law in either forum or that there is any
special advantage to having a federal court sitting in Missouri interpret Missouri’s
common law prohibition on conversion. See Crabb, 2010 WL 5890625, at *3.
Likewise, any relative difference in total cost to the parties is negligible: it is more
costly for Geismann to litigate in New York and more costly for ZocDoc to litigate
in Missouri. See Burkemper v. Dedert Corp., No. 4:11CV1281 JCH, 2011 WL
5330645, at *3 (E.D. Mo. Nov. 7, 2011) (analyzing convenience to parties as
neutral factor because “[w]hether the case is transferred means only that this
inconvenience will fall on one party rather than the other”).
As far as judicial economy is concerned, ZocDoc emphasizes that cases are
decided, on average, two weeks more quickly in the Southern District of New York
than this Court. But that does not necessarily mean that transfer would promote
judicial economy. Moving to transfer a case necessarily takes time – sometimes
more than two weeks – as the sitting court must rule on the motion. On balance,
judicial economy does not favor transfer. Nonetheless, as ZocDoc points out, any
judgment issued in this case would eventually be enforced in New York. This does
weigh slightly in favor of transfer.
But as Geismann contends, a plaintiff’s choice of forum is usually accorded
considerable deference, particularly when the plaintiff has chosen its home district.
However, this deference is markedly diminished when the plaintiff proposes to
represent a nationwide class. See C-Mart, Inc., 2013 WL 2403666, at *4
(collecting cases). In such a case, there is no “unique local interest or contact with
the transferring district.” Genden v. Merrill, Lynch, Pierce, Fenner & Smith, Inc.,
621 F. Supp. 780, 782 (N.D. Ill. 1985). Geismann’s choice of forum may still
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warrant some deference. See C-Mart, 2013 WL 2403666, at *4; cf. Georgouses v.
NaTec Res., Inc., 963 F. Supp. 728, 730 (N.D. Ill. 1997) (“[B]ecause plaintiff
alleges a class action, plaintiff's home forum is irrelevant.”). When balanced
against the location of records and documents, the enforceability of any judgment
issued, and – most importantly – the convenience to nonparty witnesses, I find that
ZocDoc has made a clear showing that transfer is appropriate.
IT IS HEREBY ORDERED that defendant’s motion to transfer case to the
Southern District of New York [#11] is granted. Defendant’s combined motions to
dismiss or stay [#11], as well as its motion to strike class allegations [#13], are
denied as moot, without prejudice, to be reraised if appropriate. Plaintiff’s motions
to certify class [#5] and for leave to file surreply in opposition to defendant’s
motion to strike [#29] are also denied as moot, without prejudice, to be reraised if
IT IS FURTHER ORDERED that the Clerk of Court shall transfer this
case to the United States District Court for the Southern District of New York.
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 26th day of August, 2014.
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