Penrose et al v. Buffalo Trace Distillery, Inc. et al
OPINION MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Defendants Motion to Transfer Venue [Docket No. 17 ] is DENIED. Signed by District Judge Henry Edward Autrey on 5/30/17. (KJS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
STEPHEN PENROSE, JAMES THOMAS,
JOSEPH GUARDINO, and DANIEL POPE,
on behalf of themselves and all others similarly
BUFFALO TRACE DISTILLERY, INC.,
OLD CHARTER DISTILLERY CO. and
SAZERAC COMPANY, INC.,
) Case No. 4:17cv294 HEA
OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Motion to Transfer Venue to
the Western District of Kentucky, [Doc. No. 17]. Plaintiffs oppose the Motion. For
the reasons set forth below, the Motion is denied.
Plaintiff filed this putative class action based on alleged violations of various
state consumer protection laws. The Court’s jurisdiction is based on diversity of
citizenship, 28 U.S.C. § 1332(d). Defendants seek to transfer venue to the Western
District of Kentucky pursuant to 28 U.S.C. § 1404(a). Because Plaintiffs’ choice
of venue is entitled to considerable deference, and Defendants have not met their
burden of showing the convenience of the parties and witnesses and the interest of
justice strongly favor transfer to the Western District of Kentucky, the Court will
deny the motion.
Facts and Background
Plaintiffs claim in this putative nationwide class action Defendants
misrepresented that Old Charter bourbon has been aged 8 years through
implication because the number 8 remains on its bottles. Previously, the bottles
stated that the bourbon had been aged 8 years. The current bottles no longer state
that the bourbon is “aged” 8 “years,” rather, the bottles just contains the number 8
in the same location as the old bottles.
Plaintiffs claim they were misled to believe that because the number 8 was
still on the bottles, the bourbon continued to be aged 8 years. They claim
Defendants purposely left the number 8 in the same location on the bottles to lead
consumers to believe the bourbon had been aged 8 years when in fact, the bourbon
is no longer aged for 8 years.
Standard of Review
A motion to transfer venue is governed by 28 U.S.C. § 1404(a), which
provides that “a district court may transfer any civil action to any other district or
division where it might have been brought “[f]or the convenience of parties and
witnesses, [and] in the interests of justice.” The purpose of section 1404(a) is to
“prevent the waste of time, energy and money and to protect litigants, witnesses
and the public against unnecessary inconvenience and expense.” Van Dusen v.
Barrack, 376 U.S. 612, 616 (1964).
When deciding a motion to transfer under section 1404(a), the Court
considers three factors: (1) the convenience of the parties; (2) the convenience of
the witnesses; and (3) the interest of justice. Terra Int'l, Inc. v. Miss. Chem. Corp.,
119 F.3d 688, 691 (8th Cir. 1997). These factors merit “individualized, case-bycase consideration,” in which courts “weigh in the balance a number of casespecific factors.” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988). To
prevail, the moving party must demonstrate the balance of the factors “strongly
favors” transfer. See, e.g., Burks v. Abbott Labs., No. 08–3414, 2008 WL 4838720,
at *1 (D. Minn. Nov. 5, 2008) (quoting Brockman v. Sun Valley Resorts, Inc., 923
F. Supp. 1176, 1179 (D. Minn. 1996)). “The Eighth Circuit has declined to offer an
‘exhaustive list of specific factors to consider’ in making the transfer decision and
has directed the courts to weigh any ‘case-specific factors’ relevant to convenience
and fairness to determine whether transfer is warranted. In re Apple, Inc., 602 F.3d
909, 912 (8th Cir. 2010) (internal citation omitted). The party requesting transfer
has the burden to show that the balance of these factors favors it. Dube v. Wyeth
LLC, 943 F. Supp. 2d 1004, 1007 (E.D. Mo. 2013) (citing Moretti v. Wyeth, No.
07–CV–3920 DWF–SRN, 2008 WL 732497 at *1 (D. Minn. March 17, 2008)).”
Christenson v. Citimorgage, Inc., No. 4:16-CV-1142 (CEJ), 2016 WL 7230432, at
*2 (E.D. Mo. Dec. 14, 2016).
“Ultimately, the decision to transfer a case is committed to the discretion of
the district court.” Luckey v. Alside, Inc., No. 15–2512, 2016 WL 1559569, at *4
(D. Minn. Apr. 18, 2016) (quoting Jacques v. Dakota, Minn. & E. R.R. Corp., No.
07–248, 2008 WL 835651, at *1 (D. Minn. Mar. 27, 2008)).
Here, the parties agree Plaintiffs could have brought this action in the
Western District of Kentucky. The motion, thus, turns on whether Defendants have
met their burden of showing the balance of the section 1404(a) factors strongly
Motion to Transfer Venue
Deference to Plaintiffs’ Choice of Forum
Both the convenience and interest of justice factors require consideration of
Plaintiffs' choice of forum. Luckey, 2016 WL 1559569, at *4; Howard v. Judge
Law Firm, No. 09–1644, 2010 WL 2985686, at *4 (D. Minn. July 26, 2010). “In
general, federal courts give considerable deference to a plaintiff's choice of forum.”
Terra Int'l, Inc., 119 F.3d at 695.
One of the representative Plaintiffs, Stephen Penrose, is a citizen of
Missouri. Penrose has purchased the subject bourbon in Missouri. The other
representative Plaintiffs are citizens of North Carolina, New York and South
Carolina. No plaintiff is from Kentucky. Defendants Buffalo Trace and Old
Charter Distillery Co are Kentucky corporations. Defendant Sazerac Company,
Inc. is a Louisiana corporation. It is alleged that Defendants sell the subject
Defendants argue that all plaintiffs, except Penrose will not be
inconvenienced by litigating in Kentucky over Missouri, since none of the other
plaintiffs are located in Missouri. This argument, however, fails to acknowledge
that the out of Missouri Plaintiffs chose to litigate this action in Missouri;
Defendants’ argument therefore appears to be their speculation and is not based in
any concrete evidence. The Court is not at liberty to order transfer based upon the
proposed transferee forum being more convenient to one party at the expense of
the opposing party. Section 1404(a) allows or transfer to a more convenient
forum, not to a forum likely to prove equally convenient or inconvenient, and a
transfer should not be granted if the effect is simply to shift the inconvenience to
the party resisting the transfer Graff v. Qwest Commc'ns Corp., 33 F. Supp. 2d
1117, 1121 (D. Minn. 1999). Christenson, 2016 WL 7230432, at *3.
Convenience of the Parties and Witnesses
The Court must next consider the convenience of Plaintiffs’ chosen forum.
When examining convenience, the Court considers: “(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.” Terra Int'l, Inc., 119 F.3d at 696).
Defendants argue venue in the Western District of Kentucky would
convenience both parties because the majority of the evidence and witnesses are in
Kentucky. Defendants argue venue should be transferred to the Western District of
Kentucky because most of their witnesses are located in Kentucky. Plaintiffs argue
that because most of the witnesses are employees of Defendants, they could be
brought to Missouri by Defendants, and/or could provide testimony via
depositions. “[T]he Court can assume that [employee witnesses] ‘will appear
voluntarily in a foreign forum.’ ” Luckey, 2016 WL 1559569, at *5 (quoting Austin
v. Nestle USA, Inc., 677 F. Supp. 2d 1134, 1138 (D. Minn. 2009)).
The parties have not identified any non-party witnesses that would be
required to travel to Missouri or provide deposition testimony. Thus, the
convenience of the witnesses weighs in favor Plaintiffs at this point. For these
reasons, the Court finds that Defendants have not shown the convenience of the
parties and witnesses strongly favors transfer.
Likewise, although Defendants’ corporate offices are located in Kentucky,
there is no dispute that the records which will be needed in this action are stored
electronically, and therefore this aspect of the analysis neither favors nor detracts
from a finding of transfer. The parties can exchange discovery through electronic
means, thereby eliminating any inconvenience which may have, in a previous time,
been a significant factor in the analysis.
Interests of Justice
The Court must also consider whether transferring venue would promote the
interests of justice. When examining the interests of justice, “courts generally
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) obstacles to a fair trial, (6) conflict of law issues, and (7)
the advantages of having a local court determine questions of local law.” Howard,
2010 WL 2985686, at *4.
Although Defendants argue that Plaintiffs appear to be forum shopping, the
Court does not reach the same conclusion. While counsel may represent other
plaintiffs in other jurisdictions, none of the plaintiffs in this action are involved in
the other cases. As such, the Court cannot make any assumptions regarding forum
shopping based on counsels other lawsuits.
With regard to the other factors to consider in the interests of justice inquiry,
the Court concludes that neither party has presented any compelling reason the
interests of justice would not be served in either federal court. As such, the Court
concludes that there are no factors that strongly favor transfer.
Balance of the Factors
The Court, in its discretion, denies the motion to transfer. Plaintiffs’ choice
of venue is entitled to deference, and Defendants have not met their burden of
showing the convenience of the parties and witnesses and the interest of justice
strongly favor transfer.
IT IS HEREBY ORDERED that Defendants’ Motion to Transfer Venue
[Docket No. 17] is DENIED.
Dated this 30th day of May, 2017.
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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