Grady et al v. CenturyLink Communications, LLC

Filing 16

ORDER denying #8 Motion to Transfer. Signed by Judge Brian Morris on 11/24/2015. (SLL, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION

CV 15-85-BLG-BMM

LANE GRADY and JAMES
ELLINGTON,
Plaintiffs,
vs.

ORDER

CENTURYLINK
COMMUNICATIONS, LLC,
Defendant.

I. SYNOPSIS
Plaintiffs Lane Grady and James Ellington, on behalf of themselves and all
other similarly situated, bring a collective action against Defendant CenturyLink
Communications, LLC (“CenturyLink”). CenturyLink moves to transfer this action
to the Western District of Louisiana, Monroe Division, or, in the alternative, the
District of Colorado. (Doc. 8.) CenturyLink argues that transferring this action to
the District of Colorado, where Plaintiff Grady and many of the putative class
members live, or the Western District of Louisiana, where CenturyLink is

1

headquartered, would serve the interests of convenience and justice. Plaintiffs Lane
Grade and James Ellington oppose the motion. (Doc. 9.)
II. DISCUSSION
A district court may transfer a civil action to any other district or division
where the action may have been brought for the convenience of the parties and
witnesses. 28 U.S.C. § 1404(a). The parties agree that the action initially could
have been brought in the District of Colorado or the Western District of Louisiana.
Both districts would possess subject matter jurisdiction over the action given that
Plaintiffs have filed suit pursuant to Fair Labor Standard Act (“FLSA”). See 28
U.S.C. § 1331. Both districts also seem to possess personal jurisdiction over
CenturyLink given CenturyLink’s business contacts in each district.
The moving party bears the burden of proof to show why the forum should
be changed. Anderson v. Thompson, 634 F. Supp. 1201, 1204 (D. Mont. 1986).
The Court should deny the motion to transfer where the transfer only would shift
the inconvenience from the defendant to the plaintiff. Id. at 1204. Consequently,
the Court should not grant a transfer to an equally convenient forum. Id.
CenturyLink must make a strong showing of inconvenience to warrant upsetting
Plaintiffs’ choice of forum. Decker Coal v. Commonwealth Edison Co., 805 F.2d
834, 843 (9th Cir. 1986).

2

No uniform list of factors exists that a court should consider when
determining whether a change of venue would be in the interest of justice and for
the convenience of the parties and witnesses. Factors frequently considered
include: (1) plaintiff’s choice of forum, (2) the location where the relevant
agreements were negotiated and executed, (3) the convenience of the witnesses, (4)
the ability of the two forums to compel non-party witnesses to testify, (5) the
respective parties’ relative contacts with the forums, (6) the state that is most
familiar with the governing law, (7) the relative congestion in the two forums, (8)
the length of time action has already been pending in the transferor forum, (9) ease
of access to sources of proof, and (10) whether there is a “local interest” in either
of the forums. The Court’s analysis will focus on the factors argued by the parties.
A. The Plaintiffs’ Choice of Forum
Courts generally accord great weight to a plaintiff’s choice of forum. Lou v.
Belzberg, 834 F.2d 730, 739 (9th Cir. 1987). CenturyLink argues, however, that a
plaintiff’s choice of forum in a class action suit should be given “little or no
weight.” (Doc. 9 at 14.) It is true that a plaintiffs’ choice of forum should be given
“less weight” in a class action. Lou, 834 F.2d at 739. The Court should consider the
extent of both parties’ contacts to decide the weight to be assigned to the Plaintiffs’
choice of forum. Id. CenturyLink argues that the Court should give Plaintiffs’

3

choice of forum minimal weight when the majority of the putative class members
allegedly reside in places other than Montana.
The Court should afford only “minimal consideration” to Plaintiff’s choice
of forum when no operative facts occurred within the forum and the forum
possesses no interest in the parties or subject matter. Id. Both Plaintiffs and
CenturyLink have significant contacts in Montana. Plaintiff Ellington resides in
Montana. CenturyLink employed both Plaintiffs in Montana, and Plaintiffs allege
that they suffered damages caused by CenturyLink in Montana. The Court should
accord deference to Plaintiffs’ choice of forum given both parties’ significant
contacts in that forum.
B. The Location Where Relevant Agreements were Negotiated and
Executed
CenturyLink asserts that the relative agreements in this case consist of
employment agreements. CenturyLink argues that the parties executed these
agreements in Denver, Colorado. CenturyLink asserts that it stores most of these
documents in Denver, Colorado. CenturyLink argues that the value of documents
in the Denver, Colorado repository weighs in favor of a transfer.
Plaintiffs contend that the Court should give no consideration to the
employment agreements’ location. Plaintiffs argue that the agreements have no
bearing on the issues involved in this case. Plaintiffs argue that the Court only
should consider this factor in breach of contract claims.
4

Plaintiffs also assert that the documents, most of which are electronic, can
be obtained easily through electronic discovery means regardless of the forum
location. CenturyLink concedes that it keeps these records “electronically” or
“locally at [a] supervisor’s primary place of employment.” (Doc. 10 at 2.)
CenturyLink’s position seems to ignore the modern realities of document
production. Technological advances allow the transport of electronic documents
without creating a burden. Van Slyke v. Capital One Bank, 503 F. Supp. 2d 1362
(N.D. Cal. 2007). The Court considers this factor neutral.
C. Access to Proof
The parties make similar arguments regarding the location of documents in
addressing the “access to proof” factor. Courts have recognized the diminished
importance of this factor due to the ease of transporting electronic documents in
modern discovery. Id; Schultz v. Hyatt Vacation Marketing Corp., 2011 WL
768735 at *8 (N.D. Cal. Feb. 28, 2011). Furthermore, it appears that documents
have been stored in different locations across the nation. CenturyLink admits that it
retains some documents “at their supervisor’s primary place of employment.”
(Doc. 16 at 9.) CenturyLink’s discovery obligations seem to remain essentially the
same regardless of venue. Schultz, 2011 WL 768735 at *8. The Court considers
this factor neutral.

5

D. Convenience of Witnesses and Availability of Compulsory Process
“The availability of witnesses is obviously an important factor to be
considered in determining the propriety of a discretionary transfer.” Anderson, 634
F. Supp. at 1206. Courts should consider whether deposition testimony would be
adequate for those unwilling witnesses who fall outside the forum’s subpoena
power. Id. The Court does not require the proponent of transfer to provide a list of
names of witnesses and a description of their anticipated testimony, but “the lack
of specificity is an important consideration” in assessing the party’s request. Id.
CenturyLink has provided the Court a list of four “primary potential
witnesses” who are located in Monroe, Louisiana. (Doc. 9 at 19.) CenturyLink has
provided descriptions of each witness’s expected testimony. Id. The witnesses
would speak to CenturyLink’s corporate policies and procedures regarding
compensation, employee’s exempt status, and overtime requirements for
CenturyLink employees. It would be unfair to require a defendant to present
important evidence pertaining to the plaintiff’s allegations by way of deposition.
Anderson, 634 F. Supp. at 1207.
The Court should not grant a transfer based on “the mere fact a party wishes
to call witnesses who reside in a transferee district.” Id. The party must make a
“sufficient showing that the witnesses will not attend, or be severely
inconvenienced if litigation proceeds in the transferor forum.” Id. CenturyLink
6

admits that, at this stage of the case, it cannot determine whether any non-party
witnesses would be unwilling to testify in Montana. (Doc. 9 at 20.) CenturyLink
argues instead that this Court’s power to compel witnesses fails to extend into
Colorado or Louisiana, where it expects most of their witnesses to reside.
It appears that most of the major witnesses in this action will consist of the
parties themselves or the employees of CenturyLink. It seems likely that a
CenturyLink employee “will presumably be willing to testify . . . regardless of
inconvenience, precisely because he or she is a [CenturyLink] employee.” Sonoda
v. Amerisave Mortg. Corp., 2011 WL 2653565, at *5 (N.D. Cal. July 6, 2011).
Furthermore, it seems that some of the witnesses in this case live outside any of the
potential forums. In those instances, transferring the action would “simply shift the
inconvenience from some parties and witnesses to others. Senne v. Kansas City
Royals Baseball Corp., 2015 WL 2412245, at *60 (N.D. Cal. May 20, 2015.) This
factor weighs slightly in favor of transfer.
E. Relevant Contacts
CenturyLink argues that it possesses significantly greater contacts in
Colorado and Louisiana than in Montana. CenturyLink is headquartered in
Louisiana. CenturyLink alleges that more putative class members live and work in
Colorado than Montana. CenturyLink points out that Plaintiff Grady lives in
Colorado. Plaintiffs argue that the parties’ contacts are more significant in
7

Montana. Both Plaintiff Ellington and Plaintiff Grady lived and worked in
Montana during the relative claim period. Plaintiff Ellington still lives in Montana.
CenturyLink conducts business in Montana, and the cause of action arose from
conduct that occurred in Montana. This factor weighs against transfer.
III. CONCLUSION
Having considered all of the factors pertinent to the motion to transfer the
present action to the Western District of Louisiana, Monroe Division, or, in the
alternative, the District of Colorado, the Court has determined that the factors
weigh against transfer.
IT IS HEREBY ORDERED that the Defendant’s Motion to Transfer
Venue (Doc. 8) is DENIED.
DATED this 24th day of November, 2015.

8