DIAZ-LEBEL v. TD BANK USA, N.A. et al

Filing 64

OPINION. Signed by Judge Jerome B. Simandle on 11/14/2017. (tf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

SARA DIAZ-LEBEL, on behalf of
herself and all others
similarly situated,
Plaintiff,

HONORABLE JEROME B. SIMANDLE

Civil Action No.
17-1611 (JBS/AMD)

v.
OPINION
TD BANK USA, N.A. and TARGET
CORP.,
Defendants.

APPEARANCES:
Adam Herbert Weintraub, Esq.
Daniel M. Hutchinson, Esq. (pro hac vice)
LIEFF CABRASER HEIMANN & BERNSTEIN LLP
250 Hudson Street, 8th Floor
New York, NY 10013
-andJarret L. Ellzey, Esq. (pro hac vice)
HUGHES ELLZEY, LLP
2700 Post Oak Blvd., Suite 1120
Galleria Tower I
Houston, TX 77056
-andAaron Siri, Esq. (pro hac vice)
SIRI & GLIMSTAD LLP
200 Park Avenue, 17th Floor
New York, NY 10166
Attorneys for Plaintiff
Susan M. Leming, Esq.
Jonathon L. Triantos, Esq.
BROWN & CONNERY, LLP
360 Haddon Avenue
Westmont, NJ 08108
-andBrian Melendez, Esq. (pro hac vice)
DYKEMA GOSSETT PLLC

4000 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402
Attorneys for Defendant

SIMANDLE, District Judge:
I.

INTRODUCTION
This matter is before the Court on the motion of Defendants

TD Bank USA, N.A. and Target Corporation (collectively,
“Defendants”) to change venue in a matter arising out of alleged
violations of the Telephone Consumer Protection Act (“TCPA”).
(Docket Item 20.) The principal issue before the Court is
whether the convenience of the parties and witnesses and the
interest of justice favor transfer of the action. In light of
ongoing litigation in the District of Minnesota involving
substantially-similar allegations, and for the reasons explained
below, the Court will grant the motion and transfer the case to
the United States District Court for the District of Minnesota.
II.

BACKGROUND
A.

This Action

On March 9, 2017, Plaintiff Sara Diaz-Lebel (“Plaintiff”)
filed a putative class action complaint against Defendant Target
Corporation (“Target”) and TD Bank USA, N.A. (“TD Bank”) in the
District of New Jersey. (Docket Item 1.) In the complaint,
Plaintiff alleges that “Defendants conducted (and continue to
conduct) wide-scale calling campaigns and repeatedly made
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unsolicited calls to consumers’ telephones without consent, in
violation of the Telephone Consumer Protection Act.” (Id. at ¶¶
2, 6.) Notably, “[a]t all times of the calls, Plaintiff did not
have a Target REDcard [and] never had a Target REDcard.” (Id. at
¶ 36.) Thus, Plaintiff seeks to represent a “wrong number class”
consisting of:
All persons in the United States whose (1) cellular
telephone number has been called by Defendants; (2) more
than once; (3) with an artificial or prerecorded voice
and/or an automatic telephone dialing system; and (4) did
not have a Target REDcard contract with Defendants, (5)
from March 9, 2013 to the date that class notice was
disseminated.
(Id. at ¶ 49.)
According to the complaint, Plaintiff is a resident of
Methuen, Massachusetts, Target is a corporation headquartered in
Minnesota and doing business in New Jersey and nationwide, and
TD Bank is a large national bank chain that maintains its
principal office in Cherry Hill, New Jersey and, inter alia,
“underwrites, funds, and owns Target Credit Card and Target
MasterCard consumer receivables in the U.S.” (Id. at ¶¶ 6-9.) As
relevant to this motion, Plaintiff avers that, “at all times
relevant to this lawsuit, Defendant[s] conducted and continue[]
to conduct business in [the District of New Jersey].” (Id.)
Defendants acknowledge they conduct business in this District,
but “deny that [either company] engaged in any transaction or

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occurrence in this judicial district with respect to this civil
action.” (Docket Item 13 at ¶¶ 8-9.)
B.

The Garcia Action in the District of Minnesota

On February 27, 2016, Israel Garcia, a Texas resident,
filed a similar putative class action against Target (but not TD
Bank) in the Southern District of Florida. Garcia v. Target
Corp., Case No. 0:16-cv-20727-JEM (S.D. Fl.). On July 28, 2016,
that action was transferred to the District of Minnesota on
Target’s unopposed motion. Id. (Docket Item 24).
In his complaint, Mr. Garcia alleged that Target violated
the TCPA by “making unauthorized automated telephone calls using
an ATDS (‘robocalls’) . . . to individuals who never provided
consent to be called by [Target].” Id. (Docket Item 1 at ¶¶ 1,
12). Mr. Garcia sought to represent:
All persons in the United States and its territories who,
within four years prior to the commencement of this
litigation, received one or more telephone calls from
Defendant on their cellular telephone through an automated
telephone dialing system where the called party was not the
same individual who, according to Defendant, provided the
phone number to Defendant.
Id. (Docket Item 1 at ¶ 21).
On November 3, 2016, the District Court for the District of
Minnesota granted a motion to stay the Garcia action, pending
the Court of Appeals for the D.C. Circuit’s decision in ACA
Int’l v. FCC, No. 15-1211 (D.C. Cir.). Garcia v. Target Corp.,
Case No. 0:16-cv-02574-MJD-BRT (D. Minn.) (Docket Item 55). As
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of the date of this Opinion, the Garcia action is still stayed
in the District of Minnesota.
C.

The Martinez Action in the District of New Jersey

On October 16, 2015, Charlene Martinez, a resident of
California, filed a class action complaint against TD Bank in
this District. Martinez v. TD Bank USA, N.A. & Target Corp.,
Case No. 1:15-cv-07712-JBS-AMD (D.N.J.) (Docket Item 1). On
March 1, 2016, Ms. Martinez filed an amended complaint, which
added Target as a defendant. Id. (Docket Item 25).
In her amended complaint, Ms. Martinez alleged that “TD
Bank, on its own and through its servicing agents, such as
Target, has called cellular telephone numbers it associates with
[a portfolio of credit card account serviced by Target], without
the express consent of the call recipients” in violation of the
Telephone Consumer Protection Act. (Id. at ¶¶ 1-2.) Ms. Martinez
sought to represent:
Every individual in the United States who: (1) received a
call on his or her cellular telephone; (2) placed by or on
behalf of Defendants; (3) relating to a Target credit card;
(4) using a dialer; and (5) where Defendants did not have
prior express consent to place such call at the time it was
placed.
(Id. at ¶ 39.)
On June 30, 2017, this Court granted summary judgment in
favor of Defendants on Ms. Martinez’s TCPA claim after finding
that Ms. Martinez had not put forth sufficient evidence to allow

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a reasonable finder of fact to conclude that she had revoked her
consent to be called by Defendants. Martinez v. TD Bank USA,
N.A. & Target Corp., 2017 WL 2829601, at *7 (D.N.J. June 30,
2017). Shortly thereafter, the parties filed a stipulation to
dismiss the entire case without prejudice, pursuant to Fed. R.
Civ. P. 41(a)(1)(A)(ii), which the Court so ordered on September
28, 2017. Martinez v. TD Bank USA, N.A. & Target Corp., Case No.
1:15-cv-07712-JBS-AMD (D.N.J.) (Docket Item 80). The Martinez
action is no longer pending before the Court.
III. DISCUSSION
Defendants ask this Court to exercise its discretion,
pursuant to 28 U.S.C. § 1404, and transfer this action to the
District Court for the District of Minnesota. Under § 1404(a), a
district court is authorized to “transfer any civil action to
any other district or division where it might have been
brought,” if the transfer serves “the convenience of the parties
and witnesses, [and is] in the interest of justice.” The Court
is vested with broad discretion under this statute to decide
whether a transfer of venue is appropriate given considerations
of fairness and convenience in the particular case. Stewart
Org., Inc. v. Rocoh Corp, 487 U.S. 22, 29 (1988). In evaluating
the propriety of transfer, courts consider “a wide range of
public and private interests.” Yocham v. Novartis Pharm. Corp.,
565 F. Supp. 2d 554, 557 (D.N.J. 2008). For the following
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reasons, the Court will exercise its discretion and transfer
this action to the District of Minnesota.
A.

Private Factors

The Third Circuit has identified several private interests
that trial courts consider in deciding motions to transfer:
plaintiff's forum choice as manifested in the original
choice; the defendant's preference; whether the claim arose
elsewhere; the convenience of the parties as indicated by
their relative physical and financial condition; the
convenience of the witnesses - but only to the extent that
the witnesses may actually be unavailable for trial in one
of the fora; and the location of books and records
(similarly limited to the extent that the files could not
be produced in the alternative forum).
Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995).
The Court finds that, on balance, the private interest factors
weigh towards transfer to the District of Minnesota.
First, the relevant course of conduct giving rise to
Plaintiff’s claims arose outside of this District. At all times
relevant to her claims, Plaintiff resided in Massachusetts.
(Docket Item 1 at ¶ 6.) TD Bank’s oversight and monitoring of
the Target credit-card operations occurs exclusively at a Target
facility located in Minnesota and the only call centers from
which Target places calls to its credit-card holders are located
in Minneapolis, Minnesota and Tempe, Arizona. (Wolf Decl. at ¶¶
3-7.) Indeed, Target does not have any call centers or equipment
in New Jersey from which to call Plaintiff. (Id. at ¶ 7.) Thus,
any alleged calls made by Defendants would have originated in
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Minnesota or Arizona and been received by Plaintiff in
Massachusetts.
Plaintiff makes much of the fact that TD Bank maintains its
principal office in Cherry Hill, New Jersey and that TD Bank
acquired Target’s credit-card portfolio in 2013. (Docket Item 25
at 10.) But Plaintiff has not adequately alleged that TD Bank’s
acquisition of Target’s REDcard portfolio has any bearing on
this case, especially in light of the fact that Plaintiff
alleges she never actually possessed a Target REDcard. (Docket
Item 1 at ¶ 36) Plaintiff has, therefore, not alleged any
relevant conduct in the District of New Jersey.
Where, as here, a plaintiff chooses a forum that is
different from its home forum, that choice “is entitled to less
deference.” Allianz Life Ins. Co. of N. Am. v. Estate of Bleich,
2008 WL 4852683, at *4 (D.N.J. Nov. 6, 2008). Additionally, “the
deference given to a plaintiff's choice of forum is reduced when
the operative facts that give rise to the action occur in
another district.” Id. (quoting Cameli v. WNEP–16 The News
Station, 134 F.Supp.2d 403, 405 (E.D.Pa.2001)). For the reasons
explained above, it is clear that all of the operative facts
that gave rise to the action in this case occurred in Arizona,
Minnesota, or Massachusetts. Accordingly, the “relevant course
of conduct” factor weighs heavily in favor of transfer.
Second, the convenience of the parties and witnesses
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similarly weighs in favor of transfer. While there is a general
presumption in favor of a plaintiff’s choice of forum, the
plaintiff’s choice may deserve less deference if he or she files
suit in a foreign forum “because it may be less reasonable to
assume that a venue which is not the plaintiff’s home forum is
convenient.” Burke v. Quarterly, 969 F. Supp. 921, 929 (D.N.J.
1997) (internal citation omitted). Plaintiff resides in Methuen,
Massachusetts, which is several hundred miles from Camden, New
Jersey. (Docket Item 25 at 15.) Accordingly, the Court is not
persuaded that the District of New Jersey is especially
convenient for Plaintiff compared with Minnesota.
Nor is the District of New Jersey convenient for
Defendants. As discussed supra, Target is headquartered in
Minneapolis, Minnesota. And, while TD Bank maintains its
principal office in Cherry Hill, New Jersey, Defendants are
defending this action together and have jointly moved for
transfer of this action to the District of Minnesota.
Accordingly, the Court does not find that the District of New
Jersey is convenient for either Target or TD Bank.
Plaintiff also has not identified a single witness located
in the District of New Jersey who would testify about the facts
giving rise to this case. It is undisputed that TD Bank
purchased Target’s REDcard credit-card portfolio in 2013 and
that TD Bank maintains its principal office in Cherry Hill, New
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Jersey. But, again, Plaintiff has not alleged that any decisions
related to TD Bank’s acquisition of Target’s credit-card
portfolio affect this case. Accordingly, it appears unlikely
that any potential TD Bank witnesses would be deposed in New
Jersey. The convenience of the parties and witnesses thus weigh
in favor of transfer to the District of Minnesota.
Third, this action does not “complement[] the Martinez
action,” as Plaintiff argues in its opposition brief. (Docket
Item 25 at 15.) Martinez involved a class of plaintiffs who
allegedly opened a Target credit card account and given prior
express consent to receive calls, but had, at some point
thereafter, revoked that consent. Martinez, Case No. 1:15-cv07712-JBS-AMD (D.N.J.) (Docket Item 25 at ¶ 25.) In this action,
on the other hand, Plaintiff seeks to represent a class of
individuals who never signed up for a Target REDcard and never
gave Target “prior express consent” to receive calls. The
classes are, therefore, substantially different. More
importantly, summary judgment was granted in favor of Defendants
on Ms. Martinez’s TCPA claims and the rest of the case was
dismissed without prejudice. The Martinez action, which is no
longer pending, does not weigh in favor of keeping the case in
the District of New Jersey.
For these reasons, the private factors weigh in favor of
transfer to the District of Minnesota.
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B.

Public Factors

In addition to the private factors discussed above, the
Third Circuit instructs the trial court to consider:
the enforceability of the judgment; practical
considerations that could make the trial easy, expeditious,
or inexpensive; the relative administrative difficulty in
the two fora resulting from court congestion; the local
interest in deciding local controversies at home; the
public policies of the fora; and the familiarity of the
trial judge with the applicable state law in diversity
cases.
Jumara, 55 F.3d at 879-80. For the following reasons, the Court
finds that the public factors are neutral.
First, a judgment in this case would be equally enforceable
in both New Jersey and Minnesota.
Second, the only claims here are federal-law claims arising
under the TCPA, so neither District Court would be more familiar
with “applicable state law.”
Third, the relative congestion of the respective courts'
dockets does not weigh heavily in favor or against transfer. The
Court recognizes the disparity between the median time to
disposition of a civil case by trial in the District of
Minnesota (30.1 months) and the median time to disposition by
trial in this District (38.8 months). See Administrative Office
of the United States Courts, Statistical Tables for the Federal
Judiciary, available at http://www.uscourts.gov/sites/default/
files/data_tables/ fcms_na_distprofile1231.2016.pdf.

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Nevertheless, because both Districts resolve relatively few
cases by trial, the median time to disposition for all cases,
not just trials, provides the more relevant measure of court
congestion and speed to resolution of the average case.
Fernandes v. Deutsche Bank Nat. Trust Co., 157 F. Supp. 3d 383,
391 n. 12 (D.N.J. 2015). The median time to disposition for all
cases differs only slightly between this District (8.0 months)
and the District of Minnesota (9.0 months) for the period ending
December 31, 2016. See id. With this slight disparity, it cannot
said that either District would dispose of this litigation
faster.
Accordingly, the relevant public factors do not tip the
scale either way.
C.

First-To-File Rule

The Court next considers the pendency of other related
putative class action cases. Under the so-called “first-to-file”
rule, “[i]n all cases of federal concurrent jurisdiction, the
court which first has possession of the subject must decide
it.” EEOC v. Univ. of Pa., 850 F.2d 969, 971 (3d Cir.1988). As
the Third Circuit has explained:
The party who first brings a controversy into a court of
competent jurisdiction for adjudication should, so far as
our dual system permits, be free from the vexation of
subsequent litigation over the same subject matter. The
economic waste involved in duplicating litigation is
obvious. Equally important is its adverse effect upon the
prompt and efficient administration of justice.
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Crosley Corp. v. Hazeltine Corp., 122 F.2d 925, 930 (3d Cir.
1941). “Consistent with these principles, the first-to-file rule
gives courts the power to stay, enjoin, or transfer a laterfiled case.” Allianz Life Ins. Co. of North America v. Estate of
Bleich, 2008 WL 4852683, at *3 (D.N.J. Nov. 6, 2008)
(citing Keating Fibre Intern., Inc. v. Weyerhaeuser Co., 416
F.Supp.2d 1048, 1052–1053 (E.D. Pa. 2006)).
The Garcia action pending in the District of Minnesota was
filed more than one year before Plaintiff filed suit in this
District. Unlike the Martinez action described supra, Garcia
involves substantially-similar claims to those brought by
Plaintiff in this case — that Target made unsolicited calls to
individuals who never owned a Target REDcard and had never given
“prior express consent” for such calls.1 Indeed, Susan Wolf, a
current employee at Target, is a potential witness in both
cases. (Docket Item 25 at 19.) Moreover, Plaintiff does not
argue that any exceptions to the first-to-file rule, such as bad

1

One notable difference between this action and the Garcia
action is that TD Bank is not named as a defendant in Garcia.
But as both parties apparently agree, liability for calls under
the TCPA attaches to the agent making the calls (Target), as
well as to the principal on whose behalf that agent is calling
(TD Bank). (Docket Item 1 at ¶ 19; Docket Item 29 at 5.) Thus,
the fact that TD Bank is not named as defendant in the Garcia
action is largely immaterial for determining whether or not
Target and/or TD Bank violated the TCPA.
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faith or forum shopping, apply here. See Allianz, 2008 WL
4852683, at *4. Since it appears this Court and the District of
Minnesota have concurrent jurisdiction over a substantiallysimilar class action, the first-to-file rule also weighs in
favor of transfer to the District of Minnesota.2
IV.

CONCLUSION
Plaintiff has not alleged any nexus between this District

and the allegations raised in her complaint. Additionally, a
substantially-similar class action was filed before this action
and is currently pending in the District of Minnesota - the
District where much of the relevant conduct took place and where
one of the parties resides. For these reasons, as well as those
explained above, Defendants’ motion will be granted and the case
will be transferred to the District of Minnesota. An
accompanying Order will be entered.

November 14, 2017
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

2

The Court is mindful that the Garcia action is currently
stayed pending decision by the D.C. Circuit in ACA Int’l, but
notes that oral argument was heard by the Court of Appeals more
than one year ago. Given the likelihood that ACA Int’l will be
decided shortly, the Court does not find that the stay in the
Garcia action weighs against transfer of this substantiallysimilar class action.
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