Lang v. First Advantage Background Services Corp.
Filing
21
Opinion and Order signed by Judge James S. Gwin on 2/24/16 denying the defendant's motion to transfer or stay the instant case for the reasons set forth in this order. (Related Docs. 15 and 16 ) (D,MA)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
-----------------------------------------------------JOHN LANG,
Plaintiff,
vs.
FIRST ADVANTAGE BACKGROUND
SERVICES CORP.,
Defendant.
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CASE NO. 15-CV-2436
OPINION AND ORDER
[Resolving Doc. 16]
JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Plaintiff John Lang sues Defendant First Advantage Background Services Corp. (“First
Advantage”) for violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq. 1
First Advantage moves to transfer this case to the Western District of North Carolina, a venue
where another case involving similar claims is pending. Alternatively, First Advantage asks this
Court to stay the proceedings. 2 For the following reasons, the Court DENIES Defendant First
Advantage’s motion to transfer or stay.
I. Background
In January 2014 Lang started work at a Lowe’s home improvement store. In February
2014 Lowe’s conducted a background check on Lang through Defendant First Advantage. The
background check’s public records report erroneously said that Lang had a criminal background.
Lowe’s terminated Lang’s employment because of First Advantage’s mistaken report of a
criminal conviction. Additionally, First Advantage allegedly did not send Lang a notice of the
background check’s report.
1
2
Doc. 1.
Doc. 16. Plaintiff opposes. Doc. 20.
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Gwin, J.
Lang disputed the criminal history information, and First Advantage corrected the error.
Lowe’s rehired Lang. Lang was out of work for five days.
In November 2015, Lang filed the complaint in this case in the Northern District of
Ohio. 3 He brings two claims against First Advantage: (1) for failing to have reasonable
procedures to ensure accurate public records reporting in violation of 15 U.S.C. § 1681e on
behalf of himself and (2) for failing to provide contemporaneous reporting notifications, failing
to maintain procedures for providing accurate public records information to prospective
employers, and failing to have procedures to ensure accurate public records reporting on behalf
of himself and nation-wide putative class members under 15 U.S.C. § 1681k.
On January 27, 2016, Defendant First Advantage moved to transfer venue to the Western
District of North Carolina, or alternatively, stay the case pending the outcome of the somewhatsimilar Brown case. 4 First Advantage says that because the cases are similar and because Brown
was filed first, this Court should transfer venue under the first-to-file rule or under 28 U.S.C. §
1404(a).
On February 19, 2016, Plaintiff Lang filed his opposition. He argues that that the Court
should retain venue because the balance of equities does not favor transfer and because Plaintiffs
could not seek injunctive relief if the case is transferred to North Carolina.
II. Legal Standard
When the first-to-file rule has been properly raised, a district court presiding over
the second-filed case has four options: (1) dismiss the case without prejudice; 5 (2)
transfer the second-filed case to the district in which the first-filed case is
pending; (3) stay proceedings in the second-filed case while the first-filed court
3
Neither party disputes that the Northern District of Ohio is a proper venue for this case.
Brown et al v. Lowe's Companies, Inc. et al., Case No. 5:13-CV-79-RLV-DSC (W.D.N.C.). Lowe’s is not a
defendant in this case. However, LexisNexis Screening Solutions is now known as First Advantage Background
Services, the Defendant in this case.
5
Defendant does not seek a dismissal.
4
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Gwin, J.
decides whether to retain or relinquish jurisdiction; or (4) proceed without
interruption. 6
Under Sixth Circuit law,
The first-to-file rule is a well-established doctrine that encourages comity among
federal courts of equal rank. The rule provides that when actions involving nearly
identical parties and issues have been filed in two different district courts, “the
court in which the first suit was filed should generally proceed to judgment.” . . .
District courts have the discretion to dispense with the first-to-file rule where
equity so demands. 7
In deciding whether to transfer a case pursuant to the first-to-file rule, the Court looks to three
factors: “(1) the chronology of the actions; (2) the similarity of the parties involved; and (3) the
similarity of the issues at stake.” 8
Alternatively, under 28 U.S.C. § 1404(a), “[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.” The Sixth Circuit requires “a district court [to]
consider the private interests of the parties, including their convenience and the convenience of
potential witnesses, as well as other public-interest concerns, such as systemic integrity and
fairness, which come under the rubric of ‘interests of justice.’” 9
District courts also have discretion to grant stays in cases that have overlapping issues
with earlier-filed cases. 10
Finally, district courts may “proceed[] without interruption . . . when the district court has
determined that the first-to-file rule, either by its own terms or by a quirk of equity, does not
apply.” 11
6
NanoLogix, Inc. v. Novak, No. 4:13-CV-1000, 2013 WL 6443376, at *2 (N.D. Ohio Dec. 9, 2013).
Zide Sport Shop of Ohio, Inc. v. Ed Tobergte Associates, Inc., 16 F. App’x 433, 437 (6th Cir. 2001) (quoting In re
Burley, 738 F.2d 981, 988 (9th Cir.1984)).
8
Plating Resources, Inc. v. UTI Corp., 47 F.Supp.2d 899, 904 (N.D. Ohio 1999) (citing Alltrade, Inc. v. Uniweld
Products, Inc., 946 F.2d 622, 625–26 (9th Cir. 1991)).
9
Siegfried v. Takeda Pharm. N. Am., Inc., No. 1:10-CV-02713-JG, 2011 WL 1430333, at *2 (N.D. Ohio Apr. 14,
2011) (quoting Moses v. Bus. Card Express, Inc., 929 F.2d 1131, 1137 (6th Cir.1991)).
10
See NanoLogix, 2013 WL 6443376, at *3 (collecting cases).
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III. Discussion
Defendant First Advantage raises the first to file issue. Several of the factors, including
the timing of the filings here and in the Brown case 12 and some overlap of claims and parties,
favor transfer under the rule. However, the balance of the factors and other equitable factors
outweigh transfer.
First, there is not complete overlap in the parties. Plaintiff Lang is not a party in the
Brown case. Lowe’s is a party in the Brown case but not here. None of the Brown plaintiffs are
parties in this case.
Second, the Brown’s litigation has focused on the claims against Lowe’s, not on the
claims against Defendant First Advantage. Many of Brown’s claims and putative classes deal
with Lowe’s only. As a result, there are many issues at stake in the Lowe’s case that are not in
this case.
Finally, the equities do not favor a transfer in this case. Plaintiff Lang says that “The
Brown plaintiffs . . . . have prioritized their claims against Lowe’s, and left their class claims
against First Advantage to languish under the auspices of five different stay orders.” 13 The Court
finds this delay a strong reason against the motion to transfer. 14
Defendant First Advantage alternatively moves the Court to transfer the case under 28
U.S.C. § 1404(a). The § 1404(a) standard does not support the motion to transfer.
North Carolina is not a more convenient location for the parties. Neither party resides in
North Carolina. While North Carolina may be closer to Defendant’s home state of Georgia than
11
Id. (citing Hertel v. Bank of America, N.A., No. 1:11–CV–757, 2012 WL 4051220 (W.D. Mich. Sept.13, 2012).
Both parties acknowledge that the Brown case commenced before Plaintiff Lang filed the complaint in this case.
13
Doc. 20 at 12. See also Doc. 20-1 at 16–19.
14
Lang also argues that he will be foreclosed from seeking injunctive relief down the line because injunctive relief is
not available in FCRA actions in North Carolina. However, since Lang admits that it is still uncertain whether
FCRA injunctive relief is available in the Sixth Circuit and because Lang has not yet amended his complaint or filed
for injunctive relief, the Court will not consider this rationale in support of denying the motion to transfer.
12
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is the Northern District of Ohio, this does not justify a transfer. There will likely be witnesses to
be deposed or called to testify from the Northern District of Ohio, Western District of North
Carolina, and elsewhere in this case. This factor does not favor transfer.
As discussed above, the public interest concerns in this case, including the delay in
litigation in the transferee venue, also favor denying the motion to transfer.
For similar reasons, this Court finds a stay to be inappropriate in this case. The Brown
case has not advanced far since its 2013 filing. This delay means that Defendant will not be
unduly prejudiced by conducting discovery in this case. It also means that transfer will likely
result in undue delay in relief for Plaintiff, if he is entitled to any.
Therefore, in the interest of avoiding undue delay and because retaining the case will not
result in undue prejudice to Defendant, this Court will “proceed[] without interruption” 15 in the
litigation of this case. This Court DENIES Defendant First Advantage’s motion to transfer or
stay.
IT IS SO ORDERED.
s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE
Dated: February 24, 2016
15
NanoLogix, 2013 WL 6443376, at *3.
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