RISLEY v. CROSSMARK, INC.

Filing 12

ORDER THAT THIS ACTION IS TRANSFERRED TO THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF CALIFORNIA. THE MOTION FOR EQUITABLE TOLLING (DOC. NO.10) IS DENIED WITHOUT PREJUDICE TO RENEWAL BEFORE THE TRANSFEREE COURT, ETC. SIGNED BY HONORABLE NORMA L. SHAPIRO ON 6/27/2013. 6/27/2013 ENTERED AND COPIES E-MAILED(kk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
TERESA RISLEY

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v.
CROSSMARK, INC.

CIVIL ACTION

NO. 13-1372

ORDER
AND NOW, this 27th day of June, 2013, after considering the briefing and oral argument on the
rule to show cause why this action should not be transferred, and plaintiff’s motion for equitable tolling
and defendant’s response thereto, it appearing that:
a.

Plaintiff was a member of a proposed class in an action previously before this court, Postiglione
v. CROSSMARK, Inc., No. 11-960 (E.D. Pa.). The plaintiffs in Postiglione asked the court to
certify a collective action under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq.
See Postiglione v. CROSSMARK, Inc., No. 11-960, 2012 WL 5829793, at *1 (E.D. Pa. Nov. 15,
2012). The putative class members were retail representatives of defendant who alleged that
they were denied overtime pay in violation of the FLSA because defendant allegedly had
policies against paying retail representatives for three categories of time worked, i.e.: (1) that
retail representatives were not paid for time spent performing administrative tasks at home in
the mornings and evenings, including time spent loading and unloading their cars; (2) retail
representatives were not paid for time spent driving to their first work location and from their
last work location of the day; and (3) retail representatives were not paid for all of the time
spent working at the retail locations, but only for a pre-set “budgeted” time. Id. at *1-2. The
court found that the putative class members were not similarly situated within the meaning of
the collective action provision of the FLSA. Id. at *6-8. The court found that the Postiglione
plaintiffs had not proffered evidence of a national policy, but that any alleged unlawful policies
were imposed by individual regional supervisors. Id. The court denied certification of a
collective action and dismissed without prejudice all plaintiffs except for the first named
plaintiff, James Postiglione, as improperly joined under Federal Rule of Civil Procedure 20. Id.
at *9.

b.

Following this court’s ruling in Postiglione, forty-eight of the putative class members filed
individual actions in this court alleging similar violations of the FLSA. This action is one of
those forty-eight related actions.1 Because none of the forty-eight plaintiffs reside in this
district and because their claims apparently arose elsewhere, the court issued a rule to show
cause why this action and the related actions should not be transferred pursuant to 28 U.S.C.
§ 1404(a).

c.

A district court may transfer an action “ [f]or the convenience of parties and witnesses, in the
interest of justice.” 28 U.S.C. § 1404(a). The Court of Appeals has identified factors that

1

This court has since dismissed Postiglione for lack of prosecution because of James
Postiglione’s failure to obey the court’s pre-trial orders.

courts commonly consider in deciding to transfer an action under § 1404(a):
The private interests have included: plaintiff's forum preference 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).
The public interests have included: 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 v. State Farm Ins. Co., 55 F.3d 873, 879-80 (3d Cir. 1995) (citations omitted).
d.

Plaintiff prefers to pursue this action in this district; defendant supports transfer. This claim,
and the claims in all of the related cases before this court, arose elsewhere. This court decided
in Postiglione that the merit of the claims in this and the related actions likely depends on the
actions and policies of the plaintiffs’ individual supervisors, who worked out of their homeoffices around the country. No plaintiff in this or the related actions resides in this district or
performed his or her at-home work in this district. The witnesses that will likely be called in
this action include plaintiff’s regional supervisors and co-workers whose work was managed by
the same regional supervisors. No relevant books or records are located in this district. The
convenience of counsel is not a factor to be considered. Solomon v. Cont'l Am. Life Ins. Co.,
472 F.2d 1043, 1047 (3d Cir. 1973).

e.

Defendant does business nationwide and any judgment will be enforceable in plaintiff’s home
district. Plaintiff argues that the litigation will proceed more expeditiously and inexpensively if
this and the related actions are tried before the same court. However, this court has already
ruled that these actions do not share common facts that will make consolidation appropriate or
efficient; the merit of the claims likely depends on the policies promulgated by plaintiffs’
individual supervisors. There is a local interest that this action be decided in plaintiff’s home
district. Trying this and the forty-eight related cases in this district will result in undue
congestion in this court.

f.

Because none of the related actions involves claims arising in this district and because
consolidation of the actions in a single district will not result in increased efficiency, the
plaintiff’s preference to litigate in this court is the only factor weighing against transfer. The
action is more appropriately transferred to plaintiff’s home district where there is a local
interest in this litigation, and which will be more convenient for the witnesses.

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g.

Plaintiff has filed a motion to equitably toll the statute of limitations. Plaintiff asks that this
court apply equitable tolling from the time that plaintiff joined the Postiglione action.
Defendant has conceded, and this court agrees, that equitable tolling is unnecessary for the
period while Postiglione was pending. The law provides that for the purposes of the statute of
limitations, a claimant’s action is commenced on the day when a complaint is filed, if the
claimant is named as a plaintiff in the complaint, or on the day when his written consent to
participate in a collective action was filed with the court. 29 U.S.C. § 256. From the day that
plaintiff joined Postiglione until class certification was denied and plaintiff was dismissed from
that action, the statute of limitations was tolled. Equitable tolling is not necessary for that
period. However, once class certification was denied and plaintiff was dismissed from
Postiglione, the statute of limitations began to run once again. The court does not express an
opinion on the whether equitable tolling would be appropriate from that date until plaintiff filed
the complaint in this action. The question of equitable tolling is more appropriately decided by
the court in which this action will be tried.

It is therefore ORDERED that:
1. This action is TRANSFERRED to the United States District Court for the Middle District
of Tennessee.
2. The motion for equitable tolling (paper no. 10) is DENIED without prejudice to renewal
before the transferee court.
3. The Clerk of Court is directed to transmit the record in this action, together with a copy of
this Order, to the Clerk of the United States District Court for the Middle District of Tennessee.

/s/ Norma L. Shapiro
J.

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