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Smith v. Real Page, Inc.

United States District Court, E.D. Texas, Sherman Division

June 25, 2018




         Before the Court is Defendant's Motion to Dismiss for Improper Venue, or Alternatively, to Transfer Venue to the Northern District of Texas (Dkt. #8). After reviewing the relevant pleadings and motions, the Court finds that the motion should be denied.


         This case concerns an action for damages under the Fair Credit Reporting Act (“FCRA”). In June 2014, Plaintiff Julian Smith applied for housing at Southgate Towers (“Southgate”), located in Miami Beach, Florida. Southgate required Plaintiff to undergo a background check to determine his eligibility, and requested a consumer report from Defendant Real Page, Inc. On or about June 5, 2014, Defendant sent Plaintiff a notice indicating that Southgate took adverse action against him due to the information contained in the consumer report. The adverse action notification indicated that Defendant included certain criminal history information, which was the basis for Southgate's denial of Plaintiff's application. The notice also informed Plaintiff that he could make a dispute with Defendant at its principal place of business located at 4000 International Pkwy., Carrollton, Texas 75007. Thereafter, Plaintiff alleges that Defendant failed to either reinvestigate or delete the information as required by the FCRA (Dkt. #11 at ¶¶ 54, 55). Plaintiff also asserts that even after repeated requests, Defendant failed to provide him with a copy of his file, also in violation of the FCRA (Dkt. #11 at ¶ 59).

         Plaintiff is a resident of the State of Nevada. Defendant is a Delaware corporation and previously maintained its principal place of business at 4000 International Pkwy., Carrollton, Texas 75007 (located within this district) until as early as September 2016. Defendant currently maintains its principal place of business in Richardson, Texas, within the Northern District of Texas.

         On January 9, 2018, Plaintiff filed suit against Defendant in the Eastern District of Texas (Dkt. #1). On April 6, 2018, Defendant filed a Motion to Dismiss for Improper Venue, or Alternatively, to Transfer Venue to the Northern District of Texas (Dkt. #8). On April 27, 2018, Plaintiff filed a response, which included a request to transfer venue to the Southern District of Florida, and an Amended Complaint, which clarified the basis of venue in this district (Dkt. #11 at ¶ 10). On May 11, 2018, Defendant filed a reply (Dkt. #18).


         I. Rule 12(b)(3) Improper Venue

         Federal Rule of Civil Procedure 12(b)(3) allows a party to move to dismiss an action for “improper venue.” Fed.R.Civ.P. 12(b)(3). Once a defendant raises improper venue by motion, “the burden of sustaining venue will be on [the] Plaintiff.” Cincinnati Ins. Co. v. RBP Chem. Tech., Inc., No. 1:07-CV-699, 2008 WL 686156, at *5 (E.D. Tex. Mar. 6, 2008). “Plaintiff may carry this burden by establishing facts that, if taken to be true, establish proper venue.” Id. (citations omitted). The Court “must accept as true all allegations in the complaint and resolve all conflicts in favor of the plaintiff.” Mayfield v. Sallyport Glob. Holdings, Inc., No. 6:16-CV-459, 2014 WL 978685, at *1 (E.D. Tex. Mar. 5, 2014) (citing Ambraco, Inc. v. Bossclip, B.V., 570 F.3d 233, 237-38 (5th Cir. 2009)). In determining whether venue is proper, “the Court may look beyond the complaint to evidence submitted by the parties.” Ambraco, 570 F.3d at 238. If venue is improper, the Court must dismiss, “or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.” 28 U.S.C. § 1406(a); Fed.R.Civ.P. 12(b)(3).

         II. § 1404 Transfer

         Section 1404 permits a district court to transfer any civil case “[f]or the convenience of parties and witnesses, in the interest of justice . . . to any other district or division where it might have been brought.” 28 U.S.C. § 1404(a). “Section 1404(a) is intended to place discretion in the district court to adjudicate motions for transfer according to ‘an individualized, case-by-case consideration of convenience and fairness.'” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)). The purpose of § 1404 “is to prevent the waste ‘of time, energy and money' and ‘to protect the litigants, witnesses and the public against unnecessary inconvenience and expense . . .'” Van Dusen, 376 U.S. at 616 (quoting Cont'l Grain Co. v. The FBL-585, 364 U.S. 19, 27 (1960)).

         The threshold inquiry when determining eligibility for transfer is “whether the judicial district to which transfer is sought would have been a district in which the claim could have been filed, ” or whether all parties consent to a particular jurisdiction. In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004) (“Volkswagen I”). Once that threshold inquiry is met, the Fifth Circuit has held “[t]he determination of ‘convenience' turns on a number of public and private interest factors, none of which can be said to be of dispositive weight.” Action Indus., Inc. v. U.S. Fid. & Guar. Co., 358 F.3d 337, 340 (5th Cir. 2004). The private interest factors include (1) the relative ease of access to sources of proof; (2) the availability of compulsory process to secure the attendance of witnesses; (3) the cost of attendance for willing witnesses; and (4) all other practical problems that make trial of a case easy, expeditious and inexpensive. In re Volkswagen of Am., Inc., 545 F.3d 304 315 (5th Cir. 2008) (en banc) (“Volkswagen II”). The public interest factors include (1) the administrative difficulties flowing from court congestion; (2) the local interest in having localized interests decided at home; (3) the familiarity of the forum with the law that will govern the case; and (4) the avoidance of unnecessary problems of conflict of laws or in the application of foreign law. Id. These factors are neither exhaustive nor exclusive, and no single factor is dispositive. Id.

         The party seeking transfer of venue must show good cause for the transfer. Id. The moving party must show that the transferee venue is “clearly more convenient” than the transferor venue. Id. The plaintiff's choice of venue is not a factor in this analysis, but rather contributes to the defendant's burden to show good cause for the transfer. Id. at 315 n.10 (“[W]hile a plaintiff has the privilege of filing his claims in any judicial division appropriate under the general venue statute, § 1404(a) tempers the effects of the exercise of this privilege.”). However, “when the transferee venue is not clearly more convenient than the venue chosen by the plaintiff, the plaintiff's choice should be respected.” Id. at 315. And while the multi-factor analysis is informative, ultimately, “the district court has broad discretion in deciding whether to order a transfer.” Balawajder v. Scott, 160 F.3d 1066, 1067 (5th Cir. 1998) (quoting Caldwell v. Palmetto State Sav. Bank, 811 F.2d 916, 919 (5th Cir. 1987)).


         I. Rule 12(b)(3) Improper Venue

         The FCRA provides that “an action to enforce any liability created under this title . . . may be brought in any appropriate United States district court.” 15 U.S.C. § 1681p. Thus, venue for FCRA actions is established under the general venue rules found in 28 U.S.C. § 1391(b). See Volkswagen II, 545 F.3d at 312 (“When no special, restrictive venue statute applies [as for FCRA actions], the general venue statute, 28 U.S.C. § 1391, controls a plaintiff's choice of venue.”). Pursuant to § 1391(b), [A] civil action may be brought in-

(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or
(3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal ...

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