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Creech v. Blue Cross and Blue Shield of Florida, Inc.

United States District Court, W.D. Kentucky, Louisville Division

December 21, 2017



          Thomas B. Rusell, Senior Judge

         This matter is before the Court on Defendant Blue Cross and Blue Shield of Florida, Inc.'s motion to dismiss or improper venue, or, alternatively, to transfer this case to the Middle District of Florida. [DN 5.] Plaintiff Kathryn Creech responded, [DN 6], and Defendant replied, [DN 7.] Fully briefed, this matter is now ripe for adjudication. For the reasons stated herein, Defendant's motion is GRANTED IN PART AND DENIED IN PART.


         This action arises out of Plaintiff Kathryn Creech's former employment with Defendant Blue Cross and Blue Shield of Florida, Inc. (“Florida Blue”). Creech, who works in the corporate healthcare industry, worked as the Vice President of Humana, Inc. in Louisville, Kentucky, from September 2008 to February 2015. [DN 1-1 (Complaint).] Prior to that, she worked as the President and CEO of Miavita and the Vice President of Matria Healthcare. While she was Vice President at Humana, Inc., Creech attained a “strong public record in leading Humana's Star Quality Program to achieve industry leadership.” [Id. at 2.] “Because of [Creech's] expertise in [h]ealthcare, Florida Blue engaged in actively recruiting her after she responded to a position posted for a Leader of Medicare Star Program for Florida Blue. [Id.] Florida Blue upgraded the position to Vice President of the Medicare Star Program to actually land Creech” as an employee. [Id.]

         In a letter dated December 28, 2015, Florida Blue formally offered Creech the position of Vice President of its Medicare Star Program. [Id.] Creech accepted the position, which allowed her to work from home in Kentucky and travel to Florida as needed, with the expectation of an eventual relocation to Florida in September 2017. [Id. at 3.] In her complaint, Creech alleges that, during her employment with Florida Blue, she “worked from Kentucky approximately 60% of the time and worked in Florida approximately 40% of the time.” [Id.] While working in Kentucky, Creech worked from “a phone, a headphone, an official Florida Blue laptop computer, docking station, secure printer, as well as a separate computer monitor, ” all of which Florida Blue provided to her. [Id. at 2.] Florida Blue, on the other hand, contends that “Creech spent approximately 61% of her time working for Florida Blue in Florida and was provided an apartment to live in while performing services at Florida Blue's Jacksonville headquarters.” [DN 5 at 2.]

         In October, 2016, Creech “was preparing the presentation and review of her department's proposed 2017 operating and staff budget for the Medicare Star Program.” [DN 1-1 at 4; DN 5 at 2.] According to Creech, “she was abruptly uninvited to the meeting to review the 2017 Medicare Stars Budget, literally at the last moment and via text message.” [DN 1-1 at 5.] Creech claims that, as a result, she became “concerned with her ability to perform her duties as VP of Medicare Stars” and, therefore, “made the executive decision to call into her budget meeting to make sure she didn't miss any critical information.” [Id.] Thereafter, Florida Blue indicated to Creech that she had acted insubordinately for calling into the meeting. [Id.] Creech claims that she was then “terminated without cause.” [Id.]

         Florida Blue tells a similar version of events, but with some differences. According to Florida Blue, Creech

was allowed to resign in lieu of termination after she secretly joined and eavesdropped on an October 27, 2016, conference call/meeting between her supervisor, Luisa Charbonneau and other top executives at Florida Blue (“the October Conference Call”). Creech did so after Charbonneau specifically directed Creech not to participate in the call. When the participants on the October Conference Call heard suspicious audible beeps and asked if anyone had joined the call, Creech remained silent. Creech only admitted to having secretly eavesdropped on the October Conference Call when she was confronted with the Company records proving that she had joined the call.

[DN 5 at 2.]

         On May 2, 2017, Creech filed suit against Florida Blue in Jefferson County District Court in Louisville, Kentucky, alleging breach of contract and violations of Kentucky wage and hour laws. [See DN 1-1.] Florida Blue later removed the action to the District Court for the Western District of Kentucky and filed the instant motion to dismiss for improper venue or, in the alternative, to transfer. [DN 1 (Notice of Removal); DN 5 (Motion to Dismiss or Transfer).]


         Under Federal Rule of Civil Procedure 12(b)(3), a defendant may move to dismiss an action on the grounds that it was filed in an improper venue. Fed.R.Civ.P. 12(b)(3). Federal law provides that “[a] civil action may be brought in . . . a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred.” 28 U.S.C. § 1391(b)(2). “The district court of a district in which is filed a case laying venue in the wrong division or district shall 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). Even if venue is proper, however, “[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.” 28 U.S.C. § 1404(a). “Once challenged, Plaintiff bears the burden of showing that its initial choice of venue is proper.” Sechel Holdings, Inc. v. Clapp, No. 3:12-CV-00108-H, 2012 WL 3150087, at *2 (W.D. Ky. Aug. 2, 2012) (Heyburn, J.) (citing Crutchfield v. Santos, No. 5:07-CV-94-R, 2007 WL 4124713, at *1 (W.D. Ky. Nov. 19, 2007) (Russell, J.)). “The Court may examine facts outside the complaint but must draw all reasonable inferences and resolve factual conflicts in favor of the plaintiff.” NHCLC-Seattle, LLC v. Kauffman, No. 13-12804, 2013 WL 6474197, at *2 (E.D. Mich. Dec. 10, 2013) (quoting Audi AG & Volkswagen of Am., Inc. v. Izumi, 204 F.Supp.2d 1014, 1017 (E.D. Mich. 2002)).


         Florida Blue requests that the Court either dismiss this case for improper venue pursuant to Rule 12(b)(3) or, alternatively, transfer the case to the Middle District of Florida for the convenience of the parties, witnesses, and in the interests of justice pursuant to 28 U.S.C. § 1404(a). [DN 5 at 3.]

         1) Whether ...

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