United States District Court, W.D. Kentucky, Bowling Green Division
ELLA J. FAUSZ PLAINTIFF
EXPERIAN INFORMATION SOLUTIONS, INC. DEFENDANTS
MEMORANDUM OPINION AND ORDER
N. STIVERS, JUDGE.
matter is before the Court upon Defendant's Motion to
Transfer pursuant to 28 U.S.C. § 1404(a), or, in the
Alternative, to Stay the Action (DN 9) and Plaintiff's
Motion to Remand (DN 14), which are ripe for adjudication. For
the reasons stated below, Defendant's Motion to Transfer
is GRANTED, and Plaintiff's Motion to Remand is DENIED.
STATEMENT OF THE CASE AND CLAIMS
Ella Fausz (“Fausz” or “Plaintiff”)
filed this action against Defendant Experian Information
Solutions (“Experian” or “Defendant”)
asserting claims against Experian relating to alleged
violations of the Consumer Credit Protection Act
(“CCPA”), 15 U.S.C. § 1601, and the Fair
Credit Reporting Act (“FCRA”), 15 U.S.C. §
1681. (Compl. ¶¶ 14-15, DN 1-1). In addition, Fausz
asserted claims Kentucky law tort claims for invasion of
privacy, negligent or intentional infliction of emotional
distress, and statutory claims for violations of the Kentucky
Consumer Protection Act, KRS 367.170, and the Kentucky
Computer Security Breach Notification Act, KRS 365.732.
(Compl. ¶¶ 16-32).
September 15, 2015, Experian discovered that an unauthorized
third party had accessed data housed in one of its servers.
(Def.'s Mem. Supp. Mot Transfer 1, DN 9). The data
consisted of names, addresses, and social security No. from
applicants and/or customers of T-Mobile during the time
period of September 1, 2013, through September 16, 2015.
(Def.'s Mem. Supp. Mot Transfer 1). On October 1, 2015,
Experian issued a press release and shortly thereafter
notified all potentially affected individuals. As part of the
notice Experian offered the affected individuals two years of
free credit monitoring services. (Def.'s Mem. Supp. Mot
notice was provided, over forty putative nationwide class
actions were filed against Experian. (Def.'s Mem. Supp.
Mot Transfer 2-3). Those individual class actions have been
consolidated in In re Experian Data Breach
Litigation, No. 8:15-cv-01592-AG-DFM, which is pending
in the U.S. District Court for the Central District of
California. (Def.'s Mem. Supp. Mot Transfer 2-3).
October 12, 2017, Plaintiff filed this action against
Experian in the Jefferson Circuit Court in a lawsuit styled
Fausz v. Experian Information Solutions, Inc., Civil
Action No. 17-CI-005423 (the “State Court
Action”). On November 3, 2017, Experian removed the
case from the Jefferson Circuit Court to this Court. (Notice
Removal, DN 1).
originally asserted claims against Experian relating to
alleged violations of the CCPA and FCRA, and claims arising
under Kentucky law. (Compl. ¶¶ 14-32). Thus,
jurisdiction is based on 28 U.S.C. § 1331. Because
federal-question jurisdiction existed at the time of removal,
this Court has supplemental jurisdiction over the matter
despite Plaintiff's attempt to dismiss her federal claims
under 28 U.S.C. § 1367(a).
STANDARD OF REVIEW
ruling on a motion to transfer, Section 1404(a) provides that
“[f]or the convenience of parties and witness, 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). When deciding
whether or not to transfer a case under Section 1404(a), the
moving party has the burden of showing that transfer to
another forum is proper. Means v. U.S. Conference of
Catholic Bishops, 836 F.3d 643, 652 n.7 (6th Cir. 2016).
To establish that transfer is proper, the moving party must
demonstrate that (1) the transferee court is one in which the
action could have been brought initially; and (2) on balance,
a transfer would serve the convenience of the parties and
witnesses and otherwise promote the interests of justice.
Van Dusen v. Barrack, 376 U.S. 612, 616 (1964).
the Sixth Circuit has outlined a No. of factors for district
courts to weigh when considering transfer of venue motions.
These factors include: “(1) the convenience of
witnesses; (2) the location of relevant documents and
relative ease of access to sources of proof; (3) the
convenience of the parties; (4) the locus of the operative
facts; (5) the availability of process to compel the
attendance of unwilling witnesses; (6) the relative means of
the parties; (7) the forum's familiarity with the
governing law; (8) the weight accorded the plaintiff's
choice of forum; and (9) trial efficiency and the interests
of justice, based on the totality of the
circumstances.” Pharmerica Corp. v. Crestwood Care
Ctr., No. 3:12-CV-00511-CRS, 2013 WL 5425247, at *1
(W.D. Ky. Sept. 26, 2013). Generally, “[a]s the
permissive language of the transfer statute suggests,
district courts have ‘broad discretion' to
determine when party ‘convenience' or ‘the
interest of justice' make a transfer appropriate.”
Reese v. CNH Am. LLC, 574 F.3d 315, 320 (6th Cir.
2009); see also Means, 836 F.3d at 651 (“[T]he decision
whether or not to transfer fell squarely within the district
court's sound discretion.”).
noted above, a district court has broad discretion to
“adjudicate motions for transfer according to an
individualized, case-by-case consideration of convenience and
fairness.” Stewart Org., 487 U.S. at 29 (internal
quotation marks omitted) (quoting Van Dusen, 376 U.S. at
612). On a motion to transfer venue under Section 1404(a),
the burden is on the moving party to show that transfer to
another forum is proper. Means, 836 F.3d at 652 n.7. In order
to do this the movant must demonstrate that the transfer
court has both subject matter and personal jurisdiction over
the action, and that venue is proper. 28 U.S.C. §§
1331, 1391(b); see also Pittock v. Otis Elevator
Co.,8 F.3d 325, 329 (6th Cir. 1993). DEFENDANT has
demonstrated that the action could have been originally
brought in the Central District of California because the
transferee court has both subject matter and personal
jurisdiction over the action. This case was properly removed
by the Defendant pursuant to 28 U.S.C. § 1441 under this
Court's federal question jurisdiction. The Sixth Circuit
has directed trial courts to examine the allegations in the
complaint as it existed at the time of removal in order to
determine if subject matter jurisdiction exists. Harper
v. AutoAlliance Int'l, Inc.,392 F.3d 195, 210-11
(6th Cir. 2004). The Central District of California also has
the power to ...