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Fausz v. Experian Information Solutions, Inc.

United States District Court, W.D. Kentucky, Bowling Green Division

July 3, 2018

ELLA J. FAUSZ PLAINTIFF
v.
EXPERIAN INFORMATION SOLUTIONS, INC. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          GREG N. STIVERS, JUDGE.

         This 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)[1], 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.

         I. STATEMENT OF THE CASE AND CLAIMS

         Plaintiff 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).

         On 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 Transfer 2-3).

         After 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).

         On 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).

         II. JURISDICTION

         Plaintiff 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)[2].

         III. STANDARD OF REVIEW

         In 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).

         Additionally, 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.”).

         IV. DISCUSSION

         As 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 ...


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