This action arises under the Fair Credit Reporting Act (FCRA). Plaintiff Thomas Edwards is a Pennsylvania resident who initiated this action in state court, alleging that Defendant Equifax violated FCRA by failing to provide contact information for entities that accessed his credit information. Equifax removed the case, and now seeks to transfer it some eight hundred miles south to the Northern District of Georgia, where it is headquartered. In Jumara v. State Farm Insurance Company ,
I. Motion to Remand
As a preliminary matter, I must address Plaintiff's Motion to Remand to State Court on the basis that removal was untimely. The Motion will be denied, as Equifax filed its notice of removal within thirty days of being served with the complaint. Under Pennsylvania law, a plaintiff may initiate an action by filing either a praecipe for a writ of summons or a complaint with the prothonotary. Pa. R.C.P. 1007. Plaintiff initiated this litigation by filing a praecipe for writ of summons with the Bucks County prothonotary on August 2, 2017. But Plaintiff did not file his Complaint in the Bucks County Court of Common Pleas until February 22, 2018, Pl.'s Ex. G, ECF No. 10-7, serving Defendant's counsel on February 26, 2018. Pl.'s Ex. H, ECF No. 10-8. Defendant then filed its notice of removal on March 12, 2018, well within thirty days of service. Pl.'s Ex. I, ECF No. 10-9.
For some period of time, the Third Circuit considered service of a writ of summons writ an "initial pleading" for purposes of triggering the time for removal under
Here, the notice of removal was filed well within the applicable time period, rendering Plaintiff's Motion meritless.
II. Motion to Transfer Venue
Having found that federal jurisdiction exists, I will now consider Defendant's Motion to Transfer Venue under
Under § 1404(a), district courts are to consider the "convenience of parties and witnesses," and "the interest of justice." Within the Third Circuit, the classic formulation of the analysis under § 1404 is set forth in Jumara v. State Farm Ins. Co. ,
As a preliminary matter, it bears mention that Jumara was decided well before the era of e-commerce. This case involves economic activity that traffics in data over the internet as compared to physical things. Credit reporting agencies like Equifax operate nationwide, gathering consumers' personal information, which they then analyze, package, and sell. Unlike traditional commercial transactions, consumers do not in the first instance seek to contract with credit reporting agencies. The agencies operate in the background, gathering information on their own. In practical terms, the relationship is created unilaterally, and consumers such as the plaintiff here must react to the activities of the credit agencies. Information may be gathered centrally, but the effects of its disclosure are diffuse. This makes the locus of a dispute much harder to identify, and the nature of information-based commerce renders some of the concerns addressed by Jumara less pressing. It was the unique nature of the credit reporting industry that led Congress to enact FCRA, recognizing the need for a national standard for regulating the relationship between credit reporting agencies and consumers.
The Supreme Court has described the statute as follows:
FCRA creates a detailed remedial scheme. Its provisions "set out a carefully circumscribed, time-limited, plaintiff-specific' cause of action, and ''also precisely define the appropriate forum." ... Claims to enforce liability must be brought within a specified limitations period, § 1681p, and jurisdiction will lie "in any appropriate United States district court, without regard to the amount in controversy, or in any other court of competent jurisdiction."
United States v. Bormes ,
In ruling on § 1404(a) motions, courts have not limited their consideration to the three enumerated factors in § 1404(a) (convenience of parties, convenience of witnesses, or interests of justice), and, indeed, commentators have called on the courts to "consider all relevant factors to determine whether on balance the litigation would more conveniently proceed and the interests of justice be better served by transfer to a different forum."
Turning first to the Jumara factors, Plaintiff's initial choice of forum weighs heavily in favor of keeping his case
Here, Plaintiff has expressed a clear preference to litigate this action near his home in Pennsylvania. Equifax disputes this, arguing that because Plaintiff was removed to the Eastern District from Bucks County, he cannot be deemed to have chosen this court as the forum. This is wordplay, not serious legal analysis, because such a definition of forum is so myopic and artificial as to render the concept meaningless. Plaintiff's original choice of Pennsylvania as the forum is not extinguished by a subsequent involuntary removal. The Eastern District of Pennsylvania is equally a "home" forum to a Bucks County resident as the Court of Common Pleas. And, by definition, Plaintiff's opposition to the Motion to Transfer to Atlanta expresses a clear preference for Pennsylvania as the forum.
The second Jumara factor-the defendant's preference-in reality does little more than frame the issue, because there would be no motion to transfer unless the defendant prefers a different forum. The essential question is whether a combination of other factors are sufficient to overcome the presumption that the plaintiff's preference governs. As the Jumara Court made clear, "[t]he burden of establishing the need for transfer still rests with the movant."
The third Jumara factor, which considers where the claim arose, defies easy definition in cases that center on the business of data aggregation and transmission. Defendant seeks to define the issue in terms of physical location, arguing that its reporting policies are formulated at its headquarters in Atlanta, and applied to individual consumers such as the plaintiff by its employees working there, and that the data they gather is stored on computer servers located there. Offsetting these considerations is the fact that credit reporting agencies gather data nationwide. This dispute originated with an inquiry from a consumer in Pennsylvania, and any effects of a statutory violation would be felt in Pennsylvania. Indeed, part of the dispute in this case is that Plaintiff, having checked his credit report, knows that certain entities made inquiries into his credit
The fourth Jumara factor directs district courts specifically to consider the respective burdens on the parties "as indicated by their relative physical and financial condition."
The fifth Jumara factor is self-limiting, in that it directs courts to consider the convenience of witnesses, but "only to the extent that the witnesses may actually be unavailable for trial in one of the fora."
The final private interest Jumara factor requires consideration of the "location of books and records."
In short, except for an equivocal position on where the cause of action arose, Equifax cannot support a case for transfer under Jumara 's private factors.
Jumara 's public factors are not easily applied to a case involving a federal statute. It is readily apparent that the fourth, fifth, and sixth factors-"local" interests, policy of the forum, and familiarity with state law, respectively-address diversity cases. FCRA establishes a uniform national standard; the policy considerations are the same in every forum, and federal judges are presumed to know federal law.
Nor do the remaining three factors have particular relevance when the question is whether a case should be transferred from one federal court to another. Enforceability of a judgment is not an issue in light of
As noted above, the limited applicability of the public factors Jumara specifically identified does not end the analysis. Section 1404 calls upon courts to consider the "interest of justice," and Jumara endorsed a broader inquiry that includes any consideration relevant to this interest.
Private enforcement actions are an "integral component" of FCRA's "regulatory apparatus." See Austin H. Krist, Large-Scale Enforcement of the Fair Credit Reporting Act and the Role of State Attorneys General , 115 Columbia L. Rev. 2311, 2321 (2015). Indeed, in reconciling the Senate and House versions of FCRA, the Senate conferees agreed to revise its proposed
Since 1970, Congress has amended FCRA to further incentivize private enforcement. Under the statute's original language, which provided recovery only for actual and punitive damages, the potential recovery for many violations was too low to incentivize consumers to bring lawsuits. See Sheldon Feldman, The Fair Credit Reporting Act-From the Regulators['] Vantage Point , 14 Santa Clara Lawyer 459, 482-85 (1974); 15 U.S.C. § 1681n (1970). Consequently, in 1996, Congress amended FCRA to establish minimum statutory damages of $100 to $1,000 for willful violations, demonstrating lawmakers' recognition of the importance of private enforcement. See Pub. L. 104-208 § 2412,
In sum, in both passing and later amending FCRA, Congress has consistently sought to incentivize private enforcement, and transfer of a consumer's action to a distant forum is by its very nature a distinct disincentive. Thus, aside from the inherent weakness of a location-based approach to venue in a case involving what is, at its core, a form of e-commerce, such a result would seem to frustrate the "interest of justice" as defined by FCRA. That does not mean that transfer can never be warranted, but the fundamental presumption favoring the plaintiff's choice of forum has particular force given the purpose of the statute. Moreover, the breadth of Equifax's argument is troubling-by its logic, every FCRA case would belong in the home district of the credit reporting agency. This is a position I cannot reconcile with FCRA or § 1404(a).
As is typically so with motions to transfer, both parties are able to cite a battery of cases serving as authority for or against transfer, the facts of which are analogous to this case to a greater or lesser extent. I have reviewed that precedent, but will not discuss or seek to distinguish individual cases in detail, as it appears that none of the opinions cited include a discussion of the nature of FCRA and its implications in deciding motions under § 1404(a), which is critical to the result I reach here.
III. Conclusion
Defendant timely and properly removed this case, so the Motion to Remand will be denied. Defendant's Motion to Transfer will also be denied. Defendant has not shown that the balance of convenience "strongly favors transfer," as required by
Notes
In that regard, Congress specifically created jurisdiction over FCRA claims in both state and federal courts. To hold that a plaintiff whose case was removed to federal court thereby forfeits the right to litigate in his home state because he initially filed in state court-effectively penalizing him for that choice-would both be inconsistent with the statute and raise serious issues of federalism.
Although not essential to the analysis in view of Defendant's failure to show an inability to secure attendance of witnesses, Plaintiff will seek leave at trial to present third-party witnesses located in Pennsylvania who have been subject to similar purported violations, in an attempt to prove a willful violation. See Pl.'s Br. 13-14. The inability of Plaintiff to secure the appearance of such witnesses in Georgia would be a countervailing consideration.