DAVID A. PERRILL and GREGORY PERRILL, Plaintiffs, v. EQUIFAX INFORMATION SERVICES, LLC, Defendant.
Civil File No. 13-3333 (MJD/JSM)
UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA
June 30, 2014
Case 1:14-cv-00612-SS Document 47 Filed 06/30/14 Page 1 of 15
Andrew J. Ogilvie and Carol M. Brewer, Anderson Ogilvie & Brewer LLP, and Mark L. Heaney, Heaney Law Firm, LLC, Counsel for Plaintiffs.
J. Anthony Love and Barry Goheen, King & Spalding, LLP, and Joseph W. Lawver, Messerli & Kramer, Counsel for Defendant.
I. INTRODUCTION
This matter is before the Court on Defendant’s Motion to Transfer Venue to the United States District of Texas, Austin Division [Docket No. 14] and Plaintiffs’ Request to Strike Defendant’s “Notice of Filing Additional Materials in Support of Motion to Transfer” [Docket No. 44]. The Court heard oral argument
II. BACKGROUND
A. Factual Background
1. Defendant Equifax
Defendant Equifax Information Services LLC (“Equifax”) and CSC Credit Services (“CSC”) are consumer reporting agencies as defined by the Fair Credit Reporting Act (“FCRA”). (Banks Decl. ¶ 5.) They were separate companies until Equifax acquired CSC’s credit reporting assets in December 2012. (Id. ¶¶ 6, 8.) CSC was located in Houston, Texas, and Equifax was and is located in Atlanta, Georgia. (Id. ¶ 7.)
Before Equifax acquired CSC, CSC stored its consumer credit files on Equifax’s computer database. (Banks Decl. ¶¶ 6, 9.) Otherwise, CSC and Equifax operated independently and entered their own separate contractual relationships with third parties that sought to purchase credit reports. (Id. ¶ 10.)
In 2009, CSC entered into a contract to provide credit reports to the Texas Comptroller. (Fisher Decl. ¶ 7.) Pamela Sneed, an employee of the Texas Comptroller, dealt with CSC in relation to CSC’s bid to offer credit reporting services to the Comptroller in Austin, Texas. (Banks Decl. ¶¶ 12-13.)
2. Plaintiffs
Plaintiffs David Perrill and Gregory Perrill are Minnesota residents and officers of Wand Corporation (“Wand”), which is based in Minnesota. (D. Perrill Decl. ¶¶ 1-3; G. Perrill Decl. ¶¶ 1-3.)
Wand fell behind in its payments of sales, excise, and use taxes to the Texas Comptroller. (D. Perrill Decl. ¶ 4; G. Perrill Decl. ¶ 4.) On February 5, 2013, Wand entered into a settlement agreement with the Comptroller to resolve the outstanding taxes owed by Wand. (Id.) Neither David Perrill nor Gregory Perrill signed or personally guaranteed the installment payment plan. (D. Perrill Decl. ¶ 5; G. Perrill Decl. ¶ 5.)
In June 2013, Wand missed a scheduled payment under the settlement agreement. (D. Perrill Decl. ¶ 6.) In July 2013, shortly after Wand missed its
Equifax delivered Plaintiffs’ consumer reports to the Comptroller in Austin, Texas. (Banks Decl. ¶ 12.) Plaintiffs aver that neither has ever asked the Comptroller for credit or had any other dealings with the Comptroller. (D. Perrill Decl. ¶¶ 13-14; G. Perrill Decl. ¶¶ 9-10.)
Wand’s tax obligation to the Comptroller is now fully satisfied. (D. Perrill Decl. ¶ 6.)
B. Procedural History
On December 4, 2013, Plaintiffs filed a Complaint against Equifax in this Court. The Complaint alleges: Count 1: willful violation of FCRA pursuant to
FCRA authorizes a consumer reporting agency to furnish a consumer report only if the person requesting the report has a permissible purpose to
[t]o a person which it has reason to believe—
intends to use the information in connection with a credit transaction involving the consumer on whom the information is to be furnished and involving the extension of credit to, or review or collection of an account of, the consumer . . . .
Plaintiffs allege that the Comptroller lacked a permissible purpose to obtain their Equifax credit reports to assist it in collecting the money that Wand owed. They further assert that Equifax knew or should have known that the Comptroller did not have a permissible purpose to obtain those reports. (Compl. ¶¶ 13-16.) Plaintiffs seek to certify a nationwide class action representing “[a]ll consumers whose consumer reports were furnished to the Texas Comptroller by Equifax in connection with the Texas Comptroller’s efforts to collect on alleged involuntary tax obligations within the period beginning two years prior to the filing of this Complaint.” (Compl. ¶ 19.)
Equifax now requests that this Court transfer the case to the Western District of Texas.
III. MOTION TO STRIKE
Plaintiffs have responded to Defendant’s Notice with a motion to strike. Plaintiffs assert that Defendant has violated Local Rule 7.1(i), entitled Unsolicited Memoranda of Law. The rule provides: “Except with the court’s prior permission, a party must not file a memorandum of law except as expressly allowed under L.R. 7.1.” Plaintiffs request that the Court strike Defendant’s Notice and award Plaintiffs the reasonable attorneys’ fees incurred in responding to the Notice.
The Court denies the motion to strike. The Notice is not a “memorandum of law” as discussed under the Local Rules. It contains no legal argument; it
IV. MOTION TO TRANSFER
A. Section 1404(a) Standard
Under
B. Whether this Case Could Have Been Brought in the Western District of Texas
A civil action may be brought in—
- a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;
- 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
- 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 jurisdiction with respect to such action.
Equifax is subject to personal jurisdiction in the Western District of Texas, and “a substantial part of the events or omissions giving rise to the claim occurred” in that district. This lawsuit could have been brought in the Western District of Texas.
C. Convenience of the Parties and the Witnesses
When analyzing the convenience prong, courts typically consider “(1) the convenience of the parties, (2) the convenience of the witnesses – including the
1. Convenience of the Parties
The convenience of the named parties weighs against transfer. Plaintiffs are individuals who reside in Minnesota. Defendant is a large corporation headquartered in Georgia, not Texas.
2. Convenience of the Witnesses
The convenience of the witnesses weighs strongly in favor of transfer. In analyzing this factor, “the Court focuses on non-parties because it is generally assumed that witnesses within the control of the party calling them, such as employees, will appear voluntarily in a foreign forum.” Austin v. Nestle USA, Inc., 677 F. Supp. 2d 1134, 1138 (D. Minn. 2009) (citations omitted).
The Texas Comptroller and its affiliated witnesses are key to this lawsuit. Plaintiffs’ own putative class definition names the Texas Comptroller twice. Every member of the putative class has some relationship or connection to the
3. Accessibility of the Records
The location of the records weighs in favor of transfer. The records that would be relevant to this case would be located in Georgia, at Equifax’s headquarters, and in Texas, in the Comptroller’s office. Plaintiffs allege that the Comptroller will have the records regarding whether Equifax provided consumer credit reports to the Comptroller in connection with the Comptroller’s effort to collect tax debts. Also, the Texas Comptroller’s records will be used to identify putative class members. Plaintiffs’ attempt to subpoena records from
4. Minnesota Connection
The factor regarding the complained-of conduct weighs towards transfer. The lawsuit was precipitated by taxes owed to the State of Texas for Wand’s business in Texas and by the Texas Comptroller’s request for and receipt of consumer credit reports of corporate officers of Wand. It is also based on the policies governing the relationship between CSC and the Comptroller, a relationship created and managed in Texas. As a class action, the lawsuit centers on Equifax’s provision of reports to the Texas Comptroller based on the Comptroller’s allegation that those consumers, located across the nation but likely mostly in Texas, owed taxes to the Texas Comptroller. On the other hand, Equifax provided the reports from its headquarters in Atlanta; Equifax’s corporate policies were created in Atlanta; and Plaintiffs were damaged by Equifax’s conduct in Minnesota.
D. Interests of Justice
When analyzing the interest of justice, courts typically consider “(1) judicial economy, (2) the plaintiff’s choice of forum, (3) the comparative costs to
1. Judicial Economy
The judicial economy factor is neutral. At this time, the difference in case load between the Western District of Texas and the District of Minnesota is not material. This case has not yet progressed far in this District, so the Court has not yet expended significant time or effort on this lawsuit. The disagreement regarding Plaintiffs’ subpoena served on the Texas Comptroller is already likely to be heard in the Western District of Texas.
2. Plaintiffs’ Choice of Forum
Normally, considerable deference is given to the plaintiffs’ choice of forum, particularly when the plaintiffs are residents of the chosen forum, as is true in this case. However, Plaintiffs propose a nationwide class action with a class defined by putative class members who allegedly owed money to the Texas Comptroller. Thus, the deference given to Plaintiffs’ choice of forum is greatly reduced. See, e.g., Wald v. Bank of Am. Corp., 856 F. Supp. 2d 545, 549 (E.D.N.Y. 2012);
At this point, there is no evidence regarding the geographic makeup of such a class, but, logically, it would seem that the largest concentration of class members would reside in Texas because most of the persons who are affiliated with companies that did business in the State of Texas and owed money to the Texas Comptroller or who, themselves, owed money to the Comptroller would reside in Texas. The class is highly unlikely to contain a large number of Minnesotans. Thus, Plaintiffs’ choice of forum is entitled to little weight in this case.
3. Comparative Costs to the Parties
The comparative costs to the parties factor weighs slightly against transfer because Plaintiffs are individuals who live in Minnesota, so transfer to Texas would increase their costs, while Equifax is a large corporation headquartered in Georgia. However, Plaintiffs plead a nationwide class action, and the class members are unlikely to be centered in Minnesota and likely to be centered in Texas.
The ability to enforce a judgment, obstacles to a fair trial, and conflicts of law issues all are neutral.
5. The Advantages of Having a Local Court Determine Questions of Local Law
Plaintiffs’ Complaint is predicated upon federal law. However, the determination of whether Plaintiffs were personally liable for Wand’s tax liability depends on the application of Texas law:
E. Conclusion
Weighing all of the above factors, the Court concludes that transfer to the Western District of Texas is appropriate. Plaintiffs have pled a nationwide class action in which the class members are likely concentrated in Texas. The putative class members are defined by having allegedly owed taxes to the State of Texas and having had the Texas Comptroller request their consumer credit reports from Equifax in order to attempt to collect on those taxes. The vast majority of non-party witnesses are located in Texas, outside the trial subpoena party of this
Accordingly, based upon the files, records, and proceedings herein, IT IS HEREBY ORDERED:
- Plaintiffs’ Request to Strike Defendant’s “Notice of Filing Additional Materials in Support of Motion to Transfer” [Docket No. 44] is DENIED.
- Defendant’s Motion to Transfer Venue to the United States District of Texas, Austin Division [Docket No. 14] is GRANTED.
- This case is transferred to the United States District Court for the Western District of Texas.
Dated: June 30, 2014 s/ Michael J. Davis
Michael J. Davis
Chief Judge
United States District Court