Brown v. PSCU, Inc.

CONNIE BROWN, Plaintiff, v. PSCU, INC., Defendant.

CASE NO. 20-11510

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

December 4, 2020

HON. DENISE PAGE HOOD

ORDER DENYING DEFENDANT'S MOTION TO TRANSFER [#5] and ORDER DENYING DEFENDANT'S MOTION TO STAY [#7]

I. BACKGROUND

Before the Court is Defendant PSCU, Inc.'s ("PSCU" or "Defendant") Motion to Transfer Venue to the Middle District of Florida ("MDFL"), [ECF No. 5] and Defendant's Motion to Stay Proceedings [ECF No. 7] pending the outcome of Defendant's Motion to Transfer.

PSCU is a Florida Corporation with its headquarters in St. Petersburg, Florida. [ECF No. 5, Pg.ID 43] PSCU provides several different services to credit unions nationwide, including customer service support. [Id.] PSCU operates call-centers at its headquarters, and in its offices in Michigan and Arizona. [ECF No. 5, Pg.ID 43] PSCU's human resources, payroll, and IT staff, who are responsible for employee compensation policies, are located at PSCU's headquarters in Florida. [Id.]

Plaintiff Connie Brown ("Brown") was previously employed as a call-center representative in PSCU's office in Allen Park, Michigan. [ECF No. 1, Pg.ID 4] On June 10, 2020, Brown filed a Complaint, on behalf of herself and "all current and former non-exempt call-center employees," against PSCU. [ECF No. 1] Brown filed her Complaint under the Fair Labor Standards Act ("FLSA") to recover unpaid wages and benefits she claims she is owed from June 9, 2017 through the final resolution of this lawsuit. [Id.]

The Complaint alleges that Brown's employer, PSCU, enforced a company-wide policy that improperly required its non-exempt call-center employees to perform work off-the-clock, which they were not compensated for. [ECF No. 1, Pg.ID 2] Brown claims that such a policy was illegal and that it negatively affected employees' regular pay rate as it related to calculating weekly overtime wages. [Id.]

On July 2, 2020, PSCU filed a Motion for a More Definite Statement. [ECF No. 6] In response, Brown filed an Amended Complaint on July 21, 2020. [ECF No. 9] Brown's Amended Complaint narrowed her issues and only brought claims on behalf of herself, and those similarly situated employees at PSCU's call-centerin Allen Park, Michigan. In addition to violating the FLSA, Brown alleges PSCU's policies violated analogous Michigan state laws. [ECF No. 9, Pg.ID 229]

On July 2, 2020, PSCU filed the instant Motion to Transfer the case to the MDFL. [ECF No. 5] On July 23, 2020, Brown filed her Response. [ECF No. 11] PSCU filed a Reply on July 30, 2020. [ECF No. 16] On July 2, 2020, PSCU also filed a Motion to Stay Proceedings. [ECF No. 7] Brown submitted her Response [ECF No. 13] on July 23, 2020, and PSCU filed a Reply on July 30, 2020. [ECF No. 17] On October 1, 2020, the Court granted Defendant's Ex Parte Motion for Leave to File Supplemental Documents in Support of the instant Motion. [ECF No. 24]

II. LEGAL ANALYSIS

A. Defendant's Motion to Change Venue

1. 28 U.S.C. § 1404

PSCU brings its Motion under 28 U.S.C § 1404(a). That section provides:

"For the convenience of the 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).

The determination of whether a case should be transferred involves a balancing of the following factors: (1) convenience of the parties; (2) convenience of the witnesses; (3) ease of access to sources of proof; (4) availability of processto compel attendance of witnesses; (5) costs of obtaining witnesses; (6) expense and expeditiousness of trying matter; and (7) interests of justice. Verve, L.L.C. v. Becton Dickinson & Co., No. 01-CV-74134-DT, 2002 U.S. Dist. LEXIS 6483, 2002 WL 551031, at *1 (E.D. Mich. March 29, 2002). (citing Kepler v. ITT Sheraton Corp., 860 F. Supp. 393 (E.D. Mich. 1994)).

The burden of proving that a venue transfer is warranted is on the moving party, and the burden is substantial. Smith v. Kyphon, Inc., 578 F.Supp.2d 954, 958 (M.D.Tenn.2008). District courts have broad discretion over whether to grant a motion to transfer a case. Reese v. CNH America LLC, 574 F.3d 315, 320 (6th Cir.2009). District courts should consider the public interests, including "systemic integrity and fairness," as well as the private interests of the parties, such as "convenience and the convenience of potential witnesses." Moses v. Bus. Card Exp., Inc., 929 F.2d 1131, 1137 (6th Cir. 1991).

2. Viability of the Middle District of Florida

PSCU indicates that the MDFL is an appropriate venue because the action could have been brought there originally. PSCU notes that the MDFL is proper because PSCU is a resident of the MDFL and that Court has personal jurisdiction over it.

3. Convenience of the Parties

PSCU asserts that the MDFL is a more appropriate venue because it is more convenient for the parties and witnesses and furthers the interests of justice. A plaintiff's choice of forum is usually entitled to substantial weight. Picker, 35 F.Supp.2d at 573. However, PSCU argues that Brown's choice of forum should be afforded less weight because this is a putative class action.

Citing Koster v. (Am.) Lumbermens Mut. Cas. Co., PSCU asserts that the Supreme Court has determined that a plaintiff's choice of forum in a putative class action "is considerably weakened." 330 U.S. 518, 524 (1947). To support this point, PSCU indicates that courts in the Sixth Circuit have repeatedly found the transfer of FLSA collective actions appropriate—even when a plaintiff has filed in her home forum.¹ See, e.g., Esperson v. Trugreen Ltd. P'ship, No. 2:10-CV-02130, 2010 U.S. Dist. LEXIS 114500 (W.D. Tenn. Oct. 5, 2010) report and recommendation adopted, No. 2:10-CV-02130, 2010 U.S. Dist. LEXIS 114537 (W.D. Tenn. Oct. 27, 2010).

PSCU notes that the number of putative plaintiffs is in the hundreds and that they reside in at least the three states of Arizona, Florida, and Michigan. [ECF No.5, Pg.ID 49] Guided by that fact, PSCU asserts that Brown's choice of this district should be given little deference. See Jewell, 2012 U.S. Dist. LEXIS 22315, at *10-11 (allowing defendant's motion to transfer out of the plaintiff's home district and opining that the outcome "may have come out the other way" had the plaintiff's FLSA collective action been a single-plaintiff suit).

In response, Brown points to her Amended Complaint, which she indicates narrowed her claims. [ECF No. 9] Brown, a Michigan resident, now brings her claims against PSCU, another Michigan resident (PSCU, which has an office in Michigan), on behalf of "herself and other similarly situated persons employed in Michigan by PSCU." [ECF No. 11, Pg.ID 247-48] (emphasis added).

4. Convenience of the Witnesses

PSCU argues that transfer is appropriate because of the convenience of witnesses and the attendant costs associated with litigating in this district. See Fluidtech, Inc. v. Gemu Valves, Inc., 457 F. Supp. 2d 762, 767 (E.D. Mich. Aug. 23, 2006) (Cleland, J.) (quotation omitted); see also McCuiston v. Hoffa, 313 F. Supp. 2d 710, 719 (E.D. Mich. April 14, 2004) (Feikens, J.) (same) (quoting 17 Moore's Federal Practice, § 111.13[1][f][i]).

The party seeking to transfer the case should specify the key witnesses to be called and the nature of their testimony. Verve, L.L.C., 2002 U.S. Dist. LEXIS 6483, 2002 WL 551031, at *2. (citing SEC v. Savoy Indus., 190 U.S. App. D.C.252, 587 F.2d 1149 (D.C.C. 1979)). Witnesses' convenience is one of the most important factors in determining whether to grant a motion to change venue under § 1404(a). Thomas, 131 F. Supp. 2d at 937 (citing Hunt v. TACA Int'l Airlines, S.A., No. 93-3723, 1994 U.S. Dist. LEXIS 8464, 1994 WL 285023, at *2 (E.D. La. June 22, 1994)). In weighing the convenience of the witnesses, more important than the raw numbers of witnesses living in a particular jurisdiction, is the residence of the key witness or witnesses. Id. (citing SMI-Owen Steel Co., Inc. v. St. Paul Fire & Marine Ins. Co., 113 F.Supp.2d 1101, 1105 (S.D. Tex. 2000)). The parties should provide each witness's name and an outline of what material testimony that witness would provide. Id. (citing Firkus v. Soo Line R.R. Co., No. 96 C 3714, 1996 U.S. Dist. LEXIS 14494, 1996 WL 568803, at *3 (N.D. Ill. Oct. 2, 1996)). Only when the Court is armed with such information can it properly assess the convenience of the witnesses.

Relative to the convenience of the parties and witnesses, it is clear that PSCU would find it more convenient to litigate this matter in Florida. PSCU's headquarters is located in Florida and PSCU asserts its many potential witnesses and employees are located in Florida. PSCU relies on the Declaration of Kevin Kapsar, Manager of the Employee Relations Department, for this information. In his Declaration, Mr. Kapsar does indicate there are many potential witnesses. Butother than himself, Mr. Kapsar only mentions four² other witnesses by name or position with the company.

Similarly, Brown and the putative plaintiffs would find it most convenient to litigate near their place of residence in Michigan. Brown asserts that while PSCU has Michigan contacts, Plaintiffs have no Florida contacts. Brown also notes that PSCU is a national company doing business all over the country and litigating in Florida would be more burdensome to Plaintiffs than to PSCU.

PSCU also argues that "it is the convenience of non-party witnesses, rather than employee witnesses . . . that is the more important factor and is accorded greater weight." Steelcase Inc. v. Smart Techs., 336 F. Supp. 2d 714, 720-721 (W.D. Mich. Mar. 5, 2004); see also Smith v. Hyphon, Inc., 578 F. Supp. 2d 954, 963 (M.D. Tenn. Sept. 22, 2008). Although PSCU mentions one former employee, who is a nonparty witness, PSCU does not name this individual or what specific knowledge they would testify about.

PSCU argues that Brown and the other plaintiffs have identified no...