Dress v. Capital One Bank (USA), N.A.

368 F.Supp.3d 178

Susan DRESS, individually and on behalf of all others similarly situated, Plaintiff,

v.CAPITAL ONE BANK (USA), N.A., Defendant

CIVIL ACTION NO. 4:18-cv-40064

United States District Court, D. Massachusetts.

Filed March 22, 2019

Sophia Goren Gold, Pro Hac Vice; Jeffrey D. KaLiel, Pro Hac Vice; Kaliel PLLC, Jason S. Rathod, Pro Hac Vice; Nicholas A. Migliaccio, Pro Hac Vice; Migliaccio & Rathod, LLP, Washington, DC, Patrick J. Sheehan, Whatley Kallas, LLP, Boston, MA, for Plaintiff.

Andrew Soukup, Pro Hac Vice; Michael M. Maya, Covington & Burling, Washington, DC, for Defendant.

MEMORANDUM OF DECISION AND ORDER ON DEFENDANT CAPITAL ONE BANK'S MOTION TO TRANSFER VENUE

TIMOTHY S. HILLMAN, UNITED STATES DISTRICT JUDGE

Introduction

This is a putative class action suit brought pursuant to 28 U.S.C. § 1331(d)(2) and (6) by Susan Dress (named Plaintiff) against Capital One (Defendant). The suit is brought on behalf of Capital One consumers in the United States ("National Class") for a claim of breach of contract and breach of the covenant of good faith and fair dealing, and in Massachusetts ("Massachusetts Subclass") on a third claim alleging unfair or deceptive acts or practices violating M.G.L.A. chapter 93A §§ 2 and 9. Plaintiff claims Defendant breached their credit card contract by charging interest to her and members of the class on amounts that were paid in full before the due date, an alleged express violation of their terms.

On May 25, 2018, Defendant filed a motion to transfer this case to the Eastern District of Virginia pursuant to 28 U.S.C. § 1404(a), when only a couple months earlier, Plaintiff's husband brought forth a nearly identical lawsuit in the Eastern District of Virginia. That case was dismissed by the Plaintiff eleven days after it was filed and before there was any substantive action taken. Plaintiffs oppose the motion to transfer. For the reasons described below, the motion to transfer is granted .

Background

In 2009, Mrs. Dress, a citizen of Massachusetts who works and lives in the Commonwealth, opened a credit card account with Capital One, which is headquartered in McLean, Virginia in the Eastern District of Virginia. The credit card came with an annual fee and no rewards program. Sometime around 2017 and at Mrs. Dress' request, Capital One provided her with an upgraded Quicksilver Platinum MasterCard credit card with no annual fee and a rewards program. The upgraded credit card's agreement specifically prohibited the assessment of residual interest charges by promising an interest-free grace period on purchases paid off before the due date. Mrs. Dress, however, noticed that she was charged interest on all new purchases even though she had paid off her entire statement balance before the due date. Mrs. Dress claims this charge violates the credit card agreement, which specifically states that Capital One, "would not charge you interest on any new transactions ... if you paid the total balance across all Segments of your Account in full by the due date on your statement each month." Plaintiff alleges that without notifying customers, Capital One eliminates the grace period for all new purchases if a consumer does not pay off her entire statement balance in a given month.

Plaintiff files this action on behalf of herself and the national class alleging Capital One affirmatively misrepresented and omitted in its contracts that if a consumer fails to pay off his or her entire balance by the statement due date, Capital One will revoke the interest-free grace period on all future purchases and collect residual interest. Plaintiff claims breach of contract and breach of the covenant of good faith and fair dealing on behalf of herself and the national class. On behalf of herself and the Massachusetts subclass, Plaintiff alleges a violation of M.G.L.A. c. 93A §§ 2 and 9. Section 2 prohibits "unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce," and § 9 permits any consumer injured by a violation of M.G.L.A. c. 93A § 2 to bring a civil action for damages and injunctive relief. Mrs. Dress brought this action in this Court. The credit card agreement signed by Mrs. Dress contains a Virginia choice of law provision, stating that all claims asserted on behalf of a putative nationwide class will be governed by Virginia law.¹

This action is nearly identical to the action Plaintiff's husband, David Dress, brought in the Eastern District of Virginia before this case was filed. Mr. Dress filed a putative class action lawsuit against Capital One in the Eastern District of Virginia, claiming breach of contract and breach of the implied covenant of good faith. Eleven days after filing it and after a judge was assigned to the case, Mr. Dress dismissed his complaint. Two months later and represented by the same counsel, Mrs. Dress filed her suit against Capital One alleging the same claims in a complaint nearly verbatim to that of her husband. Defendant then filed this motion to transfer, claiming the private and public factors, including allegations of forum-shopping, make the Eastern District of Virginia the more convenient and proper venue.

Standard of Review

In the interest of justice and for the convenience of the parties and witnesses, a federal district court may transfer a case to a different judicial district where that case may have been brought. 28 U.S.C. § 1404(a). Section 1404(a) requires a judge "adjudicate motions for transfer according to an individualized, case-by-case consideration of convenience and fairness." IMS Global Learning Consortium, Inc. v. Schools Interoperability Framework Ass'n, 2018 WL 662479, at *2 (D. Mass. 2018) (internal quotation marks omitted). Because in either venue one party will be inconvenienced, the court must determine if a transfer is in the interest of justice by weighing the private and public factors such as "1) the plaintiff's choice of forum, 2) the relative convenience of the parties, 3) the convenience of the witnesses and the location of the documents, 4) any connection between the forum and the issues, 5) the law to be applied and 6) the state or public interests at stake." Id. ; see Vass v. Blue Diamond Growers , 2015 WL 2226260, at *4 (D. Mass. 2015). The party seeking transfer holds the burden of proof. See Vass , 2015 WL 2226260, at *4.

Discussion

Personal jurisdiction exists over a corporation where it has its principal place of business, and Capital One's headquarters are in the Eastern District of Virginia. Daimler AG v. Bauman , 571 U.S. 117, 137, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014). It is undisputed that jurisdiction in either the Eastern District of Virginia or the District of Massachusetts is proper. Therefore, the court must consider the private and public interest factors to determine if transfer is appropriate, and will promote the convenience of the parties and witnesses and serve the interest of justice. See Vass , 2015 WL 2226260, at *4.

There is a strong presumption in favor of the plaintiff's choice of forum. See IMS Global Learning Consortium, Inc. , 2018 WL 662479, at *2. As a Massachusetts citizen and resident, Plaintiff has a legitimate interest in litigating her claims in her home district. In putative class action suits, however, the plaintiff's choice of forum deserves considerably less weight. See Johnson v. N.Y. Life Ins. Co. , 2013 WL 1003432, at *3 (D. Mass. 2013) ("The court recognizes that generally, there is a strong presumption in favor of plaintiffs' choice of forum. However, the weight accorded to a plaintiff's choice of forum varies with the circumstances of the case. A plaintiff's choice of forum is less significant, for example, in the context of class actions." (citations omitted) (internal quotation marks omitted) ). Though Mrs. Dress is a Massachusetts resident, she filed this suit on behalf of herself and all others similarly situated throughout the United States, in addition to a Massachusetts subclass. Therefore, Plaintiff's choice of forum is given considerably less weight because she brings a putative class action suit on behalf of persons across the country. Cf. Vass, 2015 WL 2226260, at *6 (denying a motion to transfer to California from Massachusetts in part because plaintiff brought a class action suit limited only to Massachusetts residents).

Another factor to consider is the convenience and location of the parties, material witnesses, and documents. See Rosenthal v. Unum Group , 2018 WL 1250483, at *2 (D. Mass. 2018). Here, Plaintiff, one of potentially many witnesses nationwide, resides in Massachusetts, and Defendant's headquarters are in the Eastern District of Virginia. Plaintiff contends that since Capital One previously litigated small claims cases in Massachusetts, litigating in this district is not inconvenient. However, Defendant asserts that no material witnesses in this case reside in Massachusetts.

The court must also consider the financial burden that transfer may impose on either party. See Sigros v. Walt Disney World Co. , 129 F.Supp.2d 56, 71 (D. Mass. 2001) ("The balance of convenience focuses on the comparative financial abilities of the parties and the cost of litigation should be borne by the party in the best position to absorb and spread it."). Here, Mrs. Dress asserts she is a woman of modest means and less able to absorb the costs and difficulty of litigating in a distant forum. On the other hand, Capital One is a multi-national corporation which can more easily bear the cost of litigation in Massachusetts, as it has done in small claims cases in the past. See Sigros , 129 F.Supp.2d at 71. This factor favors the Plaintiff.

"The convenience of witnesses is an extremely important, if not the most important, factor to be analyzed in determining whether to change a litigation's venue." Vass , 2015 WL 2226260, at *5 (quoting Gemini Investors, Inc. v. Ameripark, Inc. , 542 F.Supp.2d 119, 126 (D. Mass. 2018) (internal...