McGowan v. Camp Agawak, Ltd.

DAVID MCGOWAN, Plaintiff, v. CAMP AGAWAK, LTD., and MARY FRIED, Defendants.

Case No. 19-cv-01532

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

October 1, 2020

Judge Martha M. Pacold

MEMORANDUM OPINION AND ORDER

Plaintiff David McGowan brought this action against Defendants Camp Agawak, Ltd. and Mary Fried in the Circuit Court of Cook County, Illinois. Defendants removed the case. Defendants move to dismiss under Rule 12(b)(2) for lack of personal jurisdiction and under Rule 12(b)(3) for improper venue. In the alternative, defendants move for transfer to the Western District of Wisconsin pursuant to 28 U.S.C. § 1404(a). For the following reasons, the motion to dismiss for improper venue is denied and the motion to transfer is granted. The court does not address the motion to dismiss for lack of personal jurisdiction; it is denied as moot. The case is transferred to the Western District of Wisconsin under § 1404(a).

Background

The court draws the following facts from the complaint and the parties' declarations, drawing all reasonable inferences in McGowan's favor. See Deb v. SIRVA, Inc., 832 F.3d 800, 808-09 (7th Cir. 2016); Faulkenberg v. CB Tax Franchise Sys., LP, 637 F.3d 801, 806 (7th Cir. 2011).

Camp Agawak, Ltd. is a corporation that "owns and operates Camp Agawak, an overnight camp for girls, located in Minocqua, Wisconsin." Compl., [1-1] at 8 ¶ 4.¹ Minocqua is in northern Wisconsin, about 347 miles from Chicago. The summer camp "has been in operation since 1921" and "is located on 220 acres of land on Blue Lake, in the northwoods of Wisconsin." [14-1] ¶ 3.

Camp Agawak, Ltd. is a Wisconsin corporation, its principal place of business is in Wisconsin, and it has a registered agent in Wisconsin. [1-1] at 8 ¶ 3; [14-1] ¶ 15. It is not registered to do business in Illinois, and it has no offices outside Wisconsin. [14-1] ¶ 15. Mary Fried, a resident of Wisconsin (the Madison area, [1] at 3 ¶ 13), has owned and been a director of the camp for the past thirty years. [14-1] ¶¶ 1-2. McGowan is a resident of Illinois. [22] at 17 ¶ 1.

In December 2017, Fried hired McGowan as an assistant director for the 2018 camp season. [14-1] ¶ 6. A former camp counselor referred McGowan to Fried. [14-1] ¶ 7. Fried and McGowan initially communicated via phone and email from their respective homes. [14-1] ¶ 7. McGowan then traveled to Madison to meet Fried in person before he was ultimately hired. [14-1] ¶ 8; [23] at 17 ¶ 4.

After he was hired, McGowan and Fried continued to communicate via phone and email. [14-1] ¶ 9. Additionally, McGowan attended Camp Agawak's annual Illinois camp reunion on February 11, 2018 at the Renaissance Chicago North Shore Hotel in Northbrook, Illinois. [14-1] ¶ 11-12. McGowan arrived early to assist with set-up and discussed his role and responsibilities with Fried before and after the event. [22] at 18 ¶ 7. On March 4, 2018, McGowan attended a new camper orientation event, which was held at the same hotel in Northbrook. [14-1] ¶¶ 10, 12. While Fried was in town for this event, she met with McGowan at the hotel to discuss his employment. [14-1] ¶ 12. According to McGowan, he was instructed to attend these events and Fried never suggested that his attendance was optional. [22] at 18 ¶ 7.

McGowan alleges that separately, Fried arranged for a former assistant director, Stephanie Tasman, to conduct around ten training sessions of at least 2 hours each with McGowan in Illinois between December 2017 and April 2018, and that these training sessions included a discussion of "Camp Agawak's purported zero-tolerance policies regarding drugs and alcohol on Camp property, and policies and strategies to deter and address under-age drinking, generally." [22] at 18-19 ¶ 12.

In April 2018, McGowan attended a Camp Agawak alumni event in Deerfield, Illinois. McGowan alleges that at this event, McGowan witnessed Fried's husband, Bill Furman, serving alcohol to minors. [22] at 19 ¶¶ 14-15. According to Fried, this event was put on by the Agawak Alumnae Foundation ("AAF"), a separate charitable entity; Camp Agawak played no role in hosting or paying for the event, and Camp Agawak did not require McGowan to attend. [24-1] at 3 ¶¶ 4-5.

Camp Agawak (again, in Minocqua) was in session for eight weeks during the summer of 2018, spanning June, July, and August 2018. [1-1] at 9 ¶ 11. However, the camp season included additional work by the staff before and after that period, including a week-long orientation, a post-camp session, and a clean-up period. [1-1] at 9-10 ¶¶ 12-13. McGowan and Fried agreed that for employment purposes,the 2018 "camp season" would end after the post-camp session in mid-August. [1-1] at 10 ¶ 14. However, McGowan alleges that they also agreed that McGowan would be paid for the season in bi-weekly installments spread out over the course of the 2018 calendar year. [1-1] ¶ 16.

Before the camp session began, Fried gave McGowan permission to design and purchase "custom hats and charm necklaces bearing the Agawak name and/or logo" to give away to campers. [1-1] at 11 ¶ 27. McGowan personally spent over $2,400 on "145 custom hats, and three hundred charm[s], and 150 necklaces." [1-1] at 11 ¶ 28. He gave some of those items away during the 2018 season but saved the majority and left them in his cabin in anticipation of his return in 2019. [1-1] at 14 ¶ 47.

McGowan alleges that during the 2018 camp season, there were more incidents in Minocqua involving Furman and underage drinking involving camp staff. [1-1] at 12-14 ¶¶ 35-43, 48. McGowan further alleges that when McGowan confronted Fried about these events, she "responded angrily" that he should "let [her] handle it." [1-1] at 14 ¶¶ 49-50.

McGowan alleges that at the end of the 2018 season, Fried assured McGowan that he did "an amazing job" and that she "definitely" wanted him to return for the 2019 season. [1-1] ¶ 51. McGowan and his wife relied on this assurance and left possessions in their Camp Agawak cabin. [1-1] at 14 ¶ 52; [22] at 20 ¶ 19. At the conclusion of the 2018 camp season, McGowan left Minocqua. [1-1] at 14 ¶ 52.

Fried claims that she met with McGowan on September 5, 2018, in Milwaukee, Wisconsin to discuss his performance issues. [14-1] ¶ 16. She then terminated McGowan's employment in an email on or around September 17. [1-1] at 15 ¶ 57. McGowan did not receive any bi-weekly payments from Camp Agawak after October 15, 2018. [1-1] ¶ 58. McGowan alleges that after McGowan's termination, Fried took McGowan's custom Agawak hats, necklaces, and charms from the cabin and only returned some of them to McGowan. [1-1] at 15-16 ¶¶ 61-64. McGowan alleges that Fried had previously promised McGowan that he could give those items away. [1-1] ¶ 63.

In February 2019, McGowan brought this six-count action for retaliatory and wrongful termination of employment (Count 1), violation of the Illinois Wage Payment and Collection Act (Count 2), breach of oral contracts (Count 3), unjust enrichment (Count 4), conversion (Count 5), and promissory estoppel (Count 6) in the Circuit Court of Cook County, Illinois. In March 2019, Defendants removed the case to this district. [1]. The court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1332(a). See [33].

Discussion

I. Motion to Dismiss

Defendants seek dismissal under Rule 12(b)(3) for improper venue. In evaluating a Rule 12(b)(3) motion, the court "takes all the allegations in the complaint as true unless contradicted by the defendant's affidavit and may examine facts outside the complaint." Bahoor v. Varonis Sys., Inc., 152 F. Supp. 3d 1091, 1094 (N.D. Ill. 2015). The court also construes "all facts" and draws "reasonable inferences" in favor of the plaintiff. Faulkenberg v. CB Tax Franchise Sys., LP, 637 F.3d 801, 806 (7th Cir. 2011). "In the context of a defendant's motion to dismiss for improper venue, the plaintiff bears the burden of proving that venue is proper." Video & Sound Serv., Inc. v. Intransa, Inc., No. 12-cv-07322, 2013 WL 1568062, at *2 (N.D. Ill. Apr. 12, 2013).

Both parties focus on the general federal venue statute, 28 U.S.C. § 1391. Defendants argue that venue is improper in the Northern District of Illinois under Section 1391(b)(2), which provides that a civil action may be brought in "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." McGowan argues the contrary.

However, venue in a case removed from state court is governed not by Section 1391 but by a different statutory provision, 28 U.S.C. § 1441(a). See 28 U.S.C. § 1390(c) ("This chapter shall not determine the district court to which a civil action pending in a State court may be removed, but shall govern the transfer of an action so removed as between districts and divisions of the United States district courts."); 28 U.S.C. § 1391(a) ("Except as otherwise provided by law—(1) this section shall govern the venue of all civil actions brought in district courts of the United States . . .") (emphasis added); Polizzi v. Cowles Magazines, Inc., 345 U.S. 663, 665 (1953) ("The venue of removed actions is governed by 28 U.S.C. (Supp. V) § 1441(a) . . ."); Allied Van Lines, Inc. v. Aaron Transfer and Storage, Inc., 200 F. Supp. 2d 941, 945 (N.D. Ill. 2002) ("Although the Seventh Circuit has not determined whether § 1391 or § 1441 applies to the venue of removed actions, courts in the Northern District of Illinois have applied § 1441 to analyze the venue of removed actions.") (citing cases); Wright & Miller, 14D Fed. Prac. & Proc. Juris. § 3804 (4th ed.) ("Section 1390(c) provides that the general venue provisions do not apply to cases removed from state to federal court. Instead, Section 1441(a) allows removal only to the federal district embracing the state court in which the case was filed.").

Section 1441(a) states: "Except as otherwise expressly...