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Michael M. Fraser, As An Individual and On Behalf of All Others Similarly Situated v. Genesco

September 28, 2011

MICHAEL M. FRASER, AS AN INDIVIDUAL AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
GENESCO, INC., DEFENDANT.



The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

On March 3, 2011, Plaintiff Michael Fraser ("Fraser") initiated this putative class action against Genesco, Inc. ("Genesco"), alleging violations of California's Song-Beverly Credit Card Act of 1971, California Civil Code § 1747, et seq., and Unfair Competition Law, California Business & Professions Code § 17200.

Presently before the Court is the parties' Joint Motion to Transfer this case to the Northern District of California pursuant to 28 U.S.C. § 1404(a) ("Motion"). For the following reasons, the parties' Motion is GRANTED.*fn1

BACKGROUND

In his Complaint before this Court, Fraser alleges that Genesco impermissibly requests customers' personal identification information when conducting retail credit card purchase transactions. At approximately the same time Fraser filed his suit, another individual, Frank Pabst ("Pabst"), filed a separate class action, this one in the Northern District of California, also arising out of Genesco's alleged violations of the Song-Beverly Credit Card Act and California common law. Request for Judicial Notice, ¶ 2, Exh. 2. Pabst subsequently filed a Motion to Transfer and Coordinate Multidistrict Litigation with the Judicial Panel on Multidistrict Litigation ("JPML") pursuant to 28 U.S.C. § 1407, which governs multi-district litigation ("MDL"). Id., ¶ 3, Exh. 3 at 2 and Schedule B. Pending the JPML's decision, parties in both the Fraser action and the Pabst action filed joint motions to stay those proceedings, which were granted.

The JPML has since denied the parties' MDL request. Id., ¶ 3, Exh. 3 at 3-4. Despite the JPML's finding that the cases "unquestionably involve common factual and legal issues," the JPML determined that each of the cases could have been brought in any district in California and that transfer pursuant to 28 U.S.C. § 1404(a) was thus the preferable mechanism under which to proceed. Id.

On August 31, 2011, parties in the Fraser action thus filed the instant Motion to transfer this case to the Northern District. The parties argue their request should be granted because: 1) they stipulate to the transfer for the purpose of consolidating the Fraser and Pabst actions; 2) absent transfer, there is a high risk that multiple courts could issue inconsistent rulings; 3) absent transfer, the parties will be required to inefficiently duplicate their efforts in different courts; 4) the Northern District is a more convenient forum for the parties and witnesses; 5) the Northern District's docket is less congested than the Eastern District's docket; and 6) the JPML endorsed the use of discretionary transfers, as opposed to § 1407 procedures, to coordinate these actions. The parties' arguments are well-taken.

STANDARD

A court may transfer a case to another district for the convenience of parties and witnesses, and in the interests of justice. 28 U.S.C. § 1404(a) provides for such transfer, stating in pertinent part as follows:

For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any action to any other district or division where it might have been brought.

The Court has discretion in deciding whether such transfer is warranted based on an "individualized, case-by-case consideration of convenience and fairness." Van Dusen v. Barrack, 376 U.S. 612, 622 (1964). As the language of the transfer statute suggests, in order to prevail on a motion to transfer under § 1404(a), the moving party must show that the new forum is one in which the action could originally have been brought. Commodity Futures Trading Comm'n v. Savage, 611 F.2d 270, 278-79 (9th Cir. 1979). Once the Court determines a case could have been brought before the proposed transferee court, here the Northern District of California, it must consider a number of private and public factors relating to the interests of the parties and the judiciary, including: 1) the plaintiff's choice of forum; 2)convenience of the parties; 3) the convenience of the witnesses; 4) the ease of access to the evidence; 5) the familiarity of each forum with the applicable law; 6) the local interest in the controversy; and 7) administrative difficulties flowing from court congestion in the respective potential forums. Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986).

ANALYSIS

As stated above, in determining the propriety of transfer under 28 U.S.C. § 1404(a) the Court must first look to whether the proposed transferee district, here the Northern District of California, is one in which Plaintiffs' action could originally have been brought. Commodity Futures Trading Comm'n, 611 F.2d at 279. If that inquiry yields a positive result, the Court must then examine a number of factors relating to the interests of both the parties and the judiciary, including the plaintiff's choice of forum, the convenience of the parties and the witnesses, access to evidence, local interests, and relative court congestion. Decker Coal, 805 F.2d at 843.

The preliminary question is easily answered here. It is uncontroverted that this action could have been brought in the Northern District of California. The Northern District, like this Court, has subject matter jurisdiction over Fraser's claims pursuant to 28 U.S.C. § 1332(d)(2) because Fraser and other putative class members are California citizens and Genesco is a Tennessee citizen. See Fraser Complaint, ¶ 1. In addition, the putative class members' claims ...


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