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Markovic v. Appriss, Inc.

United States District Court, S.D. Indiana, Indianapolis Division

April 7, 2014

SHAYA MARKOVIC, et al., Plaintiffs,
v.
APPRISS, INC., Defendant.

ORDER DENYING MOTION TO TRANSFER

JANE MAGNUS-STINSON, District Judge.

Presently pending before the Court is Defendant Appriss, Inc.'s ("Appriss") Motion to Transfer Case. [Filing No. 35.] Appriss requests that this Court transfer this case to the Western District of Kentucky pursuant to 28 U.S.C. § 1404(a). [Filing No. 35; Filing No. 36.] For the following reasons, the Court DENIES Appriss' motion.

I.

BACKGROUND

The following is undisputed, unless otherwise noted. Plaintiffs Shaya Markovic and Bijan Razilou allege that they were in separate automobile accidents in Florida. [Filing No. 56 at 1.] Plaintiffs allege that after those accidents, they each received an automated telephone call from telephone number XXX-XXX-XXXX playing a prerecorded voice message "urging them to purchase a copy of police reports through defendant Appriss' website www.buycrash.com." [Filing No. 56 at 1-3.] Plaintiffs allege that Appriss used automated equipment and prerecorded messages to make those calls and that Plaintiffs did not consent to receive the calls. [Filing No. 56 at 1-3.] Plaintiffs allege that Appriss' actions violate the Telephone Consumer Protection Act ("TCPA"), and they seek statutory damages and injunctive relief on their behalf and on behalf of a putative class. [Filing No. 56 at 4-9.]

Both Plaintiffs reside in Florida.[1] [Filing No. 56 at 2.] Appriss is a Delaware corporation with its headquarters in Kentucky. [Filing No. 35-1 at 2; Filing No. 35-3 at 1.] Appriss admits that it maintains an office in Martinsville, Indiana, although it contends that office is minimally involved with the events surrounding Plaintiffs' claim. [Filing No. 35-1 at 2; Filing No. 35-3 at 1.]

Appriss asks this Court to transfer this action to the Western District of Kentucky. [Filing No. 35.] It contends that doing so is more convenient for the parties and witnesses because no events took place in Indiana, and it claims there is no evidence here. [Filing No. 35-1 at 3.] Plaintiffs object to Appriss' transfer request.[2] [Filing No. 44.]

II.

APPLICABLE STANDARD

A civil action may be brought in a judicial district in which any defendant resides; in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated; or, if there is no district in which an action may otherwise be brought, any judicial district in which any defendant is subject to the district court's personal jurisdiction with respect to such action. 28 U.S.C. § 1391.

Appriss admits that venue is proper in this District. [Filing No. 46 at 4 ("[A]s for Appriss doing business in Indiana... that merely is why venue is proper in this district.").] Appriss requests transfer to the Western District of Kentucky pursuant to 28 U.S.C. § 1404(a), which provides "[f]or the convenience of 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." The statute permits a "flexible and individualized analysis and affords district courts the opportunity to look beyond a narrow or rigid set of considerations in their determinations." Research Automation, Inc. v. Schrader-Bridgeport Int'l, Inc., 626 F.3d 973, 978 (7th Cir. 2010).

With respect to the convenience evaluation, courts generally consider the availability of and access to witnesses, as well as each party's access to and distance from resources in each forum. Id. Related factors include the location of material events and the relative ease of access to sources of proof. Id.

The "interest of justice" is a separate element relating "to the efficient administration of the court system." Id. For this element, courts typically look at docket congestion and likely speed to trial in the transferor and potential transferee districts, each court's relative familiarity with the relevant law, the respective desirability of resolving controversies in each locale, and the relationship of each community to the controversy. Id. The interest of justice "may be determinative, warranting transfer or its denial even where the convenience of the parties and witnesses points toward the opposite result." Id.

Unless the balance of factors strongly is in favor of the defendant, a plaintiff's choice of forum "should rarely be disturbed." See In re Nat'l Presto Indus., Inc., 347 F.3d 662, 665 (7th Cir. 2003) ("When plaintiff and defendant are in different states there is no choice of forum that will avoid imposing inconvenience; and when the inconvenience of the alternative venues is comparable there is no basis for a change of venue; the tie is awarded to the plaintiff...."); id. at ...


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