FREDA L. WOLFSON District Judge.
This matter comes before the Court on Defendant Ampsec Services, LLC's ("Defendant" or "Amspec") motion, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss the putative collective action
The following facts are drawn from the respective complaints filed in these matters, unless otherwise noted.
On July 24, 2014, plaintiffs Charles Barbara and Robert Martinez, Jr. ("Texas Plaintiffs") filed a collective-action lawsuit against Ampsec in the United States District Court for the Southern District of Texas on behalf of Amspec's inspectors and dispatchers, alleging violations of the overtime and minimum wage provisions of the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C., § 201, et seq. ("Texas Action"). Tx. Compl. ¶¶ 1-4. The complaint in the Texas Action asserts two claims (1) violation of the FLSA for failure to pay overtime, id. at ¶¶ 45-56, and (2) violation of the FLSA for failure to pay minimum wage, id. at ¶¶ 57-63.
The Texas Plaintiffs allege that Amspec (1) disguised certain forms of compensation "as reimbursed expenses for the sole purpose of excluding them from the proper overtime compensation"; (2) compensated its employees "based on an illegal adoption of the fluctuating work week method" of pay ("FWW")," an alternative system of calculating overtime that allows for a half-time, as opposed to a one and one-half time, overtime multiplier; and (3) "misclassif[ied] its dispatchers as exempt from overtime pay" under the FLSA. Id. at ¶¶ 22, 25, 35. According to the Texas Plaintiffs, "these misdoings also violate the minimum wage provisions of the FLSA because, when accounting for the amount of hours worked by Texas plaintiffs and class members during certain weeks, their average pay dipped below $7.25 an hour." Id. at ¶ 58.
On April 16, 2015, while the Texas Action was pending, a decision was issued in Hanson v. Camin Cargo Control, Inc., No. H-13-0027, 2015 U.S. Dist. LEXIS 49896 (S.D. Tex. Apr. 16, 2015). The plaintiffs in Camin Cargo, who were represented by the same attorneys representing Texas Plaintiffs in the Texas Action (and the plaintiffs in this action), had filed an unrelated collective action on behalf of the inspectors and dispatchers of Camin Cargo Control, Inc., an oil and gas inspection company. Like in the Texas Action, the plaintiffs in Camin Cargo alleged that their employer violated the overtime provisions of the FLSA by (1) disguising compensation as reimbursed expenses, (2) illegally adopting the FWW in calculating overtime premiums, and (3) misclassifying dispatchers as exempt from overtime pay. Id. at *3-4, 7, 15, 22. Although the Camin Cargo decision was favorable to the plaintiffs with respect to liability on these issues, the court disagreed with the plaintiffs' method for calculating damages, which, in turn, limited the plaintiffs' total recovery. Id. at *15, 22, 26.
On May 29, 2015, a month after the Camin Cargo decision and almost eleven months after the Texas Action was commenced, Plaintiffs filed the instant lawsuit ("NJ Action"), and filed an Amended Complaint on June 19, 2015. The NJ Action is a collective action lawsuit only on behalf of Amspec's inspectors alleging violations of the overtime and anti-retaliation provisions of the FLSA. The Amended Complaint alleges that Amspec "diluted its employees' overtime rate of pay by disguising compensation as a reimbursed expense," and that "Amspec...took advantage of the [FWW]." Am. Compl. ¶ 1; see id. ¶¶ 65-77. The Amended Complaint in the NJ Action asserts two claims under the FLSA (1) failure to pay overtime, id. at ¶¶ 65-70, and (2) retaliation, id. at ¶¶ 71-77. The NJ Action also includes two state law class action claims against Amspec alleging violations of the New Jersey State Wage and Hour Law ("NJWHL"), N.J.S.A. 3411-56a to — 56a38, and the Pennsylvania Minimum Wage Act of 1968 ("PMWA"), 43 P.S. §§ 333.101-333.115. Id. ¶¶ 4-5, 78-80, 81-87.
On July 24, 2015, Defendant filed the instant motion to dismiss based on the first-filed rule or, in the alternative, to transfer the matter to the United States District Court for the Southern District of Texas based upon 28 U.S.C. §1404(a).
Under the "first-filed rule," the Third Circuit has instructed that "in all cases of federal concurrent jurisdiction, the court which first has possession of the subject must decide it." EEOC v. Univ. of Pa., 850 F.2d 969, 971 (3d Cir. 1988) (quoting Crosley Corp. v. Hazeltine Corp., 122 F.2d 925, 929 (3d Cir. 1941), cert. denied, 315 U.S. 813 (1942)). "The first-filed rule counsels deference to the suit that was filed first, when two lawsuits involving the same issues and parties are pending in separate federal district courts." Honeywell Int'l, Inc. v. Int'l Union, 502 F. Appx. 201, 205 (3d Cir. 2012) (citing Univ. of Pa., 850 F.2d at 971). The Third Circuit has explained that, for the first-filed rule to apply
Grider v. Keystone Health Plan Cent., Inc., 500 F.3d 322, 334 n.6 (3d Cir. 2007) (quotations and citations omitted)
In applying this test here, it is clear that the subject matter of the two actions is not "truly duplicative."
Defendant's argument — that this Court should apply the first-filed rule because Plaintiffs' choice of New Jersey is blatant forum-shopping which seeks to avoid the effects of the Camin Cargo decision by adding claims and parties — turns the analysis on its head. This Court's discretion exists to "retain jurisdiction given appropriate circumstances justifying departure from the first-filed rule." Univ. of Pa., 850 F.2d at 972 (emphasis added). It is not within this Court's discretion to apply the first-filed rule to forego jurisdiction when the rule's narrow requirements are not met. Moreover, the analysis of forum-shopping as an exception to the first-filed rule has traditionally focused on whether the initial suit was the product of forum-shopping, not the later-filed suit. See id. at 976-77. Thus, although these arguments are relevant to the transfer analysis, discussed below, they do not impact the conclusion that the two actions are not "materially on all fours with each other," and, therefore, that the first-filed rule does not apply. See Grider, 500 F.3d at 334 n.6.
Accordingly, Defendant's motion to dismiss this matter based on the first-filed rule is denied.
Although this Court denies Defendant's motion to dismiss on the basis of the first-filed rule, it may still transfer the matter under 28 U.S.C. § 1404(a).
Three factors must be considered when determining whether to grant a transfer under Section 1404(a) (1) the convenience of the parties, (2) the convenience of the witnesses, and (3) the interests of justice. Liggett Grp. Inc. v. R.J. Reynolds Tobacco Co., 102 F.Supp.2d 518, 526 (D.N.J. 2000) (citing 28 U.S.C. § 1404(a); Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995)). These factors are not exclusive, and must be applied in an "individualized analysis .. . made on the unique facts presented in each case." Id. at 526-27 (citations omitted). The first two factors have been refined into a non-exhaustive list of private and public interests that courts should consider. See Jumara, 55 F.3d at 879-80. As set forth below, a balance of the pertinent private and public interests, and consideration of the interests of justice, indicates that transfer of this matter to the United States District Court for the Southern District of Texas is appropriate.
Danka Funding, L.L.C. v. Page, Scrantom, Sprouse, Tucker & Ford, P.C., 21 F.Supp.2d 465, 474 (D.N.J. 1998) (citing Jumara, 55 F.3d at 879) (internal quotations omitted). The Court finds all of these factors are all either neutral or weigh in favor of transfer.
While a plaintiff's choice of forum is a "paramount concern" that is considered "presumptively correct," Lawrence v. Xerox Corp., 56 F.Supp.2d 442, 452 (D.N.J. 1999), "[t]he choice of forum by a plaintiff is simply a preference; it is not a right." Liggett, 102 F. Supp. 2d at 530. Although two of the named plaintiffs are residents of New Jersey, and a third is a Pennsylvania resident, where a plaintiff is suing on behalf of a putative class, courts have "afforded little deference to a [p]laintiff's choice of forum" because "in such actions the participation of the class representative is generally minimal" and "the potential members of the class will likely be scattered across the United States." Santomenno v. Transamerica Life Ins. Co., No. 11-736, 2012 U.S. Dist. LEXIS 44883, *15-17 (D.N.J. Mar. 30, 2012) (internal quotation marks and citations omitted); see also Prof. Adjusting Syss. of Am., Inc. v. Gen. Adjustment Bureau, Inc., 352 F.Supp. 648, 650 (E.D. Pa. 1972). Indeed, while the plurality of plaintiffs that have opted into this collective action are in Texas (35) (with 28 located in New Jersey), plaintiffs in California, Connecticut, Florida, Louisiana, Massachusetts, Maryland, Maine, New York, and Virginia have chosen to opt into this suit as well.
Plaintiffs argue that they worked for Defendant in New Jersey and, therefore, that their claims arose here (factor 3), and that their relative physical and financial condition as compared to Defendant (factor 4) weigh in favor of retaining this case in New Jersey. But, due to the diverse nature of the proposed putative classes, these factors are, at best, neutral, because by Plaintiffs' logic, the claims asserted on behalf of the putative class members from different states also arose in those states in which the putative class members work. And, as with the analysis of the Plaintiffs' choice of forum, the fact that the named plaintiffs will likely play a minimal role in this litigation renders factors 3 and 4 neutral. See Santomenno, 2012 U.S. Dist. LEXIS 44883, at *20-21.
The convenience of the witnesses must also be considered, but "only to the extent that the witnesses may actually be unavailable for trial in one of the fora." Jumara, 55 F.3d at 879. Although Plaintiffs argue that many of Defendant's "key witnesses" are located in New Jersey, the Court finds that this is not the case. Instead, Defendant's relevant witnesses are likely to be located in every state in which a plaintiff/class member was or is located as the record indicates that these members are spread throughout the United States. More importantly, neither party contends that those witnesses would not be available in either forum. Furthermore, "the convenience of witnesses [who] are employees of a party carries no weight because the parties are obligated to procure their attendance at trial," Mentor Graphics Corp. v. Quickturn Design Sys., 77 F.Supp.2d 505, 510 (D. Del. 1999), and, as the party requesting transfer, any inconvenience imposed on Defendant's own witnesses is borne by itself. See Koken v. Lexington Ins. Co., No. 04-2539, 2004 U.S. Dist. LEXIS 22192, at *11 (E.D. Pa. Nov. 2, 2004). Accordingly, this factor is neutral.
Finally, the Court must also consider "the location of books and records (only to the extent that the files could not be produced in the alternative forum)." "The technological advances of recent years have significantly reduced the weight of [this factor] in the balance of convenience analysis." Lomanno v. Black, 285 F.Supp.2d 637, 647 (E.D. Pa. 2003). Jumara, 55 F.3d at 879. While Plaintiffs argue that all relevant evidence is located in New Jersey, this argument is similarly rejected for the same reasons indicated above; Defendant's relevant records may be located in every location in which a class member was or is located, and, indeed, Plaintiffs themselves are not exclusively situated in New Jersey. Furthermore, Plaintiffs do not contend that evidence would be unavailable in either forum and, therefore, this factor carries "no weight." Copley v. Wyeth, Inc., No. 09-722, 2009 U.S. Dist. LEXIS 62440, at *18 (E.D. Pa. July 16, 2009); Coppola v. Ferrellgas, 250 F.R.D. 195, 200 (E.D. Pa. 2008). Accordingly, the Court finds the private interests weigh in favor of transfer.
Danka Funding, 21 F. Supp. 2d at 474 (citing Jumara, 55 F.3d at 879-80) (internal quotations omitted). The Court finds these interests are also all either neutral or favor transfer.
The parties have not argued, and the Court cannot discern, why a judgment rendered in this case in one forum would not be enforceable in the other and, accordingly, this factor does not weigh in favor of either forum. See Metro. Life Ins. Co. v. Bank One, N.A., No.'s 03-1882, 03-2784, 2012 U.S. Dist. LEXIS 137119, at *23-24 (D.N.J. Sept. 25, 2012); see also Moore's Federal Practice — Civil § 111.13 ("[W]hen both forums are federal district courts, this factor has little relevance because it is unlikely that there would be any significant difference in the difficulty of enforcing a judgment rendered by one federal forum or the other.") (citing Datasouth Computer Corp. v. Three Dimensional Technologies, Inc., 719 F.Supp. 446, 450 (W.D.N.C. 1989)). Similarly, local interests,
"[P]ractical considerations are relevant and warrant transfer if they could make the trial easy, expeditious, or inexpensive." Metro. Life, 2012 U.S. Dist. LEXIS 137119 at *21. "One practical consideration that supports transfer is efficiency. `To permit a situation in which two cases involving precisely the same issues are simultaneously pending in different District Courts leads to the wastefulness of time, energy and money that § 1404(a) was designed to prevent.'" Id. (quoting Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 26 (1960)). Although the presence of the FLSA retaliation claim (Count II) and the state law wage claims (Counts III and IV) renders the NJ Action sufficiently different to forego application of the first-filed rule, it is clear that both the Texas Action and the NJ Action contain a substantially similar claim concerning failure to pay overtime properly under the FLSA. Compare Tx. Compl. ¶¶ 20-35, 45-56, with Am. Compl. ¶¶ 25-29, 65-70. Therefore, this factor weighs in favor of transferring this matter to Texas, where discovery is already underway concerning Defendant's overtime payment policies. See Certification of Patrick W. McGovern (dated July 24, 2015) [hereinafter "McGovern Cert."] ¶¶ 10-11.
Having weighed all the relevant factors, the Court finds that interests of justice favor a transfer to the Southern District of Texas. Indeed, while the first-filed rule is construed narrowly by the Third Circuit, the "interests of justice" inquiry under Section 1404 is not so limited. "Where, as here, related lawsuits are pending elsewhere, transferring a case serves not only private interests but also the interests of justice because it eliminates the possibility of inconsistent results, and conserves judicial resources." CIBC World Mkts., Inc. v. Deutsche Bank Sec., Inc., 309 F.Supp.2d 637, 651 (D.N.J. 2004) (citations omitted); see also Am. Inst. for History Educ., LLC v. E-Learning Sys. Int'l LLC, No. 10-2607, 2010 U.S. Dist. LEXIS 120946, at *7 (D.N.J. Nov. 16, 2010).
In summary, while the first-filed rule is inapplicable here, application of the Section 1404 factors weighs in favor of transferring this matter the United States District Court for the Southern District of Texas.
For the foregoing reasons, Defendant's motion to dismiss this matter under the first-filed rule is denied, but pursuant to 28 U.S.C. §1404(a), this matter is transferred the United States District Court for the Southern District of Texas.
