United States District Court, E.D. Virginia
XINIS UNITED STATES DISTRICT JUDGE
in this Fair Labor Standards Act case is Defendant's
motion to transfer venue (ECF No. 17) and partial motion to
compel arbitration and stay litigation. ECF No. 18. The
motions are fully briefed, and no hearing is necessary.
See Loc. R. 105.6. For the following reasons, the
Court grants the motion to transfer and denies the motion to
compel arbitration without prejudice to re-file in the
Eastern District of Virginia, if appropriate.
Apex Systems, LLC (“Apex”) is a staffing agency
that recruits job candidates for various employers. ECF No. 1
¶ 10. Apex's corporate headquarters are located in
Glen Allen, Virginia, which is also the location for its
human resources and payroll departments and related corporate
records. ECF No. 17-3 ¶¶ 2, 6, 10. The human
resources and payroll departments develop and implement the
practices and procedures governing employment matters for
Apex's branch offices located throughout the country.
Id. ¶¶ 7-8.
Emily Dietrick, Steven Connell, Brock Deel, Monica Jones, and
Tyler Suite all worked for Apex as “Recruiters.”
Their job duties included searching online databases to
identify and screen potential job candidates. Id.
¶¶ 11-16. The named Plaintiffs reside in different
states and worked for different Apex branches. None worked or
reside in Maryland.
January 2, 2019, Plaintiffs, individually and on behalf of
similarly situated employees, filed this nationwide class
action against Apex for its alleged failure to pay overtime
wages in violation of the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201 et seq.
ECF No. 1 ¶¶ 68-79. Plaintiffs do not bring any
state law claims or pursue class-wide relief under Rule 23 of
the Federal Rules of Civil Procedure. Apex timely moved to
transfer this case to the United States District Court for
the Eastern District of Virginia, Richmond Division. ECF No.
propriety of transfer is governed by 28 U.S.C. §
1404(a), which states, “[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 or to any district
or division to which all parties have consented.” To
prevail on a transfer motion, “the defendant must show
by a preponderance of the evidence that the proposed transfer
will better and more conveniently serve the interests of the
parties and witnesses and better promote the interests of
justice.” Jones v. Koons Auto., Inc., 752
F.Supp.2d 670, 680-81 (D. Md. 2010) (quoting Helsel v.
Tishman Realty & Constr. Co., 198 F.Supp.2d 710, 711
(D. Md. 2002)) (internal quotation marks omitted). The
defendant may not rely on conclusory allegations of hardship
to meet this burden. Rather, it must demonstrate, by
affidavit or otherwise, “the hardships [it] would
suffer if the case were heard in the plaintiff's chosen
forum.” Dow v. Jones, 232 F.Supp.2d 491, 499
(D. Md. 2002).
deciding the question of transfer, the Court first considers
whether the action could have been brought in the requested
forum. In re: Volkswagen of Am., Inc., 545 F.3d 304,
312 (4th Cir. 2008). If venue is proper in the requested
forum, the Court next considers: “(1) the weight
accorded the plaintiff's choice of venue; (2) witness
convenience and access; (3) convenience of the parties; and
(4) the interest of justice.” Lynch v. Vanderhoef
Builders, 237 F.Supp.2d 615, 617 (D. Md. 2002).
requests transfer to the Eastern District of Virginia,
Richmond Division. Plaintiffs do not contest that venue would
be proper in that court. ECF No. 20 at 3; see also
29 U.S.C. § 216(b); 28 U.S.C. § 1391(b)(1), (c)(2).
Because venue is proper in the requested forum, the Court
turns to the above-described factors.
Plaintiffs' Choice of Venue
the “plaintiff's ‘choice of venue is entitled
to substantial weight.'” Trs. of the Plumbers
and Pipefitters Nat'l Pension Fund v. Plumbing
Servs., 791 F.3d 436, 444 (4th Cir. 2015) (quoting
Bd. of Trs. v. Sullivant Ave. Props., LLC, 508
F.Supp.2d 473, 477 (E.D. Va. 2007)). In class actions,
however, courts often accord less weight to the
plaintiff's choice where several plaintiffs, each
connected to different forums, may be able to demonstrate
that each respective forum is appropriate for adjudication of
the class claims. Kukich v. Electrolux Home Prods.,
Inc., No. ELH-16-3412, 2017 WL 345856, at *7 (D. Md.
Jan. 24, 2017).
FLSA class actions, courts outside this Circuit are
divided as to the weight accorded the plaintiff's choice
of forum. Compare Farrior v. George Weston Bakeries
Distribution, Inc., No. 08-CV-3705 JFB WDW, 2009 WL
113774, at *4 n.3 (E.D.N.Y. Jan. 15, 2009) (“[T]he
rationale underlying giving less weight to plaintiff's
choice of forum in a class action applies to this FLSA
collective action . . . .”), with Holmes v.
Sid's Sealants, LLC, No. 16-cv-821, 2017 WL 3834806,
at *5 (W.D. Wis. Aug. 31, 2017) (finding that “cases
under section 216 of the FLSA warrant greater deference to
the plaintiff's choice of forum”). Some have
reasoned that the “opt-in” structure of the FLSA
class action “‘strongly suggests that Congress
intended to give plaintiffs considerable control over the
bringing of a FLSA action, '” thus meriting greater
deference to a plaintiff's choice of venue. See
Salinas v. O'Reilly Auto., Inc., 358 F.Supp.2d 569,
571 (N.D. Tex. 2005) (quoting Alix v. Shoney's,
Inc., 1997 WL 66771, at *2 (E.D. La. Feb. 18, 1997)).
greater deference to the plaintiff's choice of forum
makes good sense where, for example, the plaintiffs
affirmatively chose to file a new action rather than opting
into ongoing litigation in another forum. Johnson v. Big
Lots Stores, Inc., No. 04-3201, 2005 WL 357200, at *4
(E.D. La. Feb. 10, 2005) (“[T]ransferring this action
to the Eastern District of Texas may have the de facto effect
of forcing the plaintiffs to ‘opt-in' to the Texas
suit.”). Or perhaps where the “plaintiffs had
already ‘opted-in' to the lawsuit, ” thus