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Rachel Eastman and Academic Software, On Behalf of Themselves v. First Data Corporation and

April 5, 2011

RACHEL EASTMAN AND ACADEMIC SOFTWARE, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
PLAINTIFFS,
v.
FIRST DATA CORPORATION AND
FIRST DATA MERCHANT SERVICES CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Walls, Senior District Judge

NOT FOR PUBLICATION

OPINION

Defendants First Data Corporation and First Data Merchant Services Corporation (collectively "defendants" or "First Data") move to transfer this matter pursuant to 28 U.S.C. § 1404(a). Plaintiffs oppose the motion. Pursuant to Rule 78 of the Federal Rules of Civil Procedure, the motion is decided without oral argument. Defendants' motion to transfer is denied.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Rachel Eastman resides in Dumont, New Jersey, and has been a New Jersey resident her entire life. (Compl. ¶ 7, Eastman Decl. ¶ 1.) She and Sandra Pomerantz (also a New Jersey resident) are co-owners of plaintiff corporation Academic Software. (Compl. ¶ 8, Eastman Decl. ¶¶ 2-3.) Academic Software is small business incorporated under the laws of New Jersey, with its principal (and only) place of business located in Teaneck, New Jersey. (Eastman Decl. ¶ 3.)

First Data provides credit card processing equipment and services for small business owners. In October of 2008, Ms. Eastman and Academic Software executed a lease with First Data for a credit card point of sale terminal. (Compl. ¶ 54.) The plaintiffs filed a class action complaint against First Data Corporation and First Data Merchant Services Corporation on September 21, 2010. (ECF No. 1.) The plaintiffs allege that the defendants defrauded them and "thousands of small business by charging an exorbitant and unconscionable fee under a purported lease agreement for credit and debit card equipment." (Compl. ¶ 1.) The plaintiffs allege that First Data withheld and concealed material information, "allowing it to impose unconscionable charges and excessive fees." (Id.) The plaintiffs state that "First Data fraudulently induced Plaintiffs to accept an unconscionable lease for point of sale ("POS") credit card and debit card processing equipment," and that First Data "subjected Plaintiffs to charges not included on the merchant agreements for the POS leases." (Compl. ¶¶ 2-3.)

Ms. Eastman and Academic Software seek to represent "[a]ll customers in the State of New Jersey who leased point of sale credit and/or debit processing equipment from Defendants from the time period set by the applicable statute of limitations prior to the filing of this action to the date of judgment." (Compl. ¶ 6.) The complaint pleads violations of New Jersey common law and New Jersey statutory law, and includes claims for: breach of contract, breach of the covenant of good faith and fair dealing, fraudulent concealment, fraudulent inducement, violation of the New Jersey Consumer Fraud Act, unjust enrichment and declaratory relief. (Compl. ¶¶ 79-139.)

First Data Corporation is a Delaware corporation with its principal place of business in Atlanta, Georgia. (Answer ¶ 9.) First Data Merchant Services (FDMS) is a Florida corporation with its principal place of business in Atlanta, Georgia. (Answer ¶ 10.) First Data has facilities located in Melville, New York, and elsewhere. (O'Connell Decl. ¶ 4.)

On August 6, 2010, a different plaintiff, Azmie Madanat, filed a purported class action against First Data Corporation and First Data Merchant Services in California state court. (Df. Ex. A, Madanat Compl.) Mr. Madanat seeks to represent a class of California residents: 1) "who during any billing where [sic] charged for monthly payments in an amount above the contractual rate for that period," and 2) "who returned their POS Terminal(s) to Defendants prior to their lease expiration and who were charged for lease payments for any period of time after the return of the POS Terminal." (Madanat Compl. ¶¶ 41-43.) The Madanat complaint brings claims under California's Business and Professions Code, Section 17200, and claims under California common law for breach of contract, breach of covenant of good faith and fair dealing, unjust enrichment and declaratory relief. (Id. at ¶¶ 55-78.) The defendants removed the Madanat action to the Northern District of California, and that court subsequently transferred it to the Eastern District of New York because the class representative was subject to a binding forum selection clause. The defendants now move to have this action transferred to the Eastern District of New York.

STANDARD OF REVIEW

"For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district . . . where it might have been brought." 28 U.S.C. § 1404(a). To transfer an action under Section 1404(a), venue must be proper both in the transferor court and the transferee court. Osteotech, Inc. v. GenSci Regeneration Scis., Inc., 6 F. Supp. 2d 349, 357 (D.N.J. 1998). The party seeking to transfer must show that the alternative venue is not only adequate, but also more convenient than the current one. Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995). "[T]he decision to transfer must incorporate all relevant factors to determine whether on balance the litigation would more conveniently proceed and the interests of justice be better served by transfer to a different forum." Rappoport v. Steven Spielberg, Inc., 16 F. Supp. 2d 481, 498 (D.N.J. 1998) (quotation and citations omitted).

A court balances private and public interests when deciding to transfer venue. Jumara, 55 F.3d at 879. Private interests include a plaintiff's choice of forum, a defendant's preference, convenience of the parties as indicated by their physical and financial condition, convenience of witnesses to the extent that they may be unavailable in one forum, and the location of books and records to the extent they could not be produced in alternative fora. Id. The public interests that a court considers include enforceability of a judgment, practical considerations that could make the trial easy, expeditious or inexpensive, relative administrative difficulty in the two fora resulting from court congestion, local interest in deciding a local controversy, public policies of the fora, and familiarity of the district court with applicable state law. Id. at 879-80.

The Third Circuit Court of Appeals has adopted the first-filed rule, which states that "in all cases of federal concurrent jurisdiction, the court which first has possession of the subject must decide it." EEOC v. Univ. of Pennsylvania, 850 F.2d 969, 971 (3d Cir. 1988) (quoting Crosley Corp. v. Hazeltine Corp., 122 F.2d 925, 929 (3d Cir. 1941)). The rule "encourages sound judicial administration and promotes comity among federal courts of equal rank." Id. at 971. Its primary purpose is to "avoid ...


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