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Guiette v. U.S. Bank National Association

United States District Court, D. Minnesota

December 4, 2017

Virginia Guiette, individually and on behalf of all others similarly situated, Plaintiff,
U.S. Bank National Association, Defendant.

          Anthony P. Chester, Esq., Robert L. Hyde, Esq., and Sarah T. McEahern, Esq., Hyde & Swigart, counsel for Plaintiff.

          Bryan C. Keane, Esq., Divya Shenoy Gupta, Esq., and Eric J. Troutman, Esq., Dorsey & Whitney LLP, counsel for Defendant.




         This matter is before the Court on a Motion to Transfer Venue brought by U.S. Bank National Association (“U.S. Bank”). (Doc. No. 16.) For the reasons set forth below, the Court grants the motion.


         This dispute arises from phone calls Plaintiff Virginia Guiette alleges she received from U.S. Bank between August 2015 and April 2017, without consent or after she revoked consent to receive these calls. (Doc. No. 1 (“Compl.”) ¶¶ 11, 18.) Guiette is a citizen and resident of Colorado and resided in Colorado during this time period. (Id. ¶ 7.) She brings this action on behalf of a class of all persons in the United States who similarly received phone calls from U.S. Bank without consent or after revoking consent. (Id. ¶¶ 28-29.) U.S. Bank is a corporation that does business throughout the United States and maintains its principal place of business in Minnesota. (Id. ¶ 6.)

         Plaintiff alleges that between August 2015 and April 2017, Defendant called her on her cell phone via an automatic telephone dialing system (“ATDS”). (Id. ¶ 11.) On multiple occasions, including during two separate calls from Defendant on February 18, 2017, Plaintiff stated over the phone that she no longer wished to be contacted by phone. (Id. ¶ 18.) Defendant used an ATDS to call Plaintiff on or about March 20, 2017. (Id. ¶ 20.) Plaintiff told Defendant's representative that she had previously requested that the calls stop, but the representative indicated that Defendant “does not pay attention to notes like that.” (Id.) Defendant called Plaintiff on her cell phone with an area code of 303, which is the area code for north-central Colorado. (See Doc. No. 18 at 4.)

         Plaintiff alleges that she suffered an invasion of a legally protected privacy interest, she was frustrated and distressed by the calls, and her cell phone battery life was wasted. (Compl. ¶¶ 21-22, 27.) She also alleges that Defendant's conduct harmed her and other class members because the calls incurred charges, reduced available cell phone time that was previously paid for, and invaded the privacy of class members. (Id. ¶ 31.) The common questions of law and fact that Plaintiff alleges with respect to the potential class are whether Defendant used an ATDS to contact class members, whether Defendant obtained prior written consent to contact class members via telephone, whether Defendant's conduct was knowing or willful, whether Defendant's calls caused harm to the class members, and whether Defendant should be enjoined from engaging in this conduct. (Id. ¶ 34.)

         Plaintiff obtained a residential mortgage loan from Peoples Bank in or around February 2015. (Doc No. 21 (“Slepicka Decl.”) ¶ 4.) Plaintiff's mortgage loan was processed at the Peoples Bank location in Englewood, Colorado. (Id.) In approximately April 2015, Peoples Bank transferred the loan to Defendant, and U.S. Bank Home Mortgage began to service the loan. (Id. ¶ 5.) Defendant operates most of its mortgage service-related business in Bowling Green, Kentucky; St. Louis, Missouri; Bedford, Ohio; and Irvine, California. (Doc. No. 20 (“Crosby Decl.”) ¶ 3.) Defendant's call center operations for its residential mortgage portfolio are located in Kentucky, Missouri, Ohio, and Texas, while the data center housing dialer and telephony services is located in Kansas. (Id. ¶ 4.) Defendant conducts a significant amount of mortgage operations in Colorado, with over 200 Colorado-based employees, including two high-level managers. (Slepicka Decl. ¶ 6.)

         Plaintiff alleges two violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. (Compl. ¶ 1.) First, Plaintiff alleges negligent violations of the TCPA and requests $500 in statutory damages for each violation and injunctive relief. (Id. ¶¶ 48-49.) Second, Plaintiff alleges knowing and/or willful violations of the TCPA and requests $1, 500 in statutory damages for each violation and injunctive relief. (Id. ¶¶ 51-52.) Defendant has filed a motion to transfer venue pursuant to 28 U.S.C. § 1404.[1](Doc. No. 16.)


         Defendant asks the Court to transfer this case to the United States District Court, District of Colorado, pursuant to 28 U.S.C. § 1404(a), because it is a more convenient forum in which to resolve the parties' dispute. In particular, Defendant argues that Colorado is the “center of gravity” where Plaintiff received the alleged calls underlying her lawsuit against Defendant. According to Defendant, Minnesota has virtually no connection to the case, and Plaintiff's forum choice is entitled to little deference under the circumstances.

         Plaintiff, on the other hand, contends that the Court should not transfer this case, giving proper deference to Plaintiff's chosen forum. Plaintiff argues that Defendant has not adequately demonstrated hardship or inconvenience in litigating in Minnesota, Defendant's principal place of business. Thus, Plaintiff argues, Defendant has not met its heavy burden to support transfer. The Court considers the relevant factors and the propriety of transfer in light of the parties' arguments, below.

         I. ...

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