United States District Court, D. Colorado
JOHN GERACI, on behalf of himself and all others similarly situated, Plaintiff,
RED ROBIN INTERNATIONAL, INC., Defendant.
RENÉE MARIE BUMB JUDGE.
matter comes before the Court upon motion by Defendant Red
Robin International, Inc. (“Defendant”) seeking a
transfer of venue to the United States District Court for the
District of Colorado, pursuant to 28 U.S.C. § 1404(a).
For the following reasons, Defendant's Motion to Transfer
Venue will be granted.
November 1, 2018, Plaintiff John Geraci
(“Plaintiff”) filed a putative class action in
the United States District Court for District of New Jersey
against Red Robin, alleging that “[Red Robin] sent
unauthorized telemarketing text messages to Plaintiff's
cellular phone in violation of the Telephone Consumer
Protection Act (the ‘TCPA'), 47 U.S.C. §
227(b)(1)(A).” [Complaint, “Compl., ” at
¶ 1]. Plaintiff brings this action pursuant Federal Rule
of Civil Procedure 23 purportedly on behalf of “[a]ll
persons who (1) on or after four years prior to [November 1,
2018] (2) were sent Red Robin Royalty text messages after (3)
texting Defendant ‘Stop' or (4) where Defendant did
not possess prior express written consent.”
Id. at ¶ 36.
February 15, 2019, Defendant filed the instant motion,
requesting that this action be transferred, pursuant to 28
U.S.C. § 1404(a), to the United States District Court
for the District of Colorado.
is a Nevada corporation headquartered in Green Village,
Colorado [Defendant's Memorandum in Support of Transfer,
“Def.'s Memo., ” p. 9] that owns and operates
over 400 casual dining restaurants in 39 states-13 are
located in New Jersey. [Woolen Declaration, at ¶ 13]. In
addition, Defendant operates the Red Robin Royalty
(“Royalty”) Program for its customers that
provides them with offers for discounts and other benefits at
its restaurants. Id. at ¶ 4. Approximately
97.5% of Royalty Program members live outside of New Jersey.
Id. at ¶ 14.
joined the Royalty Program on August 12, 2013 through
Defendant's website, at which time he provided his name,
address, date of birth, and cellular telephone number.
Id. at ¶ 8. A copy of the exact Terms &
Conditions (“Terms”) that the parties allegedly
contracted to, which allegedly contains a clause designating
Colorado as venue for any action against Defendant, has not
yet been produced. Id. at ¶ 9.
25, 2018, Defendant sent Plaintiff a promotion through an
allegedly automated text message that included “Reply
STOP to cancel.” [Compl., at ¶ 24]. Plaintiff
responded “Stop” and received verification that
the text messages would cease. Id. Defendant sent
Plaintiff two more allegedly automated text messages
containing Red Robin promotions in July and October of 2018.
Id. The technology used to communicate with
Plaintiff is stored in Colorado, as well as Defendant's
information systems. [Woolen Declaration, ¶ 12].
a plaintiff has brought his case in a proper venue, a
district court may transfer the case to any other district
where it might have been brought “[f]or the convenience
of parties and witnesses, in the interest of justice.”
28 U.S.C. § 1404(a). Transfer under § 1404(a) is
permissible only if the transferee district has personal
jurisdiction over the defendant. United States v.
Berkowitz, 328 F.2d 358, 361 (3rd Cir. 1964) (citing
Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466-67
burden of establishing the need for transfer … rests
with the movant, ” Jumara v. State Farm Ins.,
55 F.3d 873, 879 (3rd Cir. 1995), and the decision to
transfer is within the sound discretion of the district
court. Huang v. Sonus Networks, Inc., No. 15-2407,
2016 U.S. Dist. LEXIS 36009, at *4-5 (D.N.J. Mar. 21, 2016)
(citing Gendrikrovs-Bayer v. Bellagio Hotel &
Casino, No. 14-6324, 2015 U.S. Dist. LEXIS 64984, at *2
(D.N.J. May 15, 2015)).
Court has previously set out public and private factors to be
considered in weighing whether to transfer venues.
Harrison v. Fed. Bureau of Prisons, No. 17-4296,
2018 U.S. Dist. LEXIS 103646, at *6-7 (D.N.J. June 20, 2018).
The following is the non-exhaustive list:
The public interest factors include: (1) the enforceability
of the judgment; (2) practical considerations that could make
the trial easy, expeditious, or inexpensive; (3) the relative
administrative difficulty in the two fora resulting from
court congestion; (4) the local interest in deciding local
controversies at home; (5) the public policies of the fora;
and (6) the familiarity of the trial judge with the
applicable state law in diversity cases.
Private interest factors include: (1) the plaintiff's
forum preference; (2) the defendant's forum preference;
(3) where the claim arose; (4) the convenience of the parties
as indicated by their relative physical and financial
condition; (5) the convenience of the witnesses, but only to
the extent they may be unavailable for trial in one of the
fora; and (6) the location of books and ...