UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

JAMES WILLIAMS, on 

behalf of himself and all others similarly 

situated, 

 Plaintiff, 

 v. 

E-BACKGROUNDCHECKS.COM, INC. d/b/a 

BACKGROUNDCHECKS.COM 

 Defendant. 

Case No.: 12-cv-00190 

DEFENDANT'S MEMORANDUM OF LAW 

IN SUPPORT OF ITS MOTION TO TRANSFER TO THE NORTHERN 

DISTRICT OF TEXAS PURSUANT TO 28 U.S.C. § 1404(a)

 Defendant e-BackgroundChecks.com, Inc. d/b/a Backgroundchecks.com ("BGC") 

respectfully submits this brief in support of its Motion to Transfer to the United States District 

Court for the Northern District of Texas pursuant to 28 U.S.C. § 1404(a). The Court should 

grant BGC's motion for the following two reasons:1

 First, the Northern District of Texas is far more convenient for the parties and witnesses. 

Nearly all of the testimony in this case will come from BGC employees who live and work 

within the Northern District of Texas. BGC is incorporated in Texas and has its principal place 

of business in the Northern District of Texas. BGC maintains the documents and information at 

issue in this case at its Dallas headquarters. Furthermore, BGC's actions underlying each of 

Plaintiff's claims took place in Northern District of Texas—in other words, BGC manages the 

 

1

 This Court grants § 1404(a) motions to transfer where, as here, it is equitable to do so. See, e.g., 

Mitchell v. First N. Credit Union, No. 07 C 1891, 2007 WL 2948374 (N.D. Ill. Oct. 4, 2007) (Norgle, J.); 

Jurincie v. AG Trucking, Inc., No. 05 C 4585, 2005 WL 2663508 (N.D. Ill. Oct. 14, 2005) (Norgle, J.); 

Portfolio Techs., Inc. v. Church & Dwight Co., No. 04 C 5141, 2004 WL 2931286 (N.D. Ill. Dec. 9, 

2004) (Norgle, J.); Tong v. Direct Trading Corp., No. 02 C 8331, 2003 WL 22282466 (N.D. Ill. Oct. 1, 

2003) (Norgle, J.). 

US2008 3246295.4 

Case: 1:12-cv-00190 Document #: 24 Filed: 03/16/12 Page 1 of 16 PageID #:77
processes for all its consumer reports in Dallas and Plaintiff was applying for a job in Texas. 

(See Compl. ¶ 11). Additionally, because Plaintiff brings this case as a putative nationwide class 

action, a representative plaintiff could have brought this case anywhere in the country. The only 

connection between the class claims and Illinois seems to be that Plaintiff's attorneys are from 

Illinois and found an appropriate Illinois plaintiff. 

 Second, litigating this case in the Northern District of Texas would serve the interests of 

justice. This case turns on questions of federal law—the Fair Credit Reporting Act ("FCRA")—

which a court in the Northern District of Texas is presumptively able to apply as competently as 

this Court. Furthermore, the Northern District of Texas has a considerably less crowded docket 

and shorter median time from filing to trial. See Fed. R. Civ. P. 1 (noting that the Rules should 

be "construed and administered to secure the just, speedy, and inexpensive determination of 

every action and proceeding"). BGC's location within the Northern District of Texas would also 

facilitate the discovery process and allow for an expeditious trial because of the close proximity 

of nearly all germane witnesses and evidence. Recognizing these reasonable considerations, 

courts in this district have transferred putative class actions arising under the FCRA to the 

defendant consumer reporting agency's home district on multiple occasions.2

 Likewise, this case 

presents a situation where transfer to the Northern District of Texas would result in more 

efficient litigation without prejudicing Plaintiff. 

FACTUAL BACKGROUND

 Defendant BGC is a Texas-based background check company with no offices or staff in 

Illinois. (See Declaration of Craig Kessler ("Kessler Decl.") ¶¶ 4, 12-13,24). According to the 

Complaint, Plaintiff resides in Illinois and applied for a job in Texas. (See Compl. ¶¶ 7, 11). 

 

2 See, e.g., Kapeluck v. Experian Info. Solutions, No. 03 C 3777, 2003 WL 23509647 (N.D. Ill. Dec. 18, 

2003) (transferring to defendant credit reporting agency's resident district); Barela v. Experian Info. 

Solutions, Inc., No. 04 C 5144, 2005 WL 770629 (N.D. Ill. Apr. 4, 2005) (same). 

- 2 - 

Case: 1:12-cv-00190 Document #: 24 Filed: 03/16/12 Page 2 of 16 PageID #:78
Plaintiff alleges that he did not get the job in Texas because of BGC's inaccurate background 

check. (See Compl. ¶¶ 11-19). Specifically, Plaintiff alleges that as a result of erroneous 

information contained in a background check that BGC prepared, Plaintiff lost a job opportunity 

with Goodwill Industries of East Texas, Inc. (See id.). 

 Plaintiff asserts both individual and class claims, seeking individual damages, and 

statutory and punitive damages for the class, as well as costs and attorney's fees. (See Compl. 

Request For Relief). Specifically, Plaintiff seeks to bring claims on behalf of any consumer on 

whom BGC issued a consumer report containing public records in the past two years where BGC 

allegedly failed to provide notice to the consumer when issuing the report. (See Compl. ¶ 21). 

The class claims allege that BGC violated the FCRA by failing to follow reasonable procedures 

to ensure the accuracy of information in background reports and failed to notify consumers when 

furnishing background reports to employers. (See Compl. ¶¶ 35-36). 

ARGUMENT

I. The Legal Standard Under Section 1404(a). 

 A district court may transfer a pending civil action to any other federal district "where it 

might have been brought" if the proposed transfer is "[f]or the convenience of [the] parties and 

witnesses" and "in the interest of justice." 28 U.S.C. § 1404(a) (2006); see Christopher v. Am. 

News. Co., 176 F.2d 11, 12 (7th Cir. 1949). As the movant, BGC bears the burden of proving 

the desirability of a § 1404(a) transfer, Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219-20 

(7th Cir. 1986), which rests in the trial court's sound discretion. See Van Dusen v. Barrack, 376 

U.S. 612, 622 (1964) (noting that 1404(a) requires "individualized, case-by-case consideration of 

convenience and fairness"); Christopher, 176 F.2d at 12. 

 The § 1404(a) inquiry has three steps. A district court may transfer a case pursuant to 

1404(a) where: (1) venue is proper in both the transferee and transferor districts; (2) "transfer is 

- 3 - 

Case: 1:12-cv-00190 Document #: 24 Filed: 03/16/12 Page 3 of 16 PageID #:79
for the convenience of the parties and witnesses;" and (3) transfer serves "the interest[s] of 

justice." Georgouses v. Natec Res., Inc., 963 F. Supp. 728, 730 (N.D. Ill. 1997). Here, all three 

factors are met. 

II. Venue Lies in the Northern District of Texas. 

 Venue is proper in both the original district (N.D. Ill.) and proposed district (N.D. Tex.). 

Plaintiff commenced this action in the Northern District of Illinois and BGC does not dispute 

that venue is proper in this District. Thus, the relevant question under § 1404(a) is whether 

venue also lies in the Northern District of Texas, which depends on whether "the defendant is 

amenable to process in the other jurisdiction." Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255 

(1981) (internal quotation marks omitted). 

 BGC is amenable to process in the Northern District of Texas. Venue can be laid in any 

district where the defendant resides, which for a corporation is any district where it is subject to 

personal jurisdiction. 28 U.S.C. § 1391 (2006). For a corporation, personal jurisdiction can be 

laid either in the state in which it is incorporated or the state where it has its principal place of 

business. 28 U.S.C. § 1332(c)(1) (2006). BGC is incorporated in Texas, and thus subject to 

personal jurisdiction in Texas. 28 U.S.C. § 1332(c)(1) (2006). (See Kessler Decl. ¶ 4). 

Likewise, BGC's principal place of business and nerve center is in Dallas, Texas. (See generally 

Kessler Decl. ¶¶ 9, 11-15); see Hertz Corp. v. Friend, 130 S. Ct. 1181, 1186 (2010) (holding that 

a corporation is subject to personal jurisdiction where it has its "nerve center"). Because BGC is 

incorporated and has its nerve center in Texas, it is subject to personal jurisdiction and venue is 

proper in the Northern District of Texas. 

- 4 - 

Case: 1:12-cv-00190 Document #: 24 Filed: 03/16/12 Page 4 of 16 PageID #:80
III. Convenience of Parties and Witnesses and the Interests of Justice Favor Transfer. 

A. The Convenience of Parties and Witnesses Favors Transfer. 

 The second requirement for transfer is that transfer be convenient for the parties and 

witnesses. Andrade v. Chase Home Fin., LLC, No. 04 C 8229, 2005 WL 3436400, at *2 (N.D. 

Ill. Dec. 12, 2005). Various "private factors" and "public factors" comprise this inquiry: (1) the 

situs of the claim; (2) relative ease of access to sources of proof; (3) the costs of obtaining 

attendance of witnesses; (4) the plaintiff's forum preference; (5) the court's familiarity with the 

applicable law and (6) the desirability of resolving controversies where they arose. See Mitchell, 

2007 WL 2948374, at *2 (Norgle, J.); Medi USA, L.P. v. Jobst Inst., Inc., 791 F. Supp. 208, 210 

(N.D. Ill. 1992) (Norgle, J.). Here, these factors weigh in favor of transfer. 

1. The Situs of the Individual and Class Claims is Texas. 

Texas is where Plaintiff's individual claim arose: BGC prepared his background report in 

Texas, and Plaintiff allegedly lost a job opportunity as a result in Texas. (Compl. ¶¶ 11-17). 

Plaintiff has alleged no facts, other than his mere residence, that connect this case to the Northern 

District of Illinois. See Tong, 2003 WL 22282466, at *5 (Norgle, J.) ("[T]his Court's 

relationship to [Defendant's] claims arise only because she resides here. The vast majority of 

the conduct giving rise to [Defendant's] claims, as well as the witnesses and sources of proof and 

other evidence, bear relationship to the Northern District of Texas." (emphasis added)).

 Texas is also where the class FCRA claims arose. The class claims concern the 

production of consumer reports in Dallas, the actions of employees located in Dallas, and alleged 

non-actions that would have occurred in Dallas. There are no such connections to Illinois. 

 Furthermore, in an FCRA class action the situs of material facts is the defendant's home 

district because the primary issue is whether the defendant acted willfully and the actions 

underlying that question all occur at the defendant's office. See Klutho v. 21st Century Ins. Co., 

- 5 - 

Case: 1:12-cv-00190 Document #: 24 Filed: 03/16/12 Page 5 of 16 PageID #:81
No. 07 C 4111, 2007 WL 4224296, at *2 (N.D. Ill. Nov. 26, 2007) (holding in FCRA class 

action that defendant's home district is the situs even for "purposes of damages with respect to 

the putative Illinois class members").3

 Because the events underlying Plaintiff's Complaint occurred in Texas, the first factor 

weighs in favor of transfer to the Northern District of Texas. 

2. Access to Sources of Proof is Easier in the Northern District of Texas. 

 The "relative ease of access to sources of proof" in the Northern District of Texas favors 

transfer. Mitchell, 2007 WL 2948374, at *4 (Norgle, J.). Access to evidence applies both to 

gathering information in discovery as well as making evidence available for trial. See Klutho, 

2007 WL 4224296, at *3. 

 BGC's headquarters in Dallas, Texas houses nearly all of the information and witnesses 

relevant to this case. BGC maintains documents related to the production of consumer reports in 

Dallas. (Kessler Decl. ¶¶ 15-16). BGC houses the information from which BGC generates 

consumer reports on servers in Dallas.4 (Kessler Decl. ¶¶ 18-21). Additionally, all of BGC's 

employees who had contact with Plaintiff's potential employer, as well as those of other class 

members, are located in Dallas. (Kessler Decl. ¶¶ 10, 13-14, 17). The majority of discovery 

would therefore take place in Texas, and the district court in Texas would be better able to 

 

3

 Similarly, courts of other districts have repeatedly concluded that in an FCRA class action, the 

defendant's location is the appropriate venue. See, e.g., Klingensmith v. Paradise Shops, Inc., No. 07-

322, 2007 WL 2071677, at *2-3 (E.D. Pa. July 17, 2007) (transferring to credit reporting agency's home 

state and noting that an FCRA class action focuses on the conduct of the defendant); Smith v. HireRight 

Solutions, Inc., No. 09-6007, 2010 WL 2270541, at *4 (E.D. Pa. June 7, 2010) (finding that the 

defendant's home state is the appropriate venue for FCRA class claims). HireRight, although not from 

this district, concerned remarkably similar facts and is informative as to the proper venue for FCRA class 

actions. There, plaintiff brought a putative class action against a credit reporting agency for alleged 

violations of the FCRA. 2010 WL 2270541, at *4. The court recognized that the class complaint had only 

a tenuous link to Pennsylvania (the plaintiff's home state) and, based on the balance of factors, transferred 

the action to the corporate defendant's home state, the locus of the common class claims. Id.

4

 BGC maintains redundant servers in Dallas, Texas and Chapin, South Carolina. (See Kessler Decl. ¶ 

18). It does not house any data in Illinois. (See id. ¶ 24).

- 6 - 

Case: 1:12-cv-00190 Document #: 24 Filed: 03/16/12 Page 6 of 16 PageID #:82
oversee discovery and conduct the proceedings, including compelling the appearance of 

unwilling witnesses. See Tong, 2003 WL 22282466, at *5 (Norgle, J.) (finding that ease of 

discovery and the court’s ability to compel witnesses warranted transfer to the Northern District 

of Texas). 

 By way of example, BGC's Dallas headquarters houses the following key documents: 

• Documents relating to the consumer report regarding the Plaintiff (Kessler Decl. ¶ 10); 

• Documents and information reflecting BGC’s procedures to ensure maximum possible 

accuracy of reports because those procedures were developed and implemented in Dallas 

(Kessler Decl. ¶ 11, 15); 

• Documents reflecting how a BGC customer orders a consumer report and the information 

required during the ordering process (Kessler Decl. ¶ 15-16). 

 Additionally, BGC believes that non-party Express Employment Professionals, a staffing 

agency located in Tyler, Texas, and non-party Goodwill of East Texas, to which Plaintiff applied 

for a job, may have evidence relevant to Plaintiff's claims. The fact that non-party evidence and 

potential witnesses are also located within Texas lends further support to transferring this action 

to the Northern District of Texas. The convenience of non-party witnesses is of paramount

concern in deciding motions to transfer. See Klutho, 2007 WL 4224296, at *3. Tyler, Texas, is 

approximately 95 miles from Dallas; it is approximately 910 miles from Chicago. See

http://maps.google.com (last visited March 15, 2012) 

 As this Court has concluded on numerous occasions, key evidence's location in another 

state weighs strongly in favor of transfer. See, e.g., Marvel Group, Inc. v. Modular Interiors, No. 

01 C 6577, 2002 WL 1052043, at *2 (N.D. Ill. 2002) (Norgle, J.) (transferring to Texas, the 

location of documents, records, and witnesses, and noting that forcing witnesses to travel from 

- 7 - 

Case: 1:12-cv-00190 Document #: 24 Filed: 03/16/12 Page 7 of 16 PageID #:83
Texas to Illinois for trial would "impose [an] undue hardship"); Mitchell, 2007 WL 2948374, at 

*3 (Norgle, J.) (transferring to Arizona, the location of relevant documents); Tong, 2003 WL 

22282466, at *5 (Norgle, J.) (transferring to Texas, the location of documents and witnesses); 

Jurincie, 2005 WL 2663508, at *3 (Norgle, J.) (transferring to Indiana, the location of documents 

and witnesses, when only one plaintiff lived in Illinois). Like the foregoing cases, the 

concentration of documents, records, and witnesses in Texas warrants transfer in this case. 

3. Costs of Obtaining Attendance of Witnesses are Lower in the 

Northern District of Texas. 

 Transferring this case to the Northern District of Texas will result in lower litigation costs 

and less inconvenience because BGC does all of its consumer reporting work in Dallas, Texas. 

The witnesses and voluminous information associated with BGC's consumer reporting processes 

all lay within the Northern District of Texas. It will impose significant costs and expense on 

BGC to make those sources of proof available in this District, whereas Plaintiff will suffer 

minimal inconvenience if the Court transfers the case to Texas. See Mitchell, 2007 WL 

2948374, at *3 (Norgle, J.) (finding that transfer will necessarily inconvenience one party but 

that it is appropriate where it on balance results in less inconvenience). 

Mitchell is instructive on this question. There, defendant moved to transfer to Arizona, 

its home state. Id. In granting the defendant's motion to transfer, this Court noted that the 

defendant's headquarters was in Arizona, which was also where its employees lived and where it 

kept records. Id. at *4. Importantly, this Court noted that litigating in the defendant's home 

district would require witnesses to travel "approximately 9 miles" from work to the courthouse. 

Id. (citing http://www.mapquest.com). The Northern District of Texas is equally convenient 

here: the courthouse is only 10.5 miles from BGC's office. See http://maps.google.com (last 

visited March 15, 2012). 

- 8 - 

Case: 1:12-cv-00190 Document #: 24 Filed: 03/16/12 Page 8 of 16 PageID #:84
 Here, just as this Court concluded in Mitchell, trial in the Northern District of Illinois 

would subject Defendant's witnesses to "the inconvenience of constant travel to and from their 

home state, to a foreign jurisdiction." 2007 WL 2948374, at *4. The burdens of travel 

distance—and the attendant disruption of home and work life—are significant here: Dallas is 

more than 950 miles from Chicago. See In re Volkswagen AG, 371 F.3d 201, 204-05 (5th Cir. 

2004) ("[W]hen the distance between an existing venue for trial of a matter and a proposed 

venue under § 1404(a) is more than 100 miles, the factor of inconvenience to witnesses increases 

in direct relationship to the additional distance to be traveled."); Marvel Group, Inc., 2002 WL 

1052043, at * 2 (Norgle, J.) (noting that forcing witnesses to travel from Texas to Illinois for trial 

would "impose an undue hardship"). 

 Here, BGC witnesses with knowledge pertinent to Plaintiff's claims who reside within the 

Northern District of Texas include the following individuals: 

• Craig Kessler, BGC's President, who has relevant information regarding BGC’s 

operations and production of consumer reports and can testify as to BGC's matching 

logic; 

• Employees in BGC's sales department; 

• Employees in BGC's client relations department; and 

• Employees in BGC's data acquisition department. 

 On the other hand, only a single witness (i.e., Plaintiff) resides in this District. The cost 

of Plaintiff travelling perhaps once to Texas to testify at trial will be dramatically less than the 

costs BGC would bear in making its witnesses and evidence available in this District. See

Portfolio Techs., Inc., 2004 WL 2931286, at *3 (Norgle, J.) (observing that when transferring 

- 9 - 

Case: 1:12-cv-00190 Document #: 24 Filed: 03/16/12 Page 9 of 16 PageID #:85
"one party will necessarily be somewhat inconvenienced" by travel, and comparing the relative 

burdens). As such, this third factor weighs in favor of transfer. 

4. Plaintiff's Choice of Venue is Entitled to Minimal Deference. 

 Here, Plaintiff's choice of forum is entitled to minimal deference for two reasons: first, 

because he filed on behalf of a nationwide class and second, because the facts underlying the 

individual and class claims arose in Texas. 

 Plaintiff's choice of forum is entitled to minimal deference because it is a putative 

nationwide class action. Although courts give some deference to the plaintiff's choice of forum, 

"[a] plaintiff's choice of forum is usually not the determinative factor," Mitchell, 2007 WL 

2948374, at *3 (Norgle, J.), and the Supreme Court has held that the plaintiff's choice of forum is 

not entitled to such deference where the case is brought as a representative nationwide class 

action. See Koster v. (Am.) Lumbermens Mut. Cas. Co., 330 U.S. 518, 524 (1947) ("[W]here 

there are hundreds of potential plaintiffs, . . . all of whom could with equal show of right go into 

their many home courts, the claim of any one plaintiff that a forum is appropriate merely

because it is his home forum is considerably weakened." (emphasis added)). 

 Courts in the Seventh Circuit have similarly held that "[w]hen a nationwide class is 

alleged, less deference should be given to the plaintiff's choice of forum because any member of 

the class who subsequently chooses to appear might be faced with similar inconveniences, 

depending on where the action proceeds." Andrade, 2005 WL 3436400, at *5 ("[B]ecause 

Plaintiffs purport to bring a nationwide class action, and there is no basis to conclude that other 

putative class members would find it convenient for the action to proceed in the Northern 

District of Illinois, this further militates against affording significant weight to the present choice 

of forum." (quotation marks omitted)); Morris v. Am. Bioscience, Inc., No. 03 C 7525, 2004 WL 

2496496, at *2 (N.D. Ill. Nov. 3, 2004) (collecting cases); Georgeouses, 693 F. Supp. at 730 

- 10 - 

Case: 1:12-cv-00190 Document #: 24 Filed: 03/16/12 Page 10 of 16 PageID #:86
(collecting cases and holding that for putative class actions, "plaintiff's home forum is irrelevant" 

(emphasis added)); Eugene v. McDonald's Corp., No. 96 C 1469, 1996 WL 411444, at *3 (N.D. 

Ill. July 18, 1996) (stating that "the plaintiff purports to bring a nationwide class action, and thus 

we do not accord weight to his choice of forum because other members of the putative class 

might be inconvenienced by the selection" and collecting cases to that effect). 

 Plaintiff's choice of forum is also entitled to minimal deference because the class claims 

are unconnected to Illinois. Although Plaintiff filed in his home state, all of the operative facts 

common to the proposed class originated in Texas. Importantly, even Plaintiff's alleged 

individual injury occurred in Texas, where he applied for a job with Goodwill Industries of East 

Texas. (Compl. ¶ 11). Seventh Circuit courts have held that "the weight granted to the plaintiff's 

choice of forum is significantly diminished where the events giving rise to the cause of action 

took place outside the plaintiff's choice of forum." Commercial Union. Ins. Co. v. Auto Europe, 

L.L.C., No. 01 C 6961, 2002 WL 47026, at *2 (N.D. Ill. Jan. 10, 2002) (emphasis added); 

Marvel Group, 2002 WL 1052043, at *2 (Norgle, J.) ("Where the chosen forum is not the situs of 

material events, the chosen forum is entitled to less deference.") 

In short, Plaintiff's choice of forum deserves little weight because the underlying events 

took place in Texas, the evidence and witnesses are in Texas, and both binding and persuasive 

authority indicates that Plaintiff's putative nationwide class action is entitled to minimal 

deference. Under similar circumstances, the Supreme Court has held that the defendant's 

location, and the "books, records and witnesses" that exist at the defendant's home office, are 

entitled to greater weight. Koster, 330 U.S. at 526. Consequently, the fourth factor favors 

transfer to the Northern District of Texas. 

- 11 - 

Case: 1:12-cv-00190 Document #: 24 Filed: 03/16/12 Page 11 of 16 PageID #:87
5. Familiarity with Applicable Law is a Neutral Factor. 

Considerations about each forum's familiarity with the relevant law weigh neither for nor 

against transfer because this dispute does not involve state law where one forum has greater 

familiarity. See Van Dusen v. Barrack, 376 U.S. 612, 645 (1964) This case requires application 

of a federal law, the FCRA, in which both this Court and a transferee federal district court judge 

in the Northern District have expertise. Cf. Mitchell, 2007 WL 2948374, at *4 (Norgle, J.) 

(finding that a patent case, raising only questions of federal law, could be transferred because 

"both federal district courts are capable to adjudicate this case"); see 17 James Wm. Moore, 

Moore's Federal Practice, § 111.13[1][m] (3d. ed. 2011) ("[I]f the action does not involve 

complex questions of another state's law, this factor will be given little weight in the analysis."). 

The fifth factor is therefore neutral. 

6. It is Desirable to Resolve this Controversy in Texas.

 This controversy should be resolved in Texas, where it arose. Plaintiff applied for a job 

in Texas and suffered harm because of alleged actions by a Texas corporation that occurred in 

Texas. See Marvel Group, 2002 WL 1052043, at *3 (Norgle, J.) (transferring a case to Texas 

after finding that public interest favors transfer to the district where the operative facts 

underlying the dispute arose). As such, this dispute should be resolved in Texas, which has 

significantly more ties to the underlying events than Illinois. The sixth factor therefore weighs in 

favor of transfer. 

B. The Interests of Justice Favor Transfer. 

 The third and final part of the § 1404(a) inquiry is whether transfer would further the 

"interests of justice," which pertains to the "'efficient administration of the court system,'" and is 

a distinct and separate component of the inquiry. Mitchell, 2007 WL 2948374, at *4 (Norgle, J.) 

(quoting Coffey, 796 F.2d at 220-21). This factor analyzes: (1) the speed at which the case will 

- 12 - 

Case: 1:12-cv-00190 Document #: 24 Filed: 03/16/12 Page 12 of 16 PageID #:88
proceed to trial, (2) the court's familiarity with applicable law, and (3) local interests in having 

the case adjudicated at home. Here, the interests of justice favor transfer. 

1. Relative Levels of Court Congestion Weigh in Favor of Transfer. 

 Concerns about court congestion and administrative efficiency favor transfer to the 

Northern District of Texas. As of September 30, 2011, the median time from filing to trial in 

civil cases was 28.4 months in the Northern District of Illinois as opposed to 20.2 months in the 

Northern District of Texas. (U.S. District Court – Judicial Caseload Profiles, attached hereto as 

Exhibit A); see Mitchell, 2007 WL 2948374, at *4 (Norgle, J.) (transferring a case to Arizona 

because, among other things, "this case would proceed to trial much faster" if transferred). 

Likewise, more than 10,000 civil cases are pending in the Northern District of Illinois, more than 

double the number pending in the Northern District of Texas (4,879). (U.S. District Court – 

Judicial Caseload Profiles, Ex. A); see Jurincie, 2005 WL 2663508, at *4 (Norgle, J.) 

(transferring case to Indiana upon showing that Northern District of Indiana had fewer pending 

cases and concluding that "transferring the case to Indiana would necessarily result in a speedier 

resolution of the matter"). Furthermore, in the Northern District of Illinois, 12.7% of all civil 

cases on the docket are more than three years old, whereas in the Northern District of Texas, that 

figure is only 1.5%. (U.S. District Court – Judicial Caseload Profiles, Ex. A). 

 Trial would also be faster in Texas because of convenience and proximity. If this case is 

tried in the Northern District of Illinois, all of the Texas witnesses would need to fly in from out 

of state, and the evidence and records located at BGC's home office in Dallas, Texas, would have 

to be transported to Chicago. See Mitchell, 2007 WL 2948374, at *4 (Norgle, J.) (finding that 

identical concerns about transporting witnesses and documentation from Arizona to Chicago 

favored transfer). Trial in Dallas would require transporting witnesses and documents across 

town. 

- 13 - 

Case: 1:12-cv-00190 Document #: 24 Filed: 03/16/12 Page 13 of 16 PageID #:89
 Conversely, the Northern District of Illinois would have "significant difficulty issuing 

subpoenas to unwilling non-party witnesses" located in Texas. Id. (noting that "'witnesses are 

subject to the usual 100-mile limitation'" for issuance of subpoenas). Rule 45 also allows service 

of a subpoena "within the state of the issuing court if" a state statute or rule would allow courts 

of that state to serve the subpoena there. Fed. R. Civ. P. 45(b)(2)(C). In Texas, both statute and 

court rules provide that a subpoena may be served within a 150-mile area. See Tex. Civ. Prac. & 

Rem. Code Ann. § 22.002 ("A witness who is represented to reside 150 miles or less from a 

county in which a suit is pending . . . may be subpoenaed in the suit."); Tex. R. Civ. P. 176.3 ("A 

person may not be required by subpoena to appear . . . in a county that is more than 150 miles 

from where the person resides or is served."). 

 As noted above, BGC has identified two non-parties with relevant information: Express 

Employment Professionals and Goodwill Industries of East Texas. Express Employment 

Professionals is located in Tyler, Texas, and is approximately 102 miles from the courthouse in 

Dallas; Goodwill Industries of East Texas has its head office in Tyler as well, and is 

approximately 97 miles from the courthouse. See http://maps.google.com (last visited March 15, 

2012). Both are within the 150 mile area allowed by Texas law and, therefore, Rule 45. 

Transfer would thus provide the court with a basis for subpoena power that would include both 

of the relevant non-parties, significantly easing the burdens of compelling evidence and 

testimony at trial. 

2. Familiarity with Local Law is Neutral. 

 As discussed above, because this case concerns the application of federal law, this factor 

is neutral. 

- 14 - 

Case: 1:12-cv-00190 Document #: 24 Filed: 03/16/12 Page 14 of 16 PageID #:90
3. Local Interests Favor Resolving this Dispute in Texas. 

 The relative local interests of each forum in adjudicating the controversy favor transfer. 

This case involves a named Plaintiff allegedly injured in Texas by a Texas company. Resolution 

of this case turns on the testimony of witnesses living in Texas, and the Texas company's 

operating procedures, documents, and files. See Mitchell, 2007 WL 2948374, at *4 (Norgle, J.) 

(granting transfer to Arizona and finding that "[Corporate Defendant] is an Arizona citizen, and 

has an interest in a court in its own state deciding liability and damages"). As such, this factor 

weighs in favor of granting defendant's motion to transfer. 

CONCLUSION

 Both the convenience of parties and witnesses as well as the interests of justice favor 

transfer to the Northern District of Texas. Accordingly, the Court should grant BGC's motion 

and transfer this case to the Northern District of Texas pursuant to 28 U.S.C. § 1404(a). 

Respectfully submitted this 16th day of March, 2012. 

/s/ Nabil G. Foster 

Nabil G. Foster (Atty. No. 6273877) 

HINSHAW & CULBERTSON LLP 

222 N. LaSalle Street, Suite 300 

Chicago, Illinois 60601-1081 

(312) 704-3000 

(312) 704-3001 (facsimile) 

nfoster@hinshawlaw.com

Cindy D. Hanson 

KILPATRICK TOWNSEND & 

STOCKTON LLP 

1100 Peachtree Street, Suite 2800 

Atlanta, Georgia 30309 

Telephone: (404) 815-6500 

Facsimile: (404) 541-3240 

COUNSEL FOR DEFENDANT BGC

- 15 - 

Case: 1:12-cv-00190 Document #: 24 Filed: 03/16/12 Page 15 of 16 PageID #:91
- 16 - 

CERTIFICATE OF SERVICE

 I hereby certify that on March 16th, 2012, I electronically filed the foregoing 

DEFENDANT'S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO 

TRANSFER TO THE NORTHERN DISTRICT OF TEXAS PURSUANT TO 28 U.S.C. § 

1404(a) with the Clerk of Court using the CM/ECF system which will automatically send email 

notification of such filing to all attorneys of record:

Keith J. Keogh 

Craig M. Shapiro 

Timothy J. Sostrin 

KEOGH LAW, LTD. 

101 N. Wacker Drive, Suite 605 

Chicago, IL 60606

 /s/ Nabil G. Foster 

Nabil G. Foster (Atty. No. 6273877) 

HINSHAW & CULBERTSON LLP 

222 N. LaSalle Street, Suite 300 

Chicago, Illinois 60601-1081 

(312) 704-3000 

(312) 704-3001 (facsimile) 

nfoster@hinshawlaw.com 

Cindy D. Hanson 

KILPATRICK TOWNSEND & STOCKTON LLP 

1100 Peachtree Street, Suite 2800 

Atlanta, Georgia 30309 

(404) 815-6500 

(404) 541-3240 

Case: 1:12-cv-00190 Document #: 24 Filed: 03/16/12 Page 16 of 16 PageID #:92