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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

LORI BERNARD WILPRIT, 

 Plaintiff,

v.

CAPITAL ONE BANK USA, N.A. and

CAPITAL ONE BANK, N.A.,

Defendants.

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Case No. 3:22-cv-00452-K 

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Before the Court is Defendants Capital One Bank USA, National 

Association and Capital One Bank, National Association’s Motion to 

Transfer Venue (ECF No. 34). For the following reasons, the District Court 

should GRANT Defendants’ motion and transfer this case, including the 

pending Motion to Dismiss, to the Eastern District of Virginia, Alexandria 

Division, pursuant to 28 U.S.C. § 1404(a). 

Background

In her Amended Complaint, which is the live pleading in this civil 

action, Plaintiff Lori Bernard Wilprit alleges that she filed a Chapter 13 

bankruptcy petition on June 10, 2019, see In re: Lori Bernard Wilprit, 3:19-

BK-31952, and she listed a Capital One credit card as a nonpriority 

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unsecured claim on her original Schedule E/F.1 First Am. Compl. ¶ 14 (ECF 

No. 13). Plaintiff sent Defendants notice of the automatic stay imposed by 

the bankruptcy proceedings. Id. ¶ 16 (citing 11 U.S.C. § 362). Sixteen months 

later, the Bankruptcy Court granted Wilprit a discharge, which—among 

other things—discharged Wilprit from liability for the Capital One credit 

card debt. Id. ¶ 19. The Discharge Order prohibited creditors from collecting 

discharged debts or contacting Wilprit in any attempt to collect discharged 

debts. Id.

Wilprit contends that—despite the automatic bankruptcy stay and the 

Discharge Order, Defendants repeatedly attempted to collect the Capital 

One credit card debt from her through a “relentless email campaign.” Id. ¶¶ 

28-29, 31. She alleges that, during bankruptcy and after discharge, 

Defendants sent her various emails “requesting contact and urging [her], 

inter alia, to log into her credit card Account online, provide updated 

information about herself, allow Capital One to send her information related 

to the Account, to verify her email address so they could let her know when 

her monthly billing statements were available, and apply for new credit with 

Capital One.” Id. ¶ 34. Additionally, Wilprit alleges that Defendants

“performed illegal account reviews with [a credit reporting agency] and 

1 The Bankruptcy Court later converted Wilprit’s Chapter 13 case to a 

Chapter 7 case, and Wilprit again listed the Capital One credit card as a 

nonpriority unsecured claim on her Chapter 7 Conversion Schedule E/F. 

First Am. Compl. ¶ 17.

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intentionally accessed [Wilprit’s] consumer reports” from two credit 

reporting agencies. Id. ¶¶ 30, 157-94.

Based on these allegations, Wilprit filed this lawsuit asserting claims 

against Defendants for (1) violations of the Texas Debt Collection Act 

(TDCA), including Tex. Fin. Code §§ 392.301(a)(8), 392.304(a)(19); (2) 

invasion of privacy; (3) violations of the Fair Credit Reporting Act (FCRA),

including 15 U.S.C. § 1681; and (4) violations of the automatic stay imposed 

by the Bankruptcy Court, 11 U.S.C. § 362. Id. ¶ 5. She alleges Defendants’

conduct “caused and will cause [her] past and future severe mental distress 

and emotional anguish, which caused [her] fear, worry, anxiety and other 

discernable injuries to [her] emotional state, producing symptoms of stress, 

anxiety, upset stomach, headaches, insomnia, and other damages . . . .” Id. ¶ 

253.

In response to Wilprit’s Amended Complaint, Defendants filed a 

Motion to Dismiss (ECF No. 18) for failure to state a claim under Federal 

Rule of Civil Procedure 12(b)(6) and, for Wilprit’s FCRA claim, failure to 

plausibly allege Article III standing. Defendants also filed the pending

Motion to Transfer Venue (ECF No. 34), asking the Court to transfer this 

case to the Eastern District of Virginia, Alexandria Division, pursuant to 28 

U.S.C. § 1404(a) because Wilprit previously agreed to bring actions related 

to Defendants’ services only in that district. More specifically, Defendants 

contend that Wilprit enrolled in Capital One’s credit monitoring system, 

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known as “CreditWise,” in June 2017, and in doing so, she agreed to the 

service’s terms and conditions which include a mandatory forum-selection 

clause. See Mot. 1 (ECF No. 34). In support of their motion, Defendants 

submitted the sworn declaration of Amshuman Ramachandran, a Capital 

One Senior Business Manager. The declaration states that Wilprit enrolled 

in the CreditWise program on June 3, 2017, and accepted the CreditWise 

terms and conditions, which contained the following provision:

Governing Law; Jurisdiction and Venue:

These terms shall be governed by and construed in accordance 

with the law of the Commonwealth of Virginia without regard 

to any portion of its choice of law principles that might provide 

for application of a different jurisdiction’s law; . . . . You 

irrevocably and unconditionally submit to the jurisdiction and 

venue of the United States District Courts for the Eastern 

District of Virginia, or if such court does not have subject matter 

jurisdiction, to the courts of the Commonwealth of Virginia 

located in Henrico County.

App., Decl. ¶ 19 (ECF No. 35).

Wilprit filed a Response (ECF No. 47) disputing that she agreed to any 

mandatory forum-selection clause. Defendants filed a reply (ECF No. 50), 

and the Motion is ripe and ready for determination.

Legal Standard

“For 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.” 28 U.S.C. § 1404(a). Section 1404(a) 

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requires the court to first evaluate whether the suit could have been brought 

in the district or division to which the moving party proposes transferring it. 

Transparent Energy LLC v. Premiere Mktg. LLC, 2020 WL 4678438, at *2 

(N.D. Tex. July 28, 2020) (Rutherford, J.) (citing In re Horseshoe Ent., 337 

F.3d 429, 433 (5th Cir. 2003) (per curiam)). Venue is proper in a judicial 

district in which any defendant resides if all defendants are residents of the 

same state. 28 U.S.C. § 1391(b)(1).

If the case could properly have been brought in the proposed forum, 

then the court must consider certain private and public interest factors to 

determine whether, on balance, transferring the case would best serve the 

interests of justice and be more convenient for the parties and witnesses. In 

re Volkswagen of Am., Inc., 545 F.3d 304, 315 (5th Cir. 2008) (en banc). 

The private interest factors include: “(1) the relative ease of access to sources 

of proof; (2) the availability of compulsory process to secure the attendance 

of witnesses; (3) the cost of attendance for willing witnesses; and (4) all other 

practical problems that make trial of a case easy, expeditious and 

inexpensive.” Id. (quoting In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 

2004) (per curiam)). The public interest factors are: “(1) the administrative 

difficulties flowing from court congestion; (2) the local interest in having 

localized interests decided at home; (3) the familiarity of the forum with the 

law that will govern the case; and (4) the avoidance of unnecessary problems 

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of conflict of laws [or in] the application of foreign law.” Id. (quoting In re 

Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004) (per curiam)).

As the court balances these factors, “[t]he moving parties bear the 

burden of proving by a preponderance of the evidence that transfer is 

appropriate.” Id. (quoting Bank One, N.A. v. Euro-Alamo Invs., Inc., 211 F. 

Supp. 2d 808, 812 (N.D. Tex. Jan. 8, 2002) (Fitzwater, J.)). “A motion to 

transfer venue pursuant to § 1404(a) should be granted if the movant 

demonstrates that the transferee venue is clearly more convenient[.]” In re 

Radmax, Ltd., 720 F.3d 285, 288 (5th Cir. 2013) (internal quotation marks 

and citation omitted).

In disputes involving a mandatory forum-selection clause, however, 

“[t]he calculus changes, because the clause represents the parties’ 

agreement as to the most proper forum.” Van Rooyen v. Greystone Home 

Builders, LLC, 295 F. Supp. 3d 735, 745 (N.D. Tex. Mar. 14, 2018) (Fitzwater, 

J.) (brackets in original) (internal quotation marks omitted) 

(quoting Atlantic Marine Construction Company v. United States District 

Court for Western District of Texas, 571 U.S. 49, 60 (2013)). But before a 

court moves away from traditional Section 1404(a) analysis, several 

threshold determinations must be made. First, “[w]hen the existence of a 

contractually valid forum-selection clause is in dispute, ‘the Court must first 

determine whether a contractually valid forum-selection clause exists that 

applies to the present case.’” D.A. Schoggin, Inc. v. Arrow Elecs., Inc., 2020 

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WL 7027469, at *2 (N.D. Tex. Nov. 30, 2020) (Lindsay, J.) (quoting Brown 

v. Federated Capital Corp., 991 F. Supp. 2d 857, 860 (S.D. Tex. 2014)). “This 

determination ‘involves two separate inquiries: (1) whether the parties 

agreed to a contractually valid forum-selection clause, and (2) whether the 

present case falls within the scope of the forum-selection clause.’” Id. 

(quoting Brown v. Federated Capital Corp., 991 F. Supp. 2d 857, 860 (S.D. 

Tex. 2014)). To answer these questions, “courts generally . . . should apply 

ordinary state-law principles that govern the formation of contracts.” 

Stinger v. Chase Bank, USA, NA, 265 F. App’x 224, 226-27 (5th Cir. 2008) 

(per curiam) (citing First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 

944 (1995)).

Further, there is a strong presumption favoring enforcement of 

mandatory forum-selection clauses. Weber v. PACT XPP Techs., AG, 811 

F.3d 758, 773 (5th Cir. 2016) (citing Haynsworth v. The Corp., 121 F.3d 956, 

962-63 (5th Cir. 1997)). But this presumption “may be overcome[] . . . by a 

clear showing that the clause is ‘unreasonable’ under the circumstances.” 

Haynsworth v. The Corp., 121 F.3d 956, 963 (5th Cir. 1997) (citing The

Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10 (1972)). “Unreasonableness 

potentially exists when:

(1) the incorporation of the forum selection clause into the 

agreement was the product of fraud or overreaching; (2) the 

party seeking to escape enforcement will for all practical 

purposes be deprived of his day in court because of the grave 

inconvenience or unfairness of the selected forum; (3) the 

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fundamental unfairness of the chosen law will deprive the 

plaintiff of a remedy; or (4) enforcement of the forum selection 

clause would contravene a strong public policy of the forum 

state.

Id. (citing Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 595 (1991)).

Once a court answers these threshold inquiries and determines that 

the parties agreed to a valid and enforceable mandatory forum-selection 

clause, it conducts a modified analysis of that outlined by the Supreme Court 

in Atlantic Marine. Granoff as Tr. of Granoff Acquisition Tr. v. Buoyance, 

Inc., 2020 WL 7495553, at *3 (E.D. La. Dec. 21, 2020). The analysis differs 

in three respects: the district court considering the motion to transfer “(1) 

may not give the plaintiff’s choice of forum any weight because plaintiff, as 

the party contesting the forum-selection clause, bears the burden of 

establishing that transfer to the forum for which the parties bargained is 

unwarranted; (2) may only consider arguments about the public interest 

factors, as the court must deem the private interest factors to weigh entirely 

in favor of the preselected forum; and (3) recognize[s] that a transfer of 

venue will not carry with it the original venue’s choice of law rules.” D.A. 

Schoggin, Inc., 2020 WL 7027469, at *2 (quoting Atlantic Marine, 571 U.S. 

at 59).

Ultimately, “[w]hen the parties have agreed to a valid forum-selection 

clause, a district court should ordinarily transfer the case to the forum 

specified in that clause.” Atlantic Marine, 571 U.S. at 62. “Only under 

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extraordinary circumstances unrelated to the convenience of the parties 

should a § 1404(a) motion be denied.” Id. And “the party acting in violation 

of the forum-selection clause . . . bear[s] the burden of showing that publicinterest factors overwhelmingly disfavor” enforcement of the parties’ 

selected forum. Atlantic Marine, 571 U.S. at 67. “[T]he practical result is that 

[forum-selection clauses] should control except in unusual cases,” as 

“[c]ases in which the public-interest factors are sufficiently strong to 

outweigh a valid [forum-selection clause] will not be common.” Weber, 811 

F.3d at 77 (internal quotation marks omitted) (quoting Atlantic Marine, 571 

U.S. at 64).

Analysis

A. Threshold Inquiries

Defendants contend that Wilprit agreed to the forum-selection clause 

contained in the CreditWise terms and conditions when she enrolled in the 

CreditWise service. Mot. 1 (ECF No. 34). Wilprit denies enrolling in the 

CreditWise service, and thus, disputes that she agreed to any terms and 

conditions, including any forum-selection clause. Resp. ¶ 3 (ECF No. 47). 

Accordingly, the first threshold issue in resolving the Motion to Transfer is 

to determine, under ordinary state-law contract principles, whether a valid 

contract exists between Wilprit and Defendants.

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Under Texas law,2 a party establishes contract formation by proving 

“an offer and acceptance and a meeting of the minds on all essential terms.” 

Ibe v. Jones, 836 F.3d 516, 524 (5th Cir. 2016) (quoting Principal Life Ins. 

v. Revalen Dev., LLC, 358 S.W.3d 451, 454-55 (Tex. App.—Dallas 2012, pet. 

denied)). “The determination of a meeting of the minds is based on the 

objective standard of what the parties said and did, not on their subjective 

states of mind.” Parker Drilling Co. v. Romfor Supply Co., 316 S.W.3d 68, 

75 (Tex. App. 2010).

Here, as evidence that a valid contract was formed and that Wilprit 

agreed to the forum-selection clause, Defendants offer the sworn declaration 

of Amshuman Ramachandran. App., Decl. (ECF No. 35). Wilprit asks the 

Court to not consider the declaration, objecting that it is “wholly deficient as 

it is only supported by self-serving factual and legal conclusions[] [and]

numerous unsubstantiated statements that are irrelevant to the [ ] Motion 

before the Court.” Resp. ¶ 5 (ECF No. 47). She further contends that “the 

Declarant lacks personal and relevant knowledge of the facts to make the 

2 The Court does not need to undertake a choice-of-law analysis between 

Texas and Virginia contract law; “[w]here there are no differences between 

the relevant substantive laws of the respective states, there is no conflict, and 

a court need not undertake a choice of law analysis.” R.R. Mgmt. Co. v. CFS 

Louisiana Midstream Co., 428 F.3d 214, 222 (5th Cir. 2005). And Texas and 

Virginia require the same basic elements for contract formation, considered 

under an objective standard—offer, acceptance, and meeting of the minds. 

See, e.g., Phillips v. Mazyck, 273 Va. 630, 636, 643 S.E.2d 172, 175 (2007); 

Moorman v. Blackstock, Inc., 276 Va. 64, 68, 661 S.E.2d 404, 406 (2008).

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Declaration reliable.” Id. But these objections speak to the weight rather 

than the admissibility of the evidence. Therefore, the Court should overrule 

the objections and consider the sworn declaration. See Young v. Cap. One 

Bank USA NA, 2022 WL 17084387, at *3 (N.D. Tex. Nov. 18, 2022) (Lynn, 

J.) (in a factually analogous case, brought against the same Defendants by 

the same plaintiff’s counsel, overruling plaintiff’s objections that

Ramachandran’s declaration and deposition testimony “lacks credibility, 

lacks personal and relevant knowledge and expertise, and relies upon 

conclusory facts and allegations”).

In his declaration, Ramachandran declares under penalty of perjury 

that as a Senior Business Manager for Capital One services, LLC, his primary 

responsibilities include work related to the CreditWise credit monitoring 

service. App., Decl. ¶ 3 (ECF No. 35). Consequently, he is “familiar with 

retrieving and reviewing records and data of: (i) enrollment in CreditWise; 

(ii) online log-ins for individual customers’ CreditWise accounts; and (iii) 

individual customers’ account access for CreditWise.” Id. ¶ 4. 

Ramachandran reviewed the records related to Wilprit’s enrollment, 

which show that she enrolled in the CreditWise service on June 3, 2017. Id.

¶ 8-9. He describes that Defendants’ computer system does not allow a

Capital One customer to login to access a CreditWise summary page unless 

the customer has already enrolled in the CreditWise service. Id. ¶ 11-12. If a 

customer has not enrolled in the service and tries to access a personal 

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CreditWise summary page, the system directs the customer to the

CreditWise enrollment page. Id. The records for Wilprit’s CreditWise 

account show that she logged on to view her summary page on at least three 

occasions. Id. ¶ 23.

Once on the enrollment page, either after attempting to view a

CreditWise report or otherwise, “a consumer with an existing Capital One 

account[] would have been directed to an enrollment page requiring the 

consumer to agree to the Terms and Conditions for CreditWise. The Terms 

and Conditions were available for consumers to review by clicking on a 

hyperlink in the box immediately above the “Accept” button.” Id. ¶ 11. The 

customer cannot complete the enrollment process until the she accepts the 

terms and conditions by pressing the “Accept” button. Id. Ramachandran 

provides screenshots of the computer code used by Defendants to require 

customers to accept the CreditWise terms and conditions before enrolling in 

the service. Id. at Ex. 3.

Ramachandran also attaches Wilprit’s enrollment record to his sworn 

declaration. Id. at Ex. 6. The record reveals Wilprit’s personal identifying

information, including her name, birthdate, address, email, and social 

security number. Id. (birthdate and social security number partially 

redacted). The record also shows Wilprit’s CreditWise “profile open date” as 

“06/03/2017” and lists a “Y” next to “Accepted Terms and Conditions?”. Id.

Ramachandran further provides a copy of the CreditWise Terms and 

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Conditions in effect on June 3, 2017. Id. at Ex. 4. The Terms and Conditions 

includes the “Governing Law; Jurisdiction and Venue” provision which 

explains that consumers who enroll in the service “irrevocably and 

unconditionally submit to the jurisdiction and venue of the United States 

District Courts for the Eastern District of Virginia[.]” Id.

In her Response, Wilprit argues that “Defendants’ Renewed Motion is 

predicated on their erroneous assumption that there is a CreditWise 

contract between the parties, however, no such contract has been alleged, 

and certainly not proven.” Resp. ¶ 3 (ECF No. 47). The only evidence Wilprit 

provides to refute that she did enter into the contract—and thus, the only 

evidence that she did not agree to the forum-selection clause—is her own 

sworn declaration. App., Decl. (ECF No. 48). She declares that she “did not 

desire, apply for or enroll in the credit monitoring service called CreditWise” 

and “never read any Terms and Conditions[.]” Id. ¶ 5. She elaborates, “I have 

never been asked if I wanted to enroll in CreditWise nor has anyone from 

Capital One or CreditWise ever asked me to read the CreditWise Terms and 

Conditions. They simply began sending me emails without my request.” Id. 

¶ 6.

Wilprit’s statements, by themselves, are ultimately disproved by the 

detailed explanation of CreditWise’s enrollment process and Capital One’s 

computer system in Ramachandran’s sworn declaration, as well as the 

documentary evidence he attaches. See D.A. Schoggin, Inc., 2020 WL 

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7027469, at *5 (“An unsupported statement cannot be the only evidence 

establishing the non-existence of a written contract.”) (citing Stinger v. 

Chase Bank, USA, NA, 265 F. App’x 224, 227 (5th Cir. 2008)).

For purposes of the pending Motion to Transfer, the Court should find 

that Wilprit enrolled in the CreditWise service, and in doing so, she agreed 

to the forum-selection clause included in the service’s terms and conditions.

Specifically, the enrollment record provides direct evidence of Wilprit’s 

enrollment, indicating that Wilprit opened her CreditWise profile on June 

3, 2022. And the evidence further demonstrates that two things happened 

that could not have occurred without Wilprit enrolling—she received emails 

from CreditWise and she accessed her CreditWise summary. The evidence 

further shows that a customer cannot complete the enrollment process 

without clicking the “accept” button on the webpage providing access to the 

terms and conditions containing the forum-selection clause at issue.

Although Wilprit claims that she did not read the terms and conditions, that 

assertion does not defeat the evidence that she clicked “accept” and formed 

a valid contract.

The second threshold issue in resolving the Motion to Transfer is to 

determine whether Wilprit’s lawsuit falls within the scope of the forumselection clause. Wilprit does not address this inquiry; rather, she bases her 

response on her contention that she never agreed to the forum-selection 

clause. But the terms and conditions of the CreditWise service agreement 

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make clear that her claims in this lawsuit are subject to the forum-selection 

clause, as those claims arise out of her allegations that she received emails 

from Defendants through Capital One’s CreditWise service attempting to 

collect her debt and that Defendants improperly accessed her credit 

information. These are precisely the actions contemplated by the CreditWise 

service agreement. App., Ex. 4 (“You are asking CreditWise to get your credit 

information and/or score from one or more credit reporting agencies. We’ll 

pull fresh credit report information for you periodically unless you cancel 

your CreditWise account. We use your credit information to provide you 

with credit education and alerts. We may also look to match you with Capital 

One products we think you might like, and to see if you are eligible for these 

products.”); id. (“To help you monitor your credit, we’ll send you push 

notifications and emails. For example, we may send alerts if we see a 

meaningful change to your credit reports, . . . . If you don’t want us to contact 

you in this way, this may not be a product for you.”). The forum-selection 

clause is merely another provision within the CreditWise service agreement.

Accordingly, the terms and conditions directly address the issues raised by 

Wilprit’s claims, and the forum-selection clause is clearly meant to apply.

The third threshold issue in resolving the Motion to Transfer is to 

determine whether the forum-selection clause is mandatory. Again, Wilprit 

does not address or dispute that the clause is mandatory—she simply argues

she did not agree to it. A forum-selection clause “is mandatory only if it 

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contains clear language specifying that litigation must occur in the specified 

forum[.]” Weber, 811 F.3d at 768. Here, the forum-selection clause specifies 

that litigation must occur in the Eastern District of Virginia by telling 

customers that by accepting the terms and conditions, they “irrevocably and 

unconditionally submit to the jurisdiction and venue” of that court. Indeed, 

courts in this District have already found the exact language at issue in this 

provision to be mandatory. See Young, 2022 WL 17084387, at *3 (finding 

the exact same clause within the CreditWise contract to be mandatory).

The final threshold issue in resolving the Motion to Transfer is to 

determine whether Wilprit has overcome the presumption that mandatory 

forum-selection clauses are enforceable. While she argues that the

CreditWise service agreement is “unenforceable due to illegality, unilateral 

mistake or unconscionability,” she does not elaborate on or in any way 

support this bare conclusion. Resp. ¶ 6 (ECF No. 47). Overcoming the strong 

presumption in favor of enforcement requires a “clear showing that the 

clause is unreasonable under the circumstances.” Haynsworth, 121 F.3d at 

963 (internal quotations omitted). Having made no showing at all, Wilprit 

clearly fails. 

In sum, the threshold inquiries direct the Court away from the 

traditional Section 1404(a) analysis and toward the altered calculus favoring 

granting a motion to transfer in all but the most unusual cases. 

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B. 28 U.S.C. § 1404(a) Analysis

First, the Eastern District of Virginia, Alexandria Division, is a proper 

venue for this case. Wilprit could have filed her suit in any judicial district in 

which Defendants reside. See 28 U.S.C. § 1391(b)(1). And “an entity with the 

capacity to sue and be sued in its common name under applicable law, 

whether or not incorporated, shall be deemed to reside, if a defendant, in 

any judicial district in which such defendant is subject to the court’s personal 

jurisdiction[.]” 28 U.S.C. § 1391(c)(2). A corporate entity is subject to a 

federal court’s general personal jurisdiction where the entity is “at home” in 

the forum state. Daimler AG v. Bauman, 571 U.S. 117, 127 (2014). Examples

of places where a corporation is deemed to be “at home” are its state of 

incorporation and its principal place of business. Goodyear Dunlop Tires 

Operations, S.A. v. Brown, 564 U.S. 915, 924 (2011). 

Here, Defendants maintain their headquarters in McLean, Virginia, 

which is in Fairfax County, and Fairfax County is within the Alexandria 

Division of the Eastern District of Virginia. See 28 U.S.C. § 127(a). 

Accordingly, Defendants are “at home” in that district. See Hertz Corp. v. 

Friend, 559 U.S. 77, 93 (2010) (corporation’s “principal place of business” 

should normally be the place where the corporation maintains its 

headquarters—provided that the headquarters is the actual center of 

direction, control, and coordination, i.e., the “nerve center”); Wachovia 

Bank v. Schmidt, 546 U.S. 303, 307 (2006) (national banking associations 

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should not be treated differently than other corporate bodies for 

jurisdictional purposes).

Second, skipping over private interest factors, public interest factors 

do not overwhelmingly disfavor transfer as is required to ignore the forumselection clause—indeed, the public interest factors favor transfer.

Regarding court congestion, Defendants offer that in the year “2020-21, the 

Eastern District of Virginia had 4,506 cases filed. For the same time period, 

the Northern District of Texas had 7,413 cases filed.” Additionally, “[i]n the 

Eastern District of Virginia, the median number of months between filing 

and disposition was 6.5 in 2021. For the Northern District of Texas, the 

median number of months between filing and disposition was 19.4 in 2021.” 

Mot. 10 (ECF No. 34) (citing https://www.uscourts.gov/statisticsreports/us-district-courts-judicial-business-2021). This evidence favors 

transfer, and Wilprit does not meaningfully rebut it—instead, she complains 

about the evidence Defendants do not present, such as statistics specific to 

the Dallas Division. But Wilprit, not Defendants, carries the burden imposed 

by the modified Section 1404(a) calculus. Atlantic Marine, 571 U.S. at 67. 

Other public interest factors are neutral regarding transfer. For 

example, both the Northern District of Texas and the Eastern District of 

Virginia have a local interest in this matter—Wilprit resides in the former, 

while Defendants are headquartered in the latter. Additionally, the interest 

in having the trial of a diversity case in a forum that is at home with the law 

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is less applicable in this case, where Wilprit predicates subject matter 

jurisdiction on federal question jurisdiction. See Compl. ¶ 10 (ECF No. 1). 

And regardless, for any questions that may require application of Texas law, 

the Supreme Court has recognized that the federal courts of other states are 

able to apply Texas law. See, e.g., Atlantic Marine, 571 U.S. at 67-68 

(“[F]ederal judges routinely apply the law of a State other than the State in 

which they sit. We are not aware of any exceptionally arcane features of 

Texas contract law that are likely to defy comprehension by a federal judge 

sitting in Virginia.”).

Ultimately, Wilprit does not show that “extraordinary circumstances 

unrelated to the convenience of the parties” are present to justify ignoring

the contractual choice of forum. Atlantic Marine, 571 U.S. at 62. Instead of 

meaningfully rebutting Defendants’ evidence regarding public interest 

factors favoring transfer, she emphasizes private interests and complains 

that since she lives in Dallas County, it would be personally inconvenient to 

litigate in Virginia. See Resp. ¶ 23 (ECF No. 47). “However, such 

inconvenience would exist in any litigation taking place outside one’s home 

forum, and accordingly does not constitute ‘extraordinary’ circumstances 

that would justify disregarding the forum selection clause.” Young, 2022 WL 

17084387, at *4.

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20

Recommendation

For the reasons stated, the Court should GRANT Defendants’ Motion 

to Transfer Venue (ECF No. 34) and transfer this case to the Eastern District 

of Virginia, Alexandria Division.

SO RECOMMENDED. 

November 30, 2023. 

____________________________

REBECCA RUTHERFORD

UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation shall be served on all 

parties in the manner provided by law. Any party who objects to any part of 

this report and recommendation must file specific written objections within 

14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. 

P. 72(b). To be specific, an objection must identify the specific finding or 

recommendation to which objection is made, state the basis for the 

objection, and specify the place in the magistrate judge’s report and 

recommendation where the disputed determination is found. An objection 

that merely incorporates by reference or refers to the briefing before the 

magistrate judge is not specific. Failure to file specific written objections will 

bar the aggrieved party from appealing the factual findings and legal 

conclusions of the magistrate judge that are accepted or adopted by the 

district court, except upon grounds of plain error. See Douglass v. United 

Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).

Case 3:22-cv-00452-K Document 62 Filed 11/30/23 Page 20 of 20 PageID 1202