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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

BRITTON ESPOSITO, CHRISTIAN FRESNO, 

BENJAMIN KUTYLO, ALLYSON ESPOSITO, and 

ALLYSON ESPOSITO, as Mother and Next Friend of 

JANIE DOE, a Minor,

Plaintiffs,

vs.

AIRBNB ACTION, LLC, AIRBNB PAYMENTS, INC., 

AIRBNB, INC., PUERTO PANAL FARM CLUB 

PROPERTY ASSOCIATION AND ASSOCIATION 

BOARD, MATIAS JOSE FERNANDEZ, LINDSAY 

OLSON, and OTHER OWNER(S) AND/OR AIRBNB 

HOSTS OF FARM HOUSE CHAKRA 82, BUENOS 

AIRES, ARGENTINA,

Defendants.

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20 C 2713

Judge Gary Feinerman

MEMORANDUM OPINION AND ORDER

Five guests at an Airbnb vacation rental near Buenos Aires, Argentina seek to hold their 

Argentine hosts and three Airbnb entities liable for an armed robbery that occurred during their 

stay. Doc. 1. The Airbnb entities (collectively, “Airbnb”) move to compel arbitration under the 

Federal Arbitration Act, 9 U.S.C. § 1 et seq., or, in the alternative, to transfer the suit to the 

Western District of Arkansas under 28 U.S.C. § 1404(a). Doc. 27. The suit is transferred to the 

Western District of Arkansas.

Background

In resolving a § 1404(a) motion, the court accepts the complaint’s well-pleaded factual 

allegations, as supplemented by the parties’ evidentiary materials, and draws all reasonable 

inferences in Plaintiffs’ favor. See Deb v. SIRVA, Inc., 832 F.3d 800, 808-09 (7th Cir. 2016). 

The facts are set forth as favorably to Plaintiffs as the relevant materials permit. See ibid. In 

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setting forth the facts at this stage, the court does not vouch for their “objective truth.” Goldberg 

v. United States, 881 F.3d 529, 531 (7th Cir. 2018).

Plaintiffs Britton Esposito and Christian Fresno were married on November 14, 2019 in 

Buenos Aires. Doc. 1 at ¶ 45. Christian is a citizen of Argentina and resides there. Id. at ¶¶ 11, 

19. Britton attends medical school in Argentina, but she is an American citizen who remains 

domiciled in Cook County, Illinois, returning to her parents’ home there for three months each 

year. Id. at ¶¶ 11, 18; Doc. 17 at 7. Plaintiff Allyson Esposito, Britton’s sister, attended the 

wedding with her husband, Plaintiff Benjamin Kutylo, and their young daughter, Plaintiff Janie 

Doe. Doc. 1 at ¶¶ 20-21, 44-45. Allyson, Benjamin, and Janie reside in Benton County, 

Arkansas, id. at ¶¶ 11, 20-21, which lies in the Western District of Arkansas, see 28 U.S.C. 

§ 83(b).

On or about October 3, 2019, Allyson used Airbnb’s website to rent the “Farm House,” a 

vacation rental home in a gated community near Buenos Aires, for a three-day stay shortly after 

the wedding. Doc. 1 at ¶¶ 42, 46-47; Doc. 28-1 at ¶ 33; Doc. 38-5 at 2. As Plaintiffs’ counsel 

acknowledged during the motion hearing, Doc. 42, Allyson was in Arkansas when she made the 

reservation. Defendants Matias Jose Fernandez and Lindsay Olson, who are Argentine citizens, 

own the Farm House and rented it to Allyson over Airbnb. Doc. 1 at ¶¶ 17, 46.

Plaintiffs arrived at the Farm House on November 20. Id. at ¶¶ 49-54. Shortly before 

midnight, four masked men invaded the home, brandished guns and knives, and bound and 

gagged the adult plaintiffs. Id. at ¶¶ 57-58, 60-61, 63, 65. The assailants stole cash and jewelry 

and then left. Id. at ¶¶ 60, 62-63, 68. Britton, Allyson, and Benjamin suffered injuries that 

required medical treatment. Id. at ¶¶ 74-76; Doc. 17 at 7-8.

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Discussion

Section 1404(a) provides: “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 ... .” 28 U.S.C. § 1404(a). Transfer under § 1404(a) “is appropriate if: 

(1) venue is proper in both the transferor and transferee court; (2) transfer is for the convenience 

of the parties and witnesses; and (3) transfer is in the interest of justice.” Law Bulletin Publ’g 

Co. v. LRP Publ’ns, Inc., 992 F. Supp. 1014, 1017 (N.D. Ill. 1998); see also Atl. Marine Constr. 

Co. v. U.S. Dist. Court, 571 U.S. 49, 62 (2013) (“In the typical case ... , a district court 

considering a § 1404(a) motion ... must evaluate both the convenience of the parties and various 

public-interest considerations.”); Research Automation, Inc. v. Schrader-Bridgeport Int’l, Inc., 

626 F.3d 973, 978 (7th Cir. 2010) (“The statutory language ... is broad enough to allow the court 

to take into account all factors relevant to convenience and/or the interests of justice.”). The 

moving party bears the burden of demonstrating that a transfer is clearly warranted. See Heller 

Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1293 (7th Cir. 1989); Coffey v. Van Dorn Iron 

Works, 796 F.2d 217, 219-20 (7th Cir. 1986). “The weighing of factors for and against transfer 

necessarily involves a large degree of subtlety and latitude, and, therefore, is committed to the 

sound discretion of the trial judge.” Coffey, 796 F.2d at 219.

As to the first step of the transfer analysis, venue is proper in the Western District of 

Arkansas, the proposed transferee court, because “a substantial part of the events or omissions 

giving rise to the claim occurred” in that District. 28 U.S.C. § 1391(b)(2). In particular, Benton 

County, Arkansas is where Allyson made the reservation for the Farm House, and it also is 

where Allyson and Benjamin received medical treatment for the injuries they sustained during

the robbery. Doc. 1 at ¶¶ 46, 75-76; Doc. 17 at 8; see Schwarz v. Nat’l Van Lines, Inc., 317 F. 

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Supp. 2d 829, 834 (N.D. Ill. 2004) (holding that venue was proper in the District of Arizona 

under § 1391(b)(2) given that the plaintiff “entered into the contract in Arizona”).

The next step in the § 1404(a) analysis looks to convenience. The convenience factors 

include: “(1) the plaintiff’s choice of forum; (2) the situs of material events; (3) the relative ease 

of access to sources of proof; (4) the convenience of the witnesses; and (5) the convenience [of]

the parties.” Law Bulletin Publ’g, 992 F. Supp. at 1017. The first factor nominally favors this 

District. A plaintiff’s choice of forum typically deserves “substantial weight, particularly when 

it is his home forum.” Baker v. Smith & Wesson Corp., 2019 WL 277714, at *3 (N.D. Ill. Jan.

22, 2019). This District is Britton’s home forum in that she is domiciled in Cook County, Doc. 1 

at ¶ 11, although she spends nine months of the year in Argentina, Doc. 17 at 7. That said, 

“where the conduct and events giving rise to the cause of action did not take place in the 

plaintiff’s selected forum, the plaintiff’s preference has minimal value.” Dunn v. Soo Line R. 

Co., 864 F. Supp. 64, 65 (N.D. Ill. 1994) (quotation omitted); see also Carter v. Baldwin, 2017 

WL 3310976, at *2 (N.D. Ill. Aug. 3, 2017) (“[A] plaintiff’s choice of forum merits less 

deference where the events giving rise to the suit did not occur there.”). Britton’s choice of 

forum only weakly favors this District.

The other convenience factors favor the Western District of Arkansas. As noted, this 

District is not the situs of any material event in this case, with the sole exception of some 

medical treatment that Britton received after the robbery. Doc. 17 at 7. Most of the material 

events occurred in Argentina. The most important event that took place in the United States—

Allyson’s reserving the stay at the Farm House—occurred in Arkansas. The locations where 

each plaintiff agreed to Airbnb’s terms of service could also be significant, and it appears that no

plaintiff did so in this District. Doc. 28-2 at 71 (reflecting that Britton agreed to the terms of 

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service on April 29, 2019); Doc. 17 at 7 (Plaintiffs’ assertion that Britton lives in Cook County 

only from December to February). Finally, Allyson and Benjamin received medical treatment in 

Rogers, Arkansas. Doc. 17 at 8.

No significant sources of proof are in Illinois. Again, Argentina is home to most of the 

key evidence. The domestic jurisdictions with important evidence are Arkansas, the home of the 

only plaintiffs who reside full-time in the United States, and California, where Airbnb has its 

headquarters. Doc. 1 at ¶¶ 12, 20-21. Plaintiffs point out that Airbnb’s third-party claims 

adjuster has forwarded the pertinent case file to its office in Illinois. Doc. 38 at 4; Doc. 39-5 at 

¶¶ 3, 5. It is unclear what exactly that file contains, and Plaintiffs did not submit a claim to the 

adjuster before filing this lawsuit. Doc. 39 at ¶ 2; Doc. 39-5 at ¶¶ 4-6. In any event, the presence 

of those records in Illinois has little weight because they can be easily transported. See Moore v. 

Magiera Diesel Injection Servs., Inc., 2019 WL 2502029, at *3 (N.D. Ill. June 17, 2019) (“The 

location of documentary evidence does not affect the analysis, because in this day and age, 

documents can easily be transferred from place to place.”).

The convenience of witnesses and parties similarly weighs in favor of the Western 

District of Arkansas as the only domestic jurisdiction with a significant connection to this suit. 

Allyson and Benjamin, two of the adult plaintiffs, reside in Arkansas. They received treatment 

from medical providers in Arkansas who also could be material witnesses. Britton lives most of 

the year in Argentina, and all other parties and non-party witnesses are in Argentina as well. 

Plaintiffs argue that the Northern District of Illinois is nevertheless the more convenient forum 

because O’Hare International Airport is better for international travel than “any airport in 

Arkansas.” Doc. 38 at 5-6. But neither O’Hare nor Fayetteville’s Northwest Arkansas National 

Airport has any direct flights to Buenos Aires. See Chi. Dep’t of Aviation, International NonCase: 1:20-cv-02713 Document #: 44 Filed: 11/20/20 Page 5 of 8 PageID #:498
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stop Daily Departures (Sept. 2020), 

https://www.flychicago.com/SiteCollectionDocuments/O%27Hare/MyFlight/INTLnonstops.pdf; 

Nw. Ark. Nat’l Airport Auth., Direct Flights from XNA (2020), 

https://www.flyxna.com/destinations. Buenos Aires is a long journey from both Arkansas and

Illinois, but at least Allyson and Benjamin would not need to travel if this case were tried in the 

Western District of Arkansas. In sum, the convenience factors favor transfer.

The court next evaluates the interest-of-justice factors. “The ‘interest of justice’ is a 

separate element of the transfer analysis that relates to the efficient administration of the court 

system.” Research Automation, 626 F.3d at 978. The interest-of-justice factors are “docket 

congestion and likely speed to trial in the transferor and potential transferee forums; each court’s 

relative familiarity with the relevant law; the respective desirability of resolving controversies in 

each locale; and the relationship of each community to the controversy.” Ibid. (citations

omitted). Considered together, those factors favor the Western District of Arkansas.

As to the first factor, the expected speed of case resolution is faster in the Western 

District of Arkansas. There is little difference in the median time from filing to disposition: 11.2

months in this District, and 10.8 months in the Western District of Arkansas. See Admin. Office 

of the U.S. Courts, United States District Courts—National Judicial Caseload Profile 47, 55 

(June 30, 2020), 

https://www.uscourts.gov/sites/default/files/data_tables/fcms_na_distprofile0630.2020.pdf. But 

the median time from filing to trial is 41.3 months in this District and only 14.3 months in the 

Western District of Arkansas. Ibid.

The second factor, familiarity with applicable law, is neutral. Airbnb’s terms of service 

provide that, for United States residents, the terms are interpreted in accordance with California 

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law. Doc. 28-2 at 48, § 21.1. As to claims unrelated to the terms of service, Plaintiffs have not 

identified any difference in the substantive state law that might ultimately apply. Nothing 

indicates that the law governing this dispute would be more familiar to this court than to a judge 

of the Western District of Arkansas.

The third and fourth factors—the desirability of resolving the controversy in each locale

and the relationship of each community to the controversy—strongly favor transfer. Again, the 

only full-time United States residents allegedly harmed by Defendants’ actions live in Arkansas, 

and the Farm House reservation was made from Arkansas. The Western District of Arkansas’s

community has a greater stake in the litigation.

The attentive reader will notice that the court has skipped one aspect of the § 1404(a) 

analysis. Section 1404(a) may be deployed only if venue is proper in the district where the case 

was filed. See Arthur R. Miller, 15 Federal Practice and Procedure § 3844 (4th ed. 2020) 

(“Transfer is possible under Section 1404(a) only if the transferor court is a proper venue under 

the applicable venue provisions.”). It is unnecessary in this instance to determine whether venue 

is proper in this District, however, because if venue were improper, the court would transfer this 

case to the Western District of Arkansas under § 1406(a), which allows transfer from a district 

where venue is improper to a district where venue is proper. See 28 U.S.C. § 1406(a) (“The 

district court of a district in which is filed a case laying venue in the wrong division or district 

shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in 

which it could have been brought.”); In re LimitNone, LLC, 551 F.3d 572, 575 (7th Cir. 2008).

The one remaining fly in the ointment is choice of law. If a case is transferred under 

§ 1404(a), the transferor state’s choice-of-law rules govern, while if a case is transferred under 

§ 1406(a), the transferee state’s choice-of-law rules govern. See Steen v. Murray, 770 F.3d 698, 

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701 (8th Cir. 2014); Gerena v. Korb, 617 F.3d 197, 204 (2d Cir. 2010); see also Edwardsville 

Nat. Bank & Tr. Co. v. Marion Labs., Inc., 808 F.2d 648, 650 (7th Cir. 1987) (assuming without

deciding that transferee choice-of-law rules apply after a transfer under § 1406(a)). So it may 

matter in some cases whether a suit is transferred under § 1404(a) or under § 1406(a).

It is unnecessary to resolve that question here because Airbnb effectively concedes that 

venue is proper in this District. Plaintiffs argue that venue lies in this District under 28 U.S.C. 

§ 1391(b)(1), which provides venue in “a judicial district in which any defendant resides.” 

Doc. 17 at 5. For venue purposes, Airbnb is deemed to reside “in any judicial district in which 

[it] is subject to the court’s personal jurisdiction with respect to the civil action in question.” 28 

U.S.C. § 1391(c)(2). The venue question thus turns on whether this court has personal 

jurisdiction over Airbnb. A defendant may consent to personal jurisdiction, see Heller, 883 F.2d 

at 1290, and Airbnb essentially does so here by seeking a § 1404(a) transfer rather than a 

§ 1406(a) transfer, Doc. 27 at ¶ 5. In so doing, Airbnb forfeited, if not waived, any argument 

that venue does not lie in this District.

Conclusion

Airbnb’s § 1404(a) motion to transfer is granted, and the suit is transferred to the Western 

District of Arkansas. The other aspects of Airbnb’s motion are denied without prejudice to 

renewal in the transferee court.

November 20, 2020 ___________________________________

United States District Judge

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