United States District Court, N.D. Ohio, Eastern Division
LINDSAY RAFFERTY, on behalf of herself and all other similarly situated, PLAINTIFF,
DENNY'S, INC., DEFENDANT.
MEMORANDUM OPINION AND ORDER
HONORABLE SARA LIOI UNITED STATES DISTRICT JUDGE.
the Court is the motion to transfer venue filed by plaintiff
Lindsay Rafferty (“Rafferty”). (Doc. No. 18
(“Mot.”).) Defendant Denny's, Inc.
(“Denny's”) filed a memorandum in opposition.
(Doc. No. 19 (“Opp'n”).) No. reply has been
permitted. For the reasons set forth herein, Rafferty's
motion is denied.
October 17, 2018, Rafferty filed her complaint under the Fair
Labor Standards Act (“FLSA”), 29 U.S.C. §
201, et seq., on behalf of herself and all others
similarly situated, arising out of her employment by
Denny's in the State of Ohio. Although no motion to
certify the collective has yet been filed, the complaint
identified a nationwide collective that plaintiff would seek
8, 2019, this Court granted Denny's motion to dismiss for
lack of personal jurisdiction the FLSA claims of any putative
collective members not arising from employment by Denny's
in Ohio. Thus, provided a collective is certified, the Court
has limited this action to claims of plaintiff and similarly
situated employees of restaurants operated by Denny's in
Ohio only. (See Memorandum Opinion and Order, Doc.
No. 16 at 244.)
31, 2019, Rafferty filed the instant motion, seeking to
transfer this action to the United States District Court for
the Middle District of Florida. Denny's opposes the
bases her motion on 28 U.S.C. § 1404(a), which provides
that “[f]or the convenience of the parties and
witnesses, in the interest of justice, a district court may
transfer any civil action to any district or division where
it might have been brought.” She incorrectly represents
that defendant's motion to dismiss argued in part
“that the proper venue for a nationwide collective is
either South Carolina or Florida.” (Mot. at 247 (citing
Doc. No. 7, Motion to Dismiss).)
Rafferty opposed the motion to dismiss filed by Denny's,
she made no argument that, in the alternative to dismissal,
the case should be transferred to another venue. Rafferty
will not be permitted to test out a nationwide collective
theory and, when it fails, try to start over by belatedly
seeking a transfer of venue.
addition, Rafferty is ignoring the fact that this Court has
already narrowed the scope of this case to claims of persons
employed by Denny's in Ohio only. “[W]hen an action
is transferred, it remains what it was; all further
proceedings in it are merely refer[r]ed to another tribunal,
leaving untouched what has already been done.”
Magnetic Eng'g & Mfg. Co. v. Dings Mfg. Co.,
178 F.2d 866, 868 (2d Cir. 1950). Granting Rafferty's
motion to transfer venue at this juncture would cause more
problems than it would solve. “[U]nder § 1404(a),
a district court should consider the private interests of the
parties, including their convenience and the convenience of
potential witnesses, as well as other public-interest
concerns, such as systemic integrity and fairness, which come
under the rubric of ‘interests of justice.'”
Moses v. Bus. Card Express, Inc., 929 F.2d 1131,
1137 (6th Cir. 1991). Transferring this now
“Ohio-centered” case to another venue would
actually disturb all of these policy concerns, as well as
cause prejudice to the defendant.
is not asking this Court to vacate its limiting order. As a
result, whereas the case might have been originally
brought in another venue (a finding not made by this Court
despite Rafferty's incorrect assertion to the contrary
(Mot. at 247 (citing Memorandum Opinion and Order, Doc. No.
16)), given the case's current limited
scope, that is no longer true.
Court is also not persuaded by Rafferty's assertion that
“requiring [her] to dismiss her claims and refile them
in Florida, would be prejudicial to [p]laintiff
Rafferty.” (Mot. at 248.) Rafferty herself chose this
forum in the first instance and she is not required
to dismiss the case- she is free to continue to pursue her
claims here, and to move to certify an appropriate collective
consisting of similarly situated Ohio employees of
Denny's. All of the policy concerns listed in §
1404(a), as interpreted by the Sixth Circuit, will be met.
Rafferty now prefers a strategy of dismissal and
refiling elsewhere, so as to pursue the claims of a broader,
nationwide collective in a venue that has personal
jurisdiction over Denny's, that choice is hers; but she
cannot be heard to argue prejudice as a result of her own
initial forum choice and her equally clear choice
not to timely seek transfer when she opposed
defendant's motion to dismiss and before the Court ruled