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Shively v. Petsmart, Inc.

United States District Court, Third Circuit

October 21, 2013

PETSMART, INC., Defendant.

Jessica Zeldin, Esquire of Rosenthal Monhait & Goddess, P.A., Wilmington, Delaware. Counsel for Plaintiff. Of Counsel: Jeffrey A. Klafter, Esquire, Seth R. Lesser, Esquire, Fran L. Rudich, Esquire, and Rachel Aghassi, Esquire, of Klafter Olsen & Lesser LLP. Marc S. Hepworth, Esquire, David A. Roth, Esquire, and Charles Gershbaum, Esquire, of Hepworth Gershbaum & Roth PLLC.

William R. Denny, Esquire and Michael B. Rush, Esquire of Potter Anderson & Corroon LLP, Wilmington, Delaware. Counsel for Defendant. Of Counsel: Andrew J. Voss, Esquire, Jacqueline E. Kalk, Esquire, and Jeffrey A. Timmerman, Esquire of Littler Mendelson, P.C.


SUE L. ROBINSON, District Judge.


On March 28, 2013, plaintiff Kathleen Ann Shively ("Shively") filed a complaint against defendant PetSmart, Inc. ("PetSmart") alleging that PetSmart, acting by and through, among others, Jodi Ryall ("Ryall") unlawfully retaliated against her for joining and asserting a Fair Labor Standards Act (FLSA) claim for overtime wages and other damages in the McKee v. PetSmart, Inc. [1] matter before this court. (D.I. 4) Shively also filed a motion for a preliminary injunction to enjoin PetSmart and its employees from engaging in any further act of retaliation against her. (D.I. 1) The motion was withdrawn on May 15, 2013. (D.I. 25) Presently before the court is PetSmart's motion to transfer this action to the District of South Carolina. (D.I. 18) The court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1337 and 29 U.S.C. § 216(b). For the reasons that follow, PetS mart's motion to transfer is denied.


Shively is a resident of Duncan, South Carolina. (D.I. 4 at ¶ 7) Shively has worked for PetS mart from in or about July 2002 until the present at PetS mart's stores located in Greenville, Spartanburg, and Taylors, South Carolina. ( Id. at ¶ 8)

PetSmart is a Delaware corporation with its principal place of business located at 19601 N. 27th Avenue, Phoenix, Arizona 85027. ( Id. at ¶ 9) PetSmart operates a chain of 1, 232 stores in 48 states throughout the country, with net sales of over $6.1 billion in fiscal year 2012. ( Id. ) PetS mart does business in Delaware, including at its retail locations throughout the State of Delaware. ( Id. at ¶ 10) Ryall is a store manager at the PetSmart location where Shively is currently assigned, and supervises and directs Shively in her present work for PetSmart. ( Id. at ¶ 17)


Section 1404(a) of Title 28 of the United States Code grants district courts the authority to transfer venue "[f]or the convenience of parties and witnesses, in the interests of justice... to any other district or division where it might have been brought." 28 U.S.C. § 1404(a). Much has been written about the legal standard for motions to transfer under 28 U.S.C. § 1404(a). See, e.g., In re Link_A_Media Devices Corp., 662 F.3d 1221 (Fed. Cir. 2011); Jumara v. State Farm Ins. Co., 55 F.3d 873 (3d Cir. 1995); Helicos Biosciences Corp. v. Illumina, Inc., 858 F.Supp.2d 367 (D. Del. 2012).

Referring specifically to the analytical framework described in Helicos, the court starts with the premise that a defendant's state of incorporation has always been "a predictable, legitimate venue for bringing suit" and that "a plaintiff, as the injured party, generally ha[s] been accorded [the] privilege of bringing an action where he chooses."' 858 F.Supp.2d at 371 (quoting Norwood v. Kirkpatrick, 349 U.S. 29, 31 (1955)). Indeed, the Third Circuit in Jumara reminds the reader that "[t]he burden of establishing the need for transfer... rests with the movant" and that, "in ruling on defendants' motion, the plaintiff's choice of venue should not be lightly disturbed." 55 F.3d at 879 (citation omitted).

The Third Circuit goes on to recognize that,

[i]n ruling on§ 1404(a) motions, courts have not limited their consideration to the three enumerated factors in§ 1404(a) (convenience of parties, convenience of witnesses, or interests of justice), and, indeed, commentators have called on the courts to "consider all relevant factors to determine whether on balance the litigation would more conveniently proceed and the interests of justice be better served by transfer to a different forum.

Id. (citation omitted). The Court then describes some of the "many variants of the private and public interests protected by ...

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