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Harris v. Lord & Taylor LLC

United States District Court, D. Delaware

April 25, 2019

JULIA A. HARRIS, GRETA MOSS, LARRY PAYNE, DEBBIE CARTHAN, BERNADETTE BEEKMAN, LESLIE LEVITT-RASCHELLA, JOHN CONA, GEORGINA MEDURI, KELLY MCGURN, CASSANDRA MEDURI, AND MARK WADE, individually and on behalf of all others similarly situated, Plaintiffs,
v.
LORD & TAYLOR LLC, Defendant.

          Ralph N. Sianni, Andersen Sleater Sianni, LLC, Wilmington, DE; Janine Pollack, The Sultzer Law Group P.C., New York, NY; Daniel Tepper, Wolf Haldenstein Adler Freeman & Herz LLP, New York, NY, Ben Barnow, Erich P. Schork, Barnow and Associates, P.C., Chicago, IL; Howard L. Longman, Melissa R. Emert, Stull, Stull & Brody, New York, NY; Charles E. Schaffer, Levin Sedran & Berman, LLP, Philadelphia, PA; Jeffrey S. Goldenberg, Goldenberg Schneider, LPA, Cincinnati, OH; Gary Mason, Whitfield Bryson & Mason LLP, Washington, DC; Laurence D. King, David A. Straite, Kaplan Fox & Kilsheimer, LLP, New York, NY; John A. Yanchunis, Ryan Mcgee, Morgan & Morgan, Tampa, FL; Jean Sutton Martin, Law Office of Jean Sutton Martin PLLC, Wilmington, NC; Lynda J. Grant, The Grant Law Firm, PLLC, New York, NY - attorneys for Plaintiffs and the proposed Class and Subclasses

          Jody C. Barillare, Morgan, Lewis & Bockius LLP, Wilmington, DE; Gregory T. Parks, Ezra D. Church, Kristin M. Hadgis, Morgan, Lewis & Bockius, LLP, Philadelphia, PA - Attorneys for Defendant

          MEMORANDUM OPINION

          NOREIKA, U.S. DISTRICT JUDGE.

         Before the Court is Defendant Lord & Taylor LLC's (“Defendant” or “Lord & Taylor”) Motion to Transfer Venue Pursuant to Section 1404(a) to The Southern District of New York. (D.I. 18). Plaintiffs Julia A. Harris, Greta Moss, Larry Payne, Debbie Carthan, Bernadette Beekman (“Beekman”), Leslie Levitt-Raschella, John Cona, Georgina Meduri, Kelly McGurn, Cassandra Meduri, and Mark Wade (collectively, “Plaintiffs”), individually and on behalf of all others similarly situated, oppose transfer. (D.I. 23). For the reasons set forth below, Defendant's motion to transfer will be granted, and this case will be transferred to the Southern District of New York.

         I.BACKGROUND

         On April 5, 2018, Plaintiff Beekman filed the instant class action suit against Lord & Taylor on behalf of herself and others similarly situated. (D.I. 1). In response, Defendant filed a Motion to Dismiss the Complaint on the Grounds of Forum Non Conveniens, or, in the Alternative, to Transfer Venue Pursuant to Section 1404(a) to the Southern District of New York. (D.I. 6). On September 14, 2018, Plaintiffs filed an Amended Class Action Complaint (“Amended Complaint”) (D.I. 16), asserting the same four causes of action included in the original complaint - negligence, breach of implied contract, unjust enrichment, and negligence per se - but adding ten (10) additional named plaintiffs, a count for declaratory judgment, and nine state law claims that arise under the laws of Connecticut, Illinois, Kentucky, New Jersey, New York, Pennsylvania, and Texas. (Id.)

         The Amended Complaint alleges that on March 28, 2018, a criminal syndicate announced the sale on the dark web of credit and debit card records. (Id. ¶ 2). A cybersecurity firm determined that the cards were taken in a breach involving Lord & Taylor retail stores from at least May 2017 through March 2018. (Id.). On April 1, 2018, Defendant announced that it had become aware of the security breach “involving customer payment card data.” (Id. ¶ 3).

         Lord & Taylor is a limited liability company organized under the laws of the State of Delaware. (Id. ¶ 26). Lord & Taylor is headquartered in New York, New York. (D.I. 19, Ex. B ¶¶ 3, 4). Lord & Taylor has no offices, employees, or stores in the state of Delaware. (Id. ¶¶ 5-7). According to the Declaration of Anthony Longo (“Longo”), the Chief Information Security Officer (“CISO”) of Hudson's Bay Company, the parent company of Lord & Taylor, “[t]he team that learned about, analyzed, managed, and communicated about the payment card issue that is subject of Plaintiff's [sic] complaint are all based in New York.” (D.I. 19, Ex. C ¶ 3).

         There are 11 plaintiffs in this action, seeking to represent a nationwide class of Lord & Taylor customers, defined as “[a]ll persons residing in the United States who used their credit, debit, or prepaid debit card at a Lord & Taylor store during the period from May 1, 2017 through April 1, 2018.” (D.I. 16 ¶¶ 12-22). Five (5) of the named plaintiffs are residents of New York. (Id. ¶¶ 16-20). The remaining six (6) named plaintiffs are from Connecticut, Illinois, Kentucky, New Jersey, Georgia, and Texas. (Id. ¶¶ 12-15, 21-22). At least six (6) of the named plaintiffs used credit or debit cards at Lord & Taylor stores in New York. (Id. ¶¶ 12, 16-20). Additionally, there are currently two cases proceeding in separate districts based upon the same breach complained of here: Sacklow v. Saks Inc., No. 1:18-cv-00360 (M.D. Tenn.), Rudolph v. Hudson's Bay Co., et al., No. 1:18-cv-8472 (S.D.N.Y.). (D.I. 19 at 1).

         II. LEGAL STANDARD

         District courts have 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). However, “[a] plaintiff, as the injured party, generally ha[s] been ‘accorded [the] privilege of bringing an action where he chooses, ” Helicos Biosciences Corp. v. Illumina, Inc., 858 F.Supp.2d 367, 371 (D. Del. 2012) (quoting Norwood v. Kirkpatrick, 349 U.S. 29, 31 (1955)), and this choice “should not be lightly disturbed, ” Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995).

         The Third Circuit has recognized 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.”

Jumara, 55 F.3d at 879 (citation omitted). The Jumara court went on to describe twelve (12) “private and public interests protected by the language of § 1404(a).” Id. The private interests include:

“plaintiff's forum preference as manifested in the original choice; the defendant's preference; whether the claim arose elsewhere; the convenience of the parties as indicated by their relative physical and financial condition; the convenience of the witnesses - but only to the extent that the witnesses may actually be unavailable for trial in one of the fora; and the location of books and records ...

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