Wickham v. Schenker, Inc.

Background

Eric Wickham brought a nationwide class action alleging that Schenker, Inc. violated the Fair Credit Reporting Act and California law by failing to provide proper disclosures and obtain proper authorization before conducting credit and background checks on prospective employees. Wickham sought to represent current, former, and prospective Schenker employees who applied for jobs for which background checks were performed.

Schenker moved under 28 U.S.C. § 1404(a) to transfer the case to the Eastern District of Virginia. That statute allows a federal court to transfer a civil case when the proposed district is an available forum and the convenience of the parties and witnesses and the interests of justice favor transfer.

Judicial Notice and Waiver

The court took judicial notice of three exhibits because neither party disputed their authenticity, but stated that it would not consider any irrelevant material in deciding the transfer motion.

The court rejected Wickham’s argument that Schenker had waived its right to seek transfer by not raising venue earlier. The court explained that the waiver rule cited by Wickham applies to a defense of improper venue under Federal Rule of Civil Procedure 12(b)(3), while Schenker’s motion sought discretionary transfer under § 1404(a). A § 1404(a) motion does not depend on showing that the original court is an improper venue.

Transfer Analysis

The court concluded that the action could have been brought in the Eastern District of Virginia. That district would have subject-matter jurisdiction, could exercise general personal jurisdiction over Schenker because its principal place of business is in Chesapeake, Virginia, and would be a proper venue because Schenker resides there and substantial events related to the claims occurred there.

The court nevertheless found that the relevant factors did not favor transfer. Wickham’s choice of the Northern District of California received some weight because he was a California employee, the alleged background check occurred in connection with his California employment, and Schenker employed 86 people and maintained two locations in that district. The court also considered California’s interest in protecting its residents from violations of the Fair Credit Reporting Act.

The court recognized that Virginia might be more convenient for Schenker, some potential witnesses, and access to physical evidence. But litigating in Virginia would be substantially more inconvenient for Wickham. The court also found that witnesses could be deposed in Virginia or remotely and that documents could be copied or shared electronically. Schenker had already retained local counsel in California and Ohio, and transfer at that stage would largely shift the burden to Wickham rather than eliminate inconvenience.

The court further found that both districts were familiar with the relevant federal law, while the Northern District of California was arguably more familiar with the California-law issues. The court concluded that the possible inconvenience to Schenker and its witnesses was not strong enough to overcome Wickham’s forum choice, the inconvenience he would face in Virginia, and the interests of justice, including the case’s four-year history and substantial discovery.

Disposition

The court denied Schenker’s motion to transfer venue. The opinion addressed the location of the litigation and did not decide the underlying allegations or the proposed class’s claims.