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Federal Bar Update: Magistrate Judge Pryor makes impact

June 13, 2018

FedBarMaley-sigSince taking the bench in March, Magistrate Judge Doris Pryor has been immersed in the work of the court.

Federal practice background: Judge Pryor was a longtime veteran of federal practice. Before her judicial appointment, she served as the national security chief for the United States Attorney’s Office for the Southern District of Indiana. From 2006 until her appointment as national security chief, she served as an assistant United States Attorney for the Southern District of Indiana. She previously served as a deputy public defender with the Arkansas Public Defender’s Commission. She has also served two terms as a federal judicial law clerk, for Judge J. Leon Holmes in the U.S. District Court for the Eastern District of Arkansas (2004- 2005), and for Chief Judge Lavenski Smith of the U.S. Court of Appeals for the Eighth Circuit (2003-2004). She is also a long-serving member of the Local Rules Advisory Committee for the Southern District of Indiana.

Early decisions: Judge Pryor has already issued multiple opinions in her first quarter on the bench. Many can be accessed (as with other Southern District opinions) in Lexis or Westlaw, with more attainable via the Southern District’s online search tool (found under the “Judges’ Information” menu, Court Opinions).

One early decision from Judge Pryor of interest to civil practitioners is Sutherlin v. Phoenix Closures, Inc., No. 2:17-cv-489, 2018 WL 1697674 (S.D. Ind. April 5, 2018). This is a Federal Labor Standards Act putative collective action, with five opt-in members to date who worked at defendant’s Greencastle facility. Plaintiffs claim the employer misclassified each as an exempt, salaried employee instead of non-exempt, and seek overtime pay.

The employer moved to change venue to the Northern District of Illinois pursuant to 28 U.S.C. § 1404(a). In a lengthy opinion, Judge Pryor denied the motion with a thorough analysis of applicable standards. The starting point, Judge Pryor wrote, is whether the moving party meets its burden of establishing three things: “1) venue is proper in the transferor district; 2) venue and jurisdiction would be proper in the transferee district; and 3) the transfer will serve the convenience of the parties and witnesses and is in the interest of justice.” With the first two elements undisputed, the focus was on the interest of justice.

Judge Pryor then explained, “In determining whether a forum is more convenient and whether a transfer would be in the interest of justice, the court must consider the private interests of the parties as well as the public interest of the court. Research Automation, Inc. v. Shrader-Bridgeport Int’l., Inc., 626 F.3d 973, 978 (7th Cir. 2010). Private interests include: 1) the plaintiff’s choice of forum; 2) the situs of material events; 3) the relative ease of access to sources of proof; and 4) the convenience to witnesses and parties. Id.; Nicks v. Koch Meat Co., 260 F. Supp. 3d 942, 954 (N.D. Ill. 2017). “Where the balance of convenience is a close call, merely shifting inconvenience from one party to another is not a sufficient basis for transfer.” Research Automation, 626 F.3d at 978-79.”

Plaintiffs’ choice of forum: Judge Pryor examined the weight to be given plaintiffs’ choice of forum, writing that unless the balance is strongly in favor of defendant, plaintiffs’ choice of forum “should rarely be disturbed.” She noted several courts have observed “the FLSA provides an ‘opt-in’ procedure under 29 U.S.C. § 216(b) and have accordingly concluded that ‘Congress intended to give plaintiffs considerable control over the bringing of an FLSA action.’”

She concluded on this point: “Thus far, five plaintiffs have opted in to the present collective action, all of whom live within the Southern District of Indiana and, more specifically, within the Terre Haute division. These five individuals have, by signing on, affirmatively represented that the present district is convenient for them and, accordingly, this court gives significant deference to that decision. Should any other plaintiffs in the defendant’s three other facilities decide to participate, they will have the choice to either opt-in to this existing case or pursue their own action in a more convenient district.”

Situs of materials/relative ease of access to evidence: Judge Pryor noted the current plaintiffs all reside in Indiana and were compensated here, but the employer is in Illinois and the alleged violations stem from corporate policies and decisions made there. Although the employer argued its HR and payroll documents are in Illinois, the court noted the physical location of records is a holdover from paper record days. The court wrote, “Given the technological advancements in document production, ‘documentary evidence is readily transferable and transporting it generally does not pose a high burden upon either party.’” Judge Pryor thus found “this factor remains neutral.”

Convenience to witnesses, parties: On this prong, Judge Pryor wrote, “The convenience of witnesses, particularly non-party witnesses, is considered the most important factor in the transfer equation. When evaluating this factor, the Court must examine “‘the nature and quality’ of each proposed witness’s testimony ... [and] whether the witnesses are likely to appear voluntarily, whether they will be subject to compulsory process, and whether they are experts, whose attendance is controlled by the party who hired them.” Additionally, “the convenience of employee witnesses is given less weight than the convenience of non-party witnesses.”

Judge Pryor ultimately concluded this factor was of little impact in this setting, writing, “Each side prefers its home forum, and while each side would be burdened by litigating in its non-preferred forum, the burden would not be particularly great given the ease of travel between the two forums. Neither side has demonstrated that its burden will substantially outweigh the other’s if it does not get its choice of forum.”

Public interest to the court: Finally, the court addressed the public interest of relative docket congestion and prospects for a speedy trial. Although acknowledging that the Southern District is in a judicial emergency with extraordinary caseloads, Judge Pryor noted that the Southern District remains speedy in disposing of cases.

She noted cases filed in the Southern District were disposed on average eight months after filing compared to 8.5 months in the Northern District of Illinois. Time from filing to trial in the Southern District was 24.5 months compared to 36.8 months in the Northern District of Illinois. Finally, just 1 percent of civil cases in the Southern District were more than 3 years old, versus 10.5 percent of cases in the Illinois Northern District.

Judge Pryor thus ultimately concluded, “Though the Defendant set forth some good reasons to have this case transferred, those reasons are not enough to tip the scale in favor of transfer. The balancing of factors for this case creates a very close call which, consequently, does not convince this Court that transfer is warranted and, therefore, this Court denies the Defendant’s Motion to Change Venue.”•

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John Maley — jmaley@btlaw.com — is a partner with Barnes & Thornburg, LLP, practicing federal and state litigation, employment matters, and appeals. He clerked for Judge Larry McKinney from 1988-90.

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