By Jeffrey Birren
Plaintiff Matthew Leonard filed a putative class action against the operator of concession stands at Busch Stadium in St. Louis, claiming various violations of both state and federal law for allegedly not paying minimum wage to certain concession stand workers. Leonard filed the complaint in the Circuit Court of Cole County, Missouri. Delaware North removed it to federal court in the Western District of Missouri. Once there, Delaware North moved for a transfer of venue to the Eastern District of Missouri, the location of Busch Stadium. Leonard opposed the motion. District Court Judge Nanette K. Laughrey granted the motion, sending Leonard on to his third courthouse.
By way of background, many major league venues have arrangements whereby “volunteers” operate concession stands. Instead of receiving paychecks, money is donated to various charities. At some sports venues, individual charities operate a specific concession stand and it is the charity that receives compensation, not the individuals. It is often easy to spot the “charity” concession stands because they have smiling and friendly staff compared to the regular concession stand employees.
Leonard alleged that he was one of the “volunteers” who was recruited to work at the concession stands at Busch Stadium for charity and without compensation. His case was filed on behalf of all such workers. He further alleged that Defendant Delaware North is a for-profit entity with its principal place of business in Missouri and that operates the concession stands at Busch Stadium and Kauffman Stadium, in Kansas City, Missouri
The motion to transfer venue based on 28 U.S.C. §§ 1406(a) and 1404(a). Delaware North submitted a declaration from its Vice President of Finance, Stephen Nowaczyk. He declared that Delaware North does not operate the concession stands at Kauffman Stadium, that its principal place of business is New York, and that based upon information and belief, “virtually all” of the concession stand workers at Busch Stadium live in St. Louis or near Busch Stadium.
Leonard did not dispute those factual allegations, but instead stated that stated that Delaware North operated the concession stands at Edward Jones Dome, also in St. Louis, and Hammons Field in Springfield, Missouri.
The Court only addressed the motion to transfer under § 1404(a). The statute requires the court to address (1) the convenience of the parties, (2) the convenience of the witnesses, and (3) the interests of justice. Western District cases hold the court may also consider a host of other issues related to the case, and ultimately, the moving party must show that that the balance of interests weighs strongly support the motion to transfer. Eighth Circuit precedent holds that the decision is within the trial court’s discretion, (In re Apple, Inc., 602 F.3d 909, 912 (8th Cir. 2010)).
Leonard’s allegations made this a fairly easy motion. Leonard, the sole class representative, did not disclose where he lives. However, he works in St. Louis, and but the entire class as pled also works in St. Louis. Moreover, Nowaczyk’s declaration stated that virtually all of the class lived in or near St. Louis and Leonard did not dispute this. It is also legally “irrelevant” that one of Leonard’s lawyers lives in the Western District of Missouri.
Leonard opposed the motion based on Delaware North’s concessions stands at Hammons Field, a minor league facility that is within the Western District of Missouri. However, Leonard did not plead that the concession stands at Hammons Field were operated in the same allegedly “unlawful manner” as at Busch Stadium. Furthermore, Hammons Field is not part of the “Major League Baseball stadiums at issue” in the case as pled by Leonard.
In considering the motion, if the court considered just Leonard, then the Eastern District of Missouri was the proper venue. If it considered the entire class, then the Eastern District “has a much more substantial connection than the Western District.”
It would be easier for witnesses to travel to the Eastern District, where they apparently all live, than to the opposite end of the state. Leonard’s venue would thus require substantial travel, a decided inconvenience for the witnesses.
The court then applied the “interests of justice” test. The court noted that although courts generally give considerable deference to a plaintiff’s choice of forum, they usually do so when the plaintiff lives in that forum, and Leonard, as previously noted, did not allege that he lives in that forum.. One of his attorneys does, but Delaware North operates no concession stands at issue in the case in the Western District, and Delaware North’s attorneys are located either in St. Louis or out of state. Since most of the witnesses are located in the Eastern District of Missouri, granting the motion to transfer should decrease the costs of litigation.
Consequently, the court “in its discretion concludes Delaware North has made a clear showing that the balance of interests weigh strongly in favor of the proposed transfer.”
If “the past is prologue,” The Tempest, Act II, Scene 1, (W. Shakespeare), then it would seem likely that similar wage and hour lawsuits will soon be the new rage in lawsuits against major league sports. There will be a host of case-specific facts that will require examination, including who approached the volunteers/employees to participate—concession operator or charity—was this irregular work for those individuals or irregular work over the season, the potential application of the “entertainment” exception to federal wage and hour laws, as well as the specific laws of each jurisdiction.
If Leonard is to have his day in court, however, it will be in the third courthouse in this fairly recent case, and one must assume that there will be extensive motion practice before that happens. So although his case may serve as a beacon to other plaintiffs and class action counsel, it should also serve as a warning to subsequent lawyers to plead more carefully before filing.
Leonard v. Delaware North Companies, W.D. Mo.; No. 2:15-cv-04139-NKL. 2015 U.S. Dist. LEXIS 108409; 8/18/15
Birren worked for the LA/Oakland Raiders for 34 seasons and was general counsel for much of that time. During that time he worked closely with owner Al Davis and Amy Trask, the NFL’s first female Club Chief Executive. He has an MA in History from USC and a JD from Southwestern. He can be reached at jebirren@comcast.net
