Hohenberg v. Ferrero USA, Inc

Filing 33

RESPONSE in Opposition re 19 MOTION for Change Venue filed by Athena Hohenberg, Laura Rude-Barbato. (Attachments: # 1 Declaration of Plaintiff Athena Hohenberg in Opposition to Ferrero's Motion for Transfer of Venue, # 2 Declaration of Plaintiff Laura Rude-Barbato in Opposition to Ferrero's Motion for Transfer of Venue, # 3 Declaration of Jack Fitzgerald in Opposition to Ferrero's Motion for Transfer of Venue, # 4 Unopposed Ex Parte Motion to File Documents Under Seal, # 5 Proof of Service)(Fitzgerald, John) (ag). Modified on 5/4/2011 to create motion (ag).

REDACTED VERSION – FULL VERSION FILED UNDER SEAL 1 2 3 4 5 LAW OFFICES OF RONALD A. MARRON, APLC RONALD A. MARRON (175650) 3636 4th Avenue, Suite 202 San Diego, California 92103 Telephone: (619) 696-9006 Facsimile: (619) 564-6665 ron.marron@gmail.com 10 THE WESTON FIRM GREGORY S. WESTON (239944) JACK FITZGERALD (257370) 888 Turquoise Street San Diego, CA 92109 Telephone: (858) 488-1672 Facsimile: (480) 247-4553 greg@westonfirm.com jack@westonfirm.com 11 INTERIM CLASS COUNSEL 6 7 8 9 12 13 UNITED STATES DISTRICT COURT 14 SOUTHERN DISTRICT OF CALIFORNIA 15 16 17 18 IN RE FERRERO LITIGATION ______________________________________ ATHENA HOHENBERG & LAURA RUDEBARBATO, individually and on behalf of all others similarly situated, 19 22 PLAINTIFFS’ OPPOSITION TO FERRERO’S MOTION FOR TRANSFER OF VENUE Judge: The Honorable Marilyn L. Huff 20 21 CASE NO. 3:11-CV-00205-H-CAB Plaintiffs, v. Date: May 16, 2011 Time: 10:30 a.m. Location: Courtroom 13 FERRERO U.S.A, INC., a foreign corporation, 23 24 Defendant. 25 26 27 28 IN RE FERRERO, NO. 3:11-CV-00205-H-CAB PLAINTIFFS’ OPPOSITION TO FERRERO’S MOTION FOR TRANSFER OF VENUE REDACTED VERSION – FULL VERSION FILED UNDER SEAL 1 TABLE OF CONTENTS 2 TABLE OF AUTHORITIES .................................................................................................................. ii  3 INTRODUCTION ...................................................................................................................................1  4 5 RELEVANT FACTS ...............................................................................................................................1  A.  Plaintiffs Have Substantial Contacts with this District ................................................................1  B.  Ferrero Has Substantial Contacts with California and this District .............................................2  6 7 1.  8 Ferrero Sells Significant Amounts of Nutella in California.............................................2  a.  Ferrero’s “Food” Sales ............................................................................... 2  10 b.  Ferrero’s “Club” Sales ................................................................................ 2  11 c.  Ferrero’s “Mass” Sales ............................................................................... 3  12 d.  Ferrero’s Distribution to California Customers ............................................. 3  9 13 2.  Ferrero’s Nutella Spokesperson, Connie Evers, Throws “Nutella Parties” in California .........................................................................................................................4  15 3.  Ferrero Disseminates False & Misleading Advertising in California ..............................4  16 4.  Ferrero Works with California Vendors & Distributors ..................................................4  17 5.  Ferrero Sends Employees Into California to Sell Nutella ................................................4  14 18 C.  19 ARGUMENT ...........................................................................................................................................6  20 A.  Legal Standard Governing Motions to Transfer Venue Under 28 U.S.C. § 1404(a) ...................6  21 B.  The Private Factors Weigh Against Transfer ...............................................................................8  22 Ferrero’s Sale of Nutella in the United States is a Multinational Effort ......................................4  1.  23 Plaintiffs’ Choice of Forum .............................................................................................8  a.  The Parties’ Contacts with Forum ................................................................. 9  b.  Contacts Relating to Plaintiffs’ Cause of Action ........................................... 10  24 25 26 27 2.  Convenience of the Parties .............................................................................................11  a.  Differences in Costs of Litigation ................................................................ 11  28 i IN RE FERRERO, NO. 3:11-CV-00205-H-CAB PLAINTIFFS’ OPPOSITION TO FERRERO’S MOTION FOR TRANSFER OF VENUE REDACTED VERSION – FULL VERSION FILED UNDER SEAL b.  1 2 3.  3 The Substantial Inconvenience to Plaintiffs if Forced to Litigate in New Jersey ........................................................................................................ 13  Convenience of Witnesses & Access to Evidence .........................................................14  a.  Convenience of the Party Witnesses ............................................................ 16  b.  Convenience of Non-Party Witnesses and Availability of Compulsory Process to Compel Them if Unwilling to Testify ........................................... 17  c.  Ease of Access to Sources of Proof .............................................................. 20  4 5 6 7 C.  The Public Factors Weigh Against Transfer ..............................................................................20  8 1.  Interest of Justice: Efficiency and Related Pending Litigation ......................................20  2.  The State Most Familiar with Governing Law ..............................................................22  3.  California’s Public Policy ..............................................................................................22  4.  The Relative Court Congestion and Time to Trial of Each Forum ................................24  9 10 11 12 13 CONCLUSION ......................................................................................................................................24  14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii IN RE FERRERO, NO. 3:11-CV-00205-H-CAB PLAINTIFFS’ OPPOSITION TO FERRERO’S MOTION FOR TRANSFER OF VENUE REDACTED VERSION – FULL VERSION FILED UNDER SEAL 1 2 TABLE OF AUTHORITIES Cases 3 4 A.J. Indus. v. U.S. Dist. Ct., 503 F.2d 384 (9th Cir. 1974) ...................................................................... 7 5 ADS Security L.P. v. Advanced Detection Security Servs., Inc., 2010 U.S. Dist. LEXIS 27903 (W.D. Tex. Mar. 23, 2010) .......................................................... 14 6 7 8 Affymetrix, Inc. v. Synteni, Inc., 28 F. Supp. 2d 192 (D. Del. 1998) ..................................................... 15 9 Allstar Mktg. Group, LLC v. Your Store Online, LLC, 666 F. Supp. 2d 1109 (C.D. Cal. 2009) .............................................................................................................. 16 10 Alltrade, Inc. v. Uniweld Prods, Inc., 946 F.2d 622 (9th Cir. 1991) ..................................................... 21 11 12 13 14 15 16 17 18 19 20 21 22 Ansel Adams Publ’g Rights Trust v. PRS Media Partners, LLC, 2010 U.S. Dist. LEXIS 126791 (N.D. Cal. Dec. 1, 2010) .............................................................. 7 Applied Elastomerics, Inc. v. Z-Man Fishing Prods., Inc., 2006 U.S. Dist. LEXIS 75339 (N.D. Cal. Oct. 6, 2006) ............................................................ 16, 20, 21 Berenson v. Nat’l Fin. Servs., LLC, 319 F. Supp. 2d 1 (D.D.C. 2004) ............................................................................................................................................. 22 Bibo v. Federal Express, Inc., 2007 U.S. Dist. LEXIS 78388 (N.D. Cal. Oct. 10, 2007) .......................................................................................................... 6, 8, 11, 20 Bohara v. Backus Hosp. Med. Benefit Plan, 390 F. Supp. 2d 957 (C.D. Cal. 2005) ............................................................................................................................ 14 Brackett v. Hilton Hotels Corp., 619 F. Supp. 2d 810 (N.D. Cal. 2008) ............................................................................................................................................. 17 23 Brockey v. Moore, 107 Cal. App. 4th 86 (2003) .................................................................................... 16 24 Brody v. Am. Med. Ass’n, 337 F. Supp. 611 (S.D.N.Y. 1971) ............................................................... 22 25 26 Buckland v. Threshold Enterprises, Ltd., 155 Cal. App. 4th 798 (2007) ............................................................................................................................................ 16 27 28 Church & Dwight v. Mayer Labs., Inc., 2010 U.S. Dist. LEXIS 103939 (D.N.J. Sept. 28, 2010)..................................................................................................... 12 ii IN RE FERRERO, NO. 3:11-CV-00205-H-CAB PLAINTIFFS’ OPPOSITION TO FERRERO’S MOTION FOR TRANSFER OF VENUE REDACTED VERSION – FULL VERSION FILED UNDER SEAL 1 Colgan v. Leatherman Tool Group, Inc., 135 Cal. App. 4th 663 (2006) ............................................................................................................................................ 16 2 3 Committee on Children’s Television, Inc. v. General Foods Corp., 35 Cal. 3d 197 (1983) ................................................................................................................... 16 4 5 6 7 8 9 10 11 12 13 14 15 16 Commodities Futures Trading Comm’n v. Savage, 611 F.2d 270 (9th Cir. 1979) ................................................................................................................................. 7 Continental Airlines, Inc. v. American Airlines, Inc., 805 F. Supp. 1392 (S.D. Tex. 1992) ................................................................................................................... 17 Costco Wholesale Corp. v. Liberty Mut. Ins. Co., 472 F. Supp. 2d 1183 (S.D. Cal. 2007) ................................................................................................................... 18 Ctr. for Biological Diversity v. Kempthorne, 2008 U.S. Dist. LEXIS 84978 (N.D. Cal. Oct. 10, 2008)............................................................................... 7, 9, 21 Ctr. for Biological Diversity v. Lubchenco, 2009 U.S. Dist. LEXIS 119794 (N.D. Cal. Nov. 30, 2009) ............................................................................................ 8, 19 Ctr. for Food Safety v. Vilsack, 2011 U.S. Dist. LEXIS 31688 (N.D. Cal. Mar. 17, 2011) ........................................................................................... 14, 19, 21, 24 Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834 (9th Cir. 1986) .............................................................................................................................. 6, 7, 17 17 18 Dilmore v. Alion Sci. & Tech. Corp., 2011 U.S. Dist. LEXIS 43244 (W.D. Pa. Apr. 21, 2011) .................................................................................................. 12, 15, 17 19 20 DPIX, LLC v. Am. Guar. & Liab. Ins. Co., 2011 U.S. Dist. LEXIS 38130 (N.D. Cal. Mar. 30, 2011) ............................................................................................ 17, 19 21 22 Ellis v. Costco Wholesale Corp., 372 F. Supp. 2d 530 (N.D. Cal 2005) ............................................................................................................................................. 22 23 24 25 26 27 28 Fabus Corp. v. Asiana Express Corp., 2001 U.S. Dist. LEXIS 2568 (N.D. Cal. Mar. 5, 2001) ........................................................................................................ 8 Fellus v. Sterne, Agee & Leach, Inc., 2011 U.S. Dist. LEXIS 33704 (S.D.N.Y. Mar. 29, 2011) .................................................................................................. 13 Florens Container v. Cho Yang Shipping, 245 F. Supp. 2d 1086 (N.D. Cal. 2002) ............................................................................................................................ 14 iii IN RE FERRERO, NO. 3:11-CV-00205-H-CAB PLAINTIFFS’ OPPOSITION TO FERRERO’S MOTION FOR TRANSFER OF VENUE REDACTED VERSION – FULL VERSION FILED UNDER SEAL 1 Gatdula v. CRST Int’l, Inc., 2011 U.S. Dist. LEXIS 13706 (E.D. Cal. Feb. 8, 2011) ............................................................................................................................ 7 2 3 4 Getz v. Boeing Co., 547 F. Supp. 2d 1080 (N.D. Cal. 2008) ....................................................... 7, 17, 22 GlaxoSmithKline Consumer Healthcare, L.P. v. Merix Pharm. Corp., 2005 U.S. Dist. LEXIS 40007 (D.N.J. May 10, 2005) ...................................................... 10 5 6 Haley v. Cohen & Steers Capital Mgmt., 2011 U.S. Dist. LEXIS 24849 (N.D. Cal. Feb. 24, 2011) ................................................................................................. 7, 9 7 8 Hartfield v. Offshore Oil Servs., Inc., 2006 U.S. Dist. LEXIS 69469 (S.D. Tex. Sept. 14, 2006).................................................................................................. 16 9 10 Healthtrac Corp. v. Catepillar Inc., 2005 U.S. Dist. LEXIS 25272 (N.D. Cal. Oct. 26, 2005) .............................................................................................................. 12 11 12 13 In re Geopharma, Inc., 2005 U.S. Dist. LEXIS 8885 (S.D.N.Y. May 11, 2005) ................................................................................................................................. 8 In re Nat’l Presto Indus., 347 F.3d 662 (7th Cir. 2003) ........................................................................ 11 14 15 In re Tobacco II Cases, 46 Cal. 4th 298 (2009) ..................................................................................... 16 16 In re Toyota Motor Corp. Prius Hid Headlamp Prods. Liab. Litig., MDL No. 2198, 2010 U.S. Dist. LEXIS 128416 (J.P.M.L. Nov. 30, 2010) .............................................................................................................................. 20 17 18 19 20 21 22 23 In re Yahoo! Inc., 2008 U.S. Dist. LEXIS 20605 (C.D. Cal. Mar. 10, 2008) ....................................................................................................................................... 10 IP Innovation, L.L.C. v. Matsushita Elec. Indus. Co., 2005 U.S. Dist. LEXIS 11892 (N.D. Ill. June 13, 2005) ......................................................................... 20, 24 Ironworkers Local Union No. 68 & Participating Employers Health & Welfare Fund, et al. v. Amgen, Inc., 2008 U.S. Dist. LEXIS 8740 (C.D. Cal. Jan. 22, 2008) ................................................................................... 22, 23 24 25 Johansson v. Cent. Garden & Pet Co., 2010 U.S. Dist. LEXIS 130449 (N.D. Cal. Dec. 2, 2010) .................................................................................................... 6 26 27 Jonathan Brown, Inc. v. Venetian Casino Resort, LLC, 2007 WL 4532214 (N.D. Cal. Dec. 19, 2007) .............................................................................................. 17 28 iv IN RE FERRERO, NO. 3:11-CV-00205-H-CAB PLAINTIFFS’ OPPOSITION TO FERRERO’S MOTION FOR TRANSFER OF VENUE REDACTED VERSION – FULL VERSION FILED UNDER SEAL 1 Jones v. GNC Franchising, Inc., 211 F.3d 495 (9th Cir. 2000) ............................................................... 6 2 King v. Johnson Wax Assocs., Inc., 565 F. Supp. 711 (D. Md. 1983) ............................................................................................................................................. 23 3 4 Manuel v. Convergys Corp., 430 F.3d 1132 (11th Cir. 2005) ............................................................... 21 5 Meijer, Inc. v. Abbott Labs., 544 F. Supp. 2d 995 (N.D. Cal. 2008) ..................................................... 23 6 7 Metz v. U.S. Life Ins. Co., 674 F. Supp. 2d 1141 (C.D. Cal. 2009) ....................................................... 19 8 Milton v. TruePosition, Inc., 2009 WL 323036 (N.D. Cal. 2009) ........................................................... 9 9 10 NBA Props., Inc. v. Salvino, Inc., 2000 U.S. Dist. LEXIS 3799 (S.D.N.Y. Mar. 27, 2000) ...................................................................................................... passim 11 Pacesetter Sys, Inc. v. Medtronic, Inc., 678 F.2d 93 (9th Cir. 1982) ..................................................... 21 12 13 14 Parrish v. NFL Players Inc., 2007 U.S. Dist. LEXIS 43732 (N.D. Cal. June 4, 2007) ........................................................................................................................... 9 Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981) ................................................................................... 9 15 16 Ragold, Inc. v. Ferrero, U.S.A., Inc., 506 F. Supp. 117 (N.D. Ill. 1980) ............................................................................................................................................. 16 17 18 19 Reid-Ashman Mfg., Inc. v. Swanson Semiconductor Serv., L.L.C., 2006 WL 3290416 (N.D. Cal. Nov. 13, 2006).............................................................................. 14 Rivers v. Walt Disney Co., 980 F. Supp. 1358 (C.D. Cal. 1997) ........................................................... 21 20 21 Roling v. E*Trade Sec., LLC, 2010 U.S. Dist. LEXIS 123714 (N.D. Cal. Nov. 22, 2010) ........................................................................................................... 8, 9 22 23 Saleh v. Titan Corp., 361 F. Supp. 2d 1152 (S.D. Cal. 2005).................................................... 13, 14, 17 24 Schott v. Ivy Asset Mgmt. Corp., 2010 U.S. Dist. LEXIS 113674 (N.D. Cal. Oct. 19, 2010) ............................................................................................................ 6, 9 25 26 SEC v. Rose Fund, LLC, 2004 U.S. Dist. LEXIS 22491 (N.D. Cal. Jan. 9, 2004) .................................................................................................................................. 14 27 28 v IN RE FERRERO, NO. 3:11-CV-00205-H-CAB PLAINTIFFS’ OPPOSITION TO FERRERO’S MOTION FOR TRANSFER OF VENUE REDACTED VERSION – FULL VERSION FILED UNDER SEAL 1 Sec. Investor Protection Corp. v. Vigman, 764 F.2d 1309 (9th Cir. 1995) ............................................................................................................................................... 7 2 3 Sequal Techs., Inc. v. Stern, 2011 U.S. Dist. LEXIS 37007 (S.D. Cal. Apr. 4, 2011)............................................................................................................................ 7 4 5 6 Shultz v. Hyatt Vacation Mktg. Corp., 2011 U.S. Dist. LEXIS 24692 (N.D. Cal. Feb. 28, 2011) ............................................................................................ passim Sparling v. Hoffman Constr. Co., 864 F.2d 635 (9th Cir. 1988) ............................................................. 7 7 8 Stewart Org. v. Ricoh Corp., 487 U.S. 22 (1988) ................................................................................ 6, 7 9 Student Advantage, Inc. v. Int’l Student Exch. Cards, Inc., 2000 U.S. Dist. LEXIS 13138 (S.D.N.Y. Sept. 12, 2000) ............................................................... 10, 18 10 11 STX, Inc. v. Trik Stik, Inc., 708 F. Supp. 1551 (N.D. Cal. 1988) ........................................................... 16 12 Sunds Defibrator v. Durametal Corp., 1997 U.S. Dist. LEXIS 1859 (D. Del. Jan.22, 1997) .................................................................................................... 11, 14 13 14 15 16 17 18 19 20 21 Transperfect Global, Inc. v. Motionpoint Corp., 2010 U.S. Dist. LEXIS 99947 (N.D. Cal. Sept. 13, 2010) ..................................................................................... 17 Unique Prod. Solutions, Ltd. v. Otis Prods., 2010 U.S. Dist. LEXIS 137857 (N.D. Ohio Sept. 21, 2010) ............................................................................ 12, 23 Van Dusen v. Barrack, 376 U.S. 612 (1964) ......................................................................................... 20 Van Slyke v. Capital One Bank, 503 F. Supp. 2d 1353 (N.D. Cal. 2007) ............................................................................................................................................. 22 22 Vice v. Woodline USA, Inc., 2011 U.S. Dist. LEXIS 8014 (N.D. Cal. Jan. 21, 2011) ........................................................................................................................ 24 23 Williams v. Bowman, 157 F. Supp. 2d 1103 (N.D. Cal. 2001) ................................................................ 7 24 25 Yumul v. Smart Balance, Inc., 733 F. Supp. 2d 1117 (C.D. Cal. May 24, 2010) ............................................................................................................................... 16 26 27 28 vi IN RE FERRERO, NO. 3:11-CV-00205-H-CAB PLAINTIFFS’ OPPOSITION TO FERRERO’S MOTION FOR TRANSFER OF VENUE REDACTED VERSION – FULL VERSION FILED UNDER SEAL 1 Statutes 2 28 U.S.C. § 1404(a) ................................................................................................................................. 6 3 4 Rules 5 D. N.J. Civ. L.R. 101.1(c)(4) .................................................................................................................12 6 D. N.J. Ct. R. 1:21-2(2)(c)(4) .................................................................................................................12 7 S.D. Cal. Civ. L.R. 26.1(a) .....................................................................................................................11 8 9 10 Other Authorities Manual For Complex Litigation, Third (1995) ......................................................................................21 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vii IN RE FERRERO, NO. 3:11-CV-00205-H-CAB PLAINTIFFS’ OPPOSITION TO FERRERO’S MOTION FOR TRANSFER OF VENUE REDACTED VERSION – FULL VERSION FILED UNDER SEAL 1 INTRODUCTION 2 Athena Hohenberg and Laura Rude-Barbato, Plaintiffs in this consolidated action, respectfully 3 submit this memorandum in opposition to Ferrero’s motion for transfer of venue to the District of 4 New Jersey (Dkt. No. 19). In support of their Opposition, Plaintiffs also rely on the concurrently-filed 5 Declarations of Athena Hohenberg, Laura Rude-Barbato, and Jack Fitzgerald (and exhibits thereto1), 6 and the Master Consolidated Complaint (Dkt. No. 14, the “MCC”). 7 As the proponent of transfer, Ferrero had the burden of showing specific facts and information 8 justifying disturbing Plaintiffs’ choice of forum. Ferrero’s effort falls woefully short, asserting only 9 conclusory arguments that venue should “plainly” be in New Jersey (Mot. at 8:12) because, “[p]lainly, 10 the key witnesses” are there (id. at 9:15-16). Ferrero’s motion should therefore be denied even without 11 regard to Plaintiffs’ strong showing below that the applicable factors weigh against transfer. 12 13 RELEVANT FACTS A. Plaintiffs Have Substantial Contacts with this District 14 Plaintiffs brought this action in this District because they live and work in this District, and 15 because they purchased Nutella in this District in reliance on Ferrero’s deceptive labeling and 16 advertising, which Ferrero disseminated intending for them to see in this District, and which they did 17 see in this District. 18 Plaintiff Athena Hohenberg is a resident of San Diego County and has lived and worked in 19 San Diego since 1996. She currently works in Imperial Beach, California. (MCC ¶ 10; Hohenberg 20 Dec. ¶¶ 2, 4.) Ms. Hohenberg is a single mother of a three-year-old daughter, and also lives with an 21 18-year-old step daughter. She purchased Nutella from the San Diego Navy Commissary, and viewed 22 Ferrero’s Nutella television commercials in San Diego. (MCC ¶ 26; Hohenberg Dec. ¶¶ 3, 5.) 23 Plaintiff Laura Rude-Barbato is a resident of San Diego County, and has lived and worked in 24 San Diego her entire adult life. She also currently works in Imperial Beach, California. (MCC ¶ 11; 25 Rude-Barbato Dec. ¶¶ 1-2, 4.) Ms. Rude-Barbato has three children, aged 16, 13 and 7. She purchased 26 1 27 28 Pursant to the Protective Order entered in this action (Dkt. No. 32), Plaintiffs have concurrently filed an unopposed ex parte motion to seal exhibits Ferrero designated “Confidential,” including excerpts from the April 14, 2011 Deposition Transcript of Ferrero’s CEO, Bernard Kreilmann (“Kreilmann Dep. Tr.”), attached to the Fitzgerald Dec. as Exhibit B. 1 PLAINTIFFS’ OPPOSITION TO FERRERO’S MOTION FOR TRANSFER OF VENUE REDACTED VERSION – FULL VERSION FILED UNDER SEAL 1 Nutella in a Vons grocery store and a Costco, both in San Diego, and viewed Ferrero’s Nutella 2 television commercials in San Diego. (MCC ¶ 30; Rude-Barbato Dec. ¶¶ 3, 5.) 3 B. 4 5 Ferrero Has Substantial Contacts with California and this District Ferrero has been registered to do business in California since 1980 (Fitzgerald Dec. Ex. A) and, as discussed below, has substantial, ongoing contact with California. 6 1. 7 During the period of January 1, 2007 through February 2011,2 Ferrero had net sales of Nutella Ferrero Sells Significant Amounts of Nutella in California 8 of 9 largest market for Nutella, while New Jersey is much smaller, even in relation to population.3 . (PX-5, Fitzgerald Dec. Ex. C.) Ferrero’s documents show California is probably its 10 a. Ferrero’s “Food” Sales 11 12 (Kleinmann Dep. Tr. 90:12-15.) Ferrero’s documents (PX-6, Fitzgerald Dec. Ex. D) show California 13 sales of Nutella from 2007 through March 2011 (for both 13oz and 26.5oz jars) as follows: 14 52 weeks ending 12/07 15 16 52 weeks ending 12/09 52 weeks ending 12/10 52 weeks ending 3/20/11 US Sales 17 52 weeks ending 12/08 CA Sales 18 CA Sales % 19 20 While Ferrero was unable to provide similar data for New Jersey or other states, its CEO speculated 21 only that 22 might have a greater percentage of sales. (Kleinmann Dep. Tr. 94:19-95:13.) b. 23 Ferrero’s “Club” Sales Ferrero produced sales data from two “club” sources—Costco and Sam’s Club. (Fitzgerald 24 Dec. Ex. E.) The data show these major retailers sell between 25 California: 26 2 27 3 28 of their Nutella in Plaintiffs, however, allege a class period beginning January 1, 2000. (See MCC ¶ 119.) As a baseline, the 2010 census data show California currently has about 12% of the nation’s population while New Jersey has about 3%. See 2010 Census Brief, at 2, Table 1, available at http://www.census.gov/prod/cen2010/briefs/c2010br-01.pdf. 2 PLAINTIFFS’ OPPOSITION TO FERRERO’S MOTION FOR TRANSFER OF VENUE REDACTED VERSION – FULL VERSION FILED UNDER SEAL 1 2 3 Costco 26.5oz Nutella 2-Pack Unit Sales 52wks Ending 4.2.10 52wks Ending 4.1.11 52wks Ending 4.2.10 52wks Ending 4.1.11 US Sales 4 CA Sales 5 CA Sales % 6 7 8 9 Sam’s Club 13oz 3-Pack Unit Sales US Sales CA Sales 10 11 CA Sales % 12 13 c. Ferrero’s “Mass” Sales Ferrero produced sales data from two “mass” sources—WalMart and Target. (Fitzgerald Dec. 14 Ex. E.) While WalMart’s small presence in California meant it only sold between 15 Nutella in California during the past two years (while selling only about 16 California accounts for about 17 20 in New Jersey), of Target’s overall sales: Target 13oz Unit Sales Target 26.5oz Unit Sales 52wks Ending 4.2.10 18 19 of its 48wks Ending 4.1.11 US Sales CA Sales 21 22 23 24 25 26 27 NJ Sales CA Sales % NJ Sales % d. Ferrero’s Distribution to California Customers Ferrero’s documents show that from January 2007 to the present, of its Nutella shipments went to California customers. (See Fitzgerald Dec. ¶¶ 7-8.) 28 3 PLAINTIFFS’ OPPOSITION TO FERRERO’S MOTION FOR TRANSFER OF VENUE REDACTED VERSION – FULL VERSION FILED UNDER SEAL 1 2. 2 As detailed in the Master Consolidated Complaint (MCC ¶¶ 82-88), Connie Evers is a 3 registered dietitian, author of a book, now in its third edition, titled “How to Talk Nutrition to Kids,” 4 and purported children’s nutrition expert who Ferrero pays to render opinions supporting its false and 5 misleading advertising campaign. (See Kreilmann Dep. Tr. 62:4-5.) It is Evers’ purported nutritional 6 expertise and advice which underlies the entire “Nutella is a healthy breakfast for kids” campaign that 7 Plaintiffs challenge. This past March, Nutella’s nutritional spokesperson was in Orange County telling 8 California 9 http://www.feltstories.com/2011/03/nutella-party-with-registered-dietitian.html.4 Ferrero’s Nutella Spokesperson, Connie Evers, Throws “Nutella Parties” in California mothers to feed Nutella to their children for breakfast. See 10 3. 11 Plaintiffs allege Ferrero’s false and misleading advertising occurs on the labels of Nutella, in 12 television commercials, on the web, and in print advertising. All forms of those media are 13 intentionally disseminated by Ferrero in California and this District. Ferrero Disseminates False & Misleading Advertising in California 14 4. 15 Plaintiffs allege three television commercials for Nutella are false and misleading (MCC ¶¶ 16 Ferrero Works with California Vendors & Distributors 90-96). (Kreilmann Dep. Tr. 33:13-23.) Ferrero also engages 17 in Irvine California, to provide services for the sale of 18 Nutella across California (id. 24:15-26:18); Aspen Logistics, in Ontario California (with a location in 19 Temecula), to provide third-party logistics services (and previously OHL, in Riverside California, for 20 the same function, id. 14:22-17:15); and 21 Angeles (id. 61:25-62:19, 63:23-64:12, 69:17-23, 71:18-24.) , an with offices in Los 22 5. 23 Ferrero has a 15-person sales force in California (Kreilmann Dec. ¶ 4, Dkt. No. 19-2). 24 C. Ferrero Sends Employees Into California to Sell Nutella Ferrero’s Sale of Nutella in the United States is a Multinational Effort 25 While Ferrero’s headquarters are in Somerset, New Jersey, the sale of Nutella in the United 26 States involves entities scattered all over the world. For example, the Nutella sold in the United States 27 is manufactured by Ferrero Canada, Ltd., which is headquartered in Toronto, Ontario. Nutella is 28 4 See also video of the same, at http://www.youtube.com/watch?v=gocrTJN0DPw. 4 PLAINTIFFS’ OPPOSITION TO FERRERO’S MOTION FOR TRANSFER OF VENUE REDACTED VERSION – FULL VERSION FILED UNDER SEAL 1 actually produced in Brantford, Ontario. (Kreilmann Dec. ¶ 5.) Facilities there include a factory with a 2 production line, temporary warehousing, and offices related to the management of the factory. 3 Toronto facilities include administration, marketing, and sales. (Kreilmann Dep. Tr. 13:14-14:7.) 4 Ferrero U.S.A. has a contract of supply with Ferrero Canada (id. 13:10-14), and Ferrero Canada’s 5 employees were involved in making the decision to 6 (see id. 18:12-21:5, 51:10-53:17, 85:2-86:6). 7 Ferrero uses 3PLs5 to move product from Brantford to its retail customers in the United States, 8 including Aspen Warehouse, which has two locations that appear to be within 100 miles of this 9 District.6 Before using Aspen, Ferrero used OHL, which has a location that appears to be within 100 10 miles of this District.7 Ferrero uses a similar outfit in Illinois, and one in New Jersey. Ferrero also 11 relies on about 12 Tr. 24:15-26:18, 126:20-127:12.) scattered across the country, including in California. (Kreilmann Dep. 13 Ferrero also relies heavily upon its relationship with its parent, Ferrero International, in 14 making business decisions affecting the sale of Nutella in the United States. As Ferrero’s CEO 15 testified, 16 17 (Kreilmann Dep. Tr. 131:2024.) This includes a 18 (Id. 132:5-8.) As with 19 Ferrero Canada, Ferrero International was involved in the decision to 20 (Id. 132:15-133:18.) 21 // 22 // 23 // 24 25 26 27 28 5 Common abbreviation for third-party logistics provider, whose typical services include transportation, warehousing, distribution, customs brokerage, freight forwarding, trade consulting services, etc. Ferrero uses 3PLs primarily for warehousing and transportation. (See Kreilmann Dep. Tr. 15:19-16:15.) 6 1901 California Street, Redlands, CA 92374 and 43385 Business Park Drive, Temecula, CA 92590. 7 1580 Eastridge Avenue, Riverside, CA 92507. 5 PLAINTIFFS’ OPPOSITION TO FERRERO’S MOTION FOR TRANSFER OF VENUE REDACTED VERSION – FULL VERSION FILED UNDER SEAL 1 2 ARGUMENT A. Legal Standard Governing Motions to Transfer Venue Under 28 U.S.C. § 1404(a) 3 A district court “may transfer any civil action to any other district or division where it might 4 have been brought” “for the convenience of parties and witnesses” and “in the interest of justice.”8 28 5 U.S.C. § 1404(a). Under this section, the district court has discretion to adjudicate motions for transfer 6 “according to an ‘individualized, case-by-case consideration of convenience and fairness.’” Jones v. 7 GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 2000) (quoting Stewart Org. v. Ricoh Corp., 8 487 U.S. 22, 29 (1988)). “The Court must consider public factors relating to ‘the interest of justice’ 9 and private factors relating to ‘the convenience of the parties and witnesses.’” Shultz v. Hyatt Vacation 10 Mktg. Corp., 2011 U.S. Dist. LEXIS 24692, at *6 (N.D. Cal. Feb. 28, 2011) (citing Decker Coal Co. 11 v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986)). See generally Schott v. Ivy Asset 12 Mgmt. Corp., 2010 U.S. Dist. LEXIS 113674, at *9 (N.D. Cal. Oct. 19, 2010) ( 13 16 Private factors generally concern the relative impact of the venue on the private parties participating in the litigation, their access to evidence, the availability of compulsory process, “and all other practical problems that make trial of a case easy, expeditious and inexpensive.” Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947). Public factors concern relative institutional advantages, burdens on the public, and the general interest in having disputes adjudicated where there is a genuine interest in the controversy.) 17 Such factors may include (1) the location where the relevant agreements were negotiated and 18 executed,9 (2) the state that is most familiar with the governing law, (3) the plaintiff’s choice of forum, 19 (4) the respective parties’ contacts with the forum, (5) the contacts relating to the plaintiff’s cause of 20 action in the chosen forum, (6) the differences in the costs of litigation in the two forums, (7) the 21 availability of compulsory process to compel attendance of unwilling non-party witnesses (8) the ease 22 of access to sources of proof, and (9) the forum state’s relevant public policy. See Jones, 211 F.3d at 23 498-99. Other factors California courts have considered in this analysis,10 and which are relevant here, 14 15 24 26 8 Plaintiffs do not dispute this action could have been brought in the District of New Jersey. 9 25 Because no agreements are at issue, this factor is neutral. 10 27 28 “The court has broad discretion to address some of the[ Jones factors] or other factors based on the particular facts of each case.” Johansson v. Cent. Garden & Pet Co., 2010 U.S. Dist. LEXIS 130449, at *6 (N.D. Cal. Dec. 2, 2010) (citing Bibo v. Federal Express, Inc., 2007 U.S. Dist. LEXIS 78388 (N.D. Cal. Oct. 10, 2007)). 6 PLAINTIFFS’ OPPOSITION TO FERRERO’S MOTION FOR TRANSFER OF VENUE REDACTED VERSION – FULL VERSION FILED UNDER SEAL 1 include (10) the relative court congestion and time of trial in each forum,11 and (11) related pending 2 litigation.12 “No single factor is dispositive and a district court has broad discretion to adjudicate 3 motions to transfer on a case-by-case basis.” Gatdula v. CRST Int’l, Inc., 2011 U.S. Dist. LEXIS 4 13706, at *8 (E.D. Cal. Feb. 8, 2011) (citing Ctr. for Biological Diversity v. Kempthorne, 2008 U.S. 5 Dist. LEXIS 84978 (N.D. Cal. Oct. 10, 2008), in turn citing Stewart, 487 U.S. at 29; Sparling v. 6 Hoffman Constr. Co., 864 F.2d 635, 639 (9th Cir. 1988)). 7 As the moving party, Ferrero carried the burden of showing that transfer is warranted. 8 Commodities Futures Trading Comm’n v. Savage, 611 F.2d 270, 279 (9th Cir. 1979); see also Sequal 9 Techs., Inc. v. Stern, 2011 U.S. Dist. LEXIS 37007, at *8 (S.D. Cal. Apr. 4, 2011) (citation omitted) 10 (“The moving party bears the burden of establishing these factors weigh in favor of transfer.”). 11 “The general rule is that the plaintiff’s choice of forum is to be given substantial weight.” 12 Ansel Adams Publ’g Rights Trust v. PRS Media Partners, LLC, 2010 U.S. Dist. LEXIS 126791, at *6 13 (N.D. Cal. Dec. 1, 2010) (citation omitted). “The defendant must make a strong showing of 14 inconvenience to warrant upsetting the plaintiff’s choice of forum.” Decker, 805 F.2d at 843; see also 15 Shultz, 2011 U.S. Dist. LEXIS 24692, at *8 (citations omitted) (“Generally, the plaintiff’s choice of 16 forum is treated with great deference, and only significant inconvenience or unfairness will justify 17 transfer.”); Sec. Investor Protection Corp. v. Vigman, 764 F.2d 1309, 1317 (9th Cir. 1995) (“[U]nless 18 the balance of the factors is strongly in favor of the defendants, the plaintiff’s choice of forum should 19 rarely be disturbed.”); accord Getz v. Boeing Co., 547 F. Supp. 2d 1080, 1086 (N.D. Cal. 2008) (even 20 where “Plaintiffs’ choice of forum merits only minimal deference,” denying transfer where defendant 21 “fail[ed] to meet its burden of establishing that the balance of inconveniences weighs heavily in favor 22 of transfer to” another district). 23 While paying lip service to the Jones factors (Mot. at 6), Ferrero divides its argument into only 24 two subsections: “Interest of Justice” (id. at 6-8) and “Convenience of Parties and Witnesses” (id. at 8- 25 10). For its “Interest of Justice” argument, Ferrero argues only that (1) the pending Glover action, and 26 11 27 See Haley v. Cohen & Steers Capital Mgmt., 2011 U.S. Dist. LEXIS 24849, at *2 (N.D. Cal. Feb. 24, 2011) (citation omitted); Clark v. Sprint Spectrum L.P., 2010 U.S. Dist. LEXIS 136510, at *6 (N.D. Cal. Dec. 15, 2010) (citing Williams v. Bowman, 157 F. Supp. 2d 1103, 1106 (N.D. Cal. 2001)). 28 12 See A.J. Indus. v. U.S. Dist. Ct., 503 F.2d 384 (9th Cir. 1974). 7 PLAINTIFFS’ OPPOSITION TO FERRERO’S MOTION FOR TRANSFER OF VENUE REDACTED VERSION – FULL VERSION FILED UNDER SEAL 1 (2) New Jersey’s supposedly greater interest weigh in favor of transfer. (Mot. at 6-7.) For its 2 “Convenience of Parties and Witness” argument, Ferrero asserts only that (1) plaintiff’s choice of 3 forum is entitled to little deference because this is a class action and this district supposedly has little 4 connection to the operative facts, (2) relevant employees and third parties supposedly reside in New 5 Jersey, and (3) the availability of compulsory process to compel attendance of unwilling non-party 6 witnesses located in New Jersey and New York (i.e., within the New Jersey court’s “100 mile 7 bubble”) supposedly justifies transfer. (Mot. at 8-10.) Ferrero’s arguments are wrong. 8 B. 9 The Private Factors Weigh Against Transfer 1. Plaintiffs’ Choice of Forum 10 While Ferrero is correct that the plaintiff choice of forum in putative class actions is generally 11 given less weight than in other contexts (Mot. at 8), “affording less deference to representative 12 plaintiffs does not mean they are deprived of all deference in their choice of forum,” and “that choice 13 should nonetheless be honored unless defendant[] make[s] a convincing showing that venue should be 14 changed.” In re Geopharma, Inc., 2005 U.S. Dist. LEXIS 8885, at *2-5 (S.D.N.Y. May 11, 2005) 15 (emphasis added, citation and internal quotations omitted); accord Bibo, 2007 U.S. Dist. LEXIS 16 78388, at *6 (“Plaintiffs’ choice of forum remains significant in a class action where it is preferable to 17 other forums in administering the action and protecting the class.”). 18 Moreover, “in a class action, ‘[i]n judging the weight to be accorded [plaintiff’s] choice of 19 forum, consideration must be given to the extent of both [plaintiff’s] and the [defendant’s] contacts 20 with the forum, including those relating to [plaintiff’s] cause of action . . . .’” Roling v. E*Trade Sec., 21 LLC, 2010 U.S. Dist. LEXIS 123714, at *9 (N.D. Cal. Nov. 22, 2010) (alterations in original) 22 (quoting Lou v. Belzberg, 834 F.2d 730, 739 (9th Cir. 1987)); accord Ctr. for Biological Diversity v. 23 Lubchenco, 2009 U.S. Dist. LEXIS 119794, at *13 (N.D. Cal. Nov. 30, 2009) (“[D]istrict court 24 opinions have . . . stated the standard in the disjunctive: ‘The degree to which courts defer to the 25 plaintiff’s chosen venue is substantially reduced where the plaintiff’s venue choice is not its residence 26 or where the forum chosen lacks a significant connection to the activities alleged in the complaint.’” 27 (quoting Fabus Corp. v. Asiana Express Corp., 2001 U.S. Dist. LEXIS 2568, at *4 (N.D. Cal. Mar. 5, 28 2001))); Bibo, 2007 U.S. Dist. LEXIS 78388, at *6 (“The plaintiff’s choice of forum is given less 8 PLAINTIFFS’ OPPOSITION TO FERRERO’S MOTION FOR TRANSFER OF VENUE REDACTED VERSION – FULL VERSION FILED UNDER SEAL 1 weight where the plaintiff does not reside in the selected forum and the forum has no interest in the 2 alleged unlawful activity. These exceptions are not applicable here because the named plaintiffs reside 3 in this district, and the court has a clear interest in protecting such residents against unlawful . . . 4 practices.”). 5 6 7 a. The Parties’ Contacts with Forum As demonstrated above, both Plaintiffs and Ferrero have extensive contacts with this District. This factor therefore affords Plaintiffs’ choice of forum deference and so weighs against transfer. 8 Moreover, because “the reduced weight on plaintiff’s choice of forum in class actions serves 9 as a guard against the dangers of forum shopping,” Roling, 2010 U.S. Dist. LEXIS 123714, at *9, 10 where, as here, representative plaintiffs reside in their chosen forum and were subject to Ferrero’s 11 unlawful conduct in this District, their choice is entitled to deference. See id. at *10 (In putative class 12 action, “[b]ecause there is no evidence that plaintiffs engaged in forum shopping and both plaintiffs 13 and defendant have significant contacts with the Northern District of California, plaintiffs’ choice of 14 forum carries significant weight.” (emphasis added)); see also Haley, 2011 U.S. Dist. LEXIS 24849, 15 at *2 (“As plaintiff is a resident of this forum, her decision to file suit here is accorded substantial 16 weight . . . .”); Kempthorne, 2008 U.S. Dist. LEXIS 84978, at *9 (citation omitted) (“[A] plaintiff’s 17 choice of forum is ordinarily given significant weight . . . . This is especially true when the plaintiff 18 resides in the forum . . . .”); Schott, 2010 U.S. Dist. LEXIS 113674, at *10-12 (affording plaintiff’s 19 choice of forum “substantial weight” where plaintiff lived and worked in California, had his office and 20 home located in the District, and where many of the alleged interactions between him and defendant 21 occurred in California); Parrish v. NFL Players Inc., 2007 U.S. Dist. LEXIS 43732, at *16-17 (N.D. 22 Cal. June 4, 2007) (because representative plaintiffs would “bear a great deal of responsibility in 23 representing the class” if one was certified, their “choice of forum still deserves deference, and this 24 factor weighs against transfer.”); accord Piper Aircraft Co. v. Reyno, 454 U.S. 235, 244 (1981) 25 (presumption in favor of plaintiff’s choice of forum is especially strong where plaintiff brings action 26 in home state). 27 Even Ferrero concedes, as it must, that this principle weighs against transfer. (Mot. at 8 n.5 28 (citing Milton v. TruePosition, Inc., 2009 WL 323036, at *2 (N.D. Cal. 2009) (finding plaintiffs’ 9 PLAINTIFFS’ OPPOSITION TO FERRERO’S MOTION FOR TRANSFER OF VENUE REDACTED VERSION – FULL VERSION FILED UNDER SEAL 1 choice of forum should be accorded “some deference” where brought in plaintiffs’ home forum).) 2 b. Contacts Relating to Plaintiffs’ Cause of Action 3 Plaintiffs’ contacts with this District relating to their causes of action are substantial. Ferrero 4 argues Plaintiffs’ choice of forum should be disregarded because “the challenged conduct occurred in 5 New Jersey,” but cites for that proposition only a single inapposite case expressly limited to securities 6 actions, see In re Yahoo! Inc., 2008 U.S. Dist. LEXIS 20605, at *11 (C.D. Cal. Mar. 10, 2008) 7 (“Because this is a securities fraud action, . . . .”). And, Ferrero provides no analysis. (See Mot. at 9:4- 8 8.) 9 At issue in Yahoo were allegedly false and misleading public statements defendants made 10 regarding Yahoo!’s business model, financial results, continued sales and earnings growth, acquisition 11 of another company, and more. Id., at *2. Several courts have recognized that is dissimilar to the 12 situation here, where Plaintiffs were exposed to Ferrero’s false and misleading advertising in this 13 forum, which weighs against transfer. See GlaxoSmithKline Consumer Healthcare, L.P. v. Merix 14 Pharm. Corp., 2005 U.S. Dist. LEXIS 40007, at *18 (D.N.J. May 10, 2005) (Where 4.5% of 15 defendant’s sales occurred in district, retailers in district carried and displayed defendant’s product, 16 and defendant directed radio and television advertisements at listeners in the district, “[t]hese contacts 17 with New Jersey show that the underlying false advertising dispute has a connection to New Jersey,” 18 which “weigh[s] in favor of keeping the action in New Jersey.”); Student Advantage, Inc. v. Int’l 19 Student Exch. Cards, Inc., 2000 U.S. Dist. LEXIS 13138, at *21-22 (S.D.N.Y. Sept. 12, 2000) (“ISEC 20 makes false statements and competes unfairly in selling its discount cards in this District via the 21 internet and through businesses located here. The locus of operative facts is thus in this District, even 22 if ISEC’s principal place of business is elsewhere or ISEC sells its discount cards elsewhere.”); NBA 23 Props., Inc. v. Salvino, Inc., 2000 U.S. Dist. LEXIS 3799, at *11 (S.D.N.Y. Mar. 27, 2000) ( 24 25 26 27 Here, Plush Toys have been sold in this District through the medium of defendant’s Internet site and, allegedly, through the medium of New York dealers and distributors who are part of the defendant’s national network. Consequently, regardless of where the Plush Toys were manufactured, where defendant’s business location is, or where else the Plush Toys have been sold, the locus of the operative events in the instant action is New York.). 28 10 PLAINTIFFS’ OPPOSITION TO FERRERO’S MOTION FOR TRANSFER OF VENUE REDACTED VERSION – FULL VERSION FILED UNDER SEAL 1 2. 2 While Ferrero’s headquarters are in the District of New Jersey so that litigating there is 3 unquestionably more convenient to Ferrero, that alone cannot justify transfer because it would only 4 shift the inconvenience—and disproportionately at that—onto Plaintiffs. See In re Nat’l Presto Indus., 5 347 F.3d 662, 665 (7th Cir. 2003) (“When plaintiff and defendant are in different states there is no 6 choice of forum that will avoid imposing inconvenience; and when the inconvenience of the 7 alternative venues is comparable there is no basis for a change of venue; the tie is awarded to the 8 plaintiff . . . .”); Sunds Defibrator v. Durametal Corp., 1997 U.S. Dist. LEXIS 1859, at *12-13 (D. 9 Del. Jan.22, 1997) (citation omitted, emphases in original) ( Convenience of the Parties 12 As to the overall respective convenience of the parties, the defendant has a slight edge, but this slight tip of the balance of convenience stems not from evaluation of the transfer criteria, but from the fact that it is almost always more convenient for a defendant to litigate in its home district. That advantage, in and of itself without more is insufficient to tip the balance in favor of depriving a plaintiff of its choice of forum.). 13 In addition, Ferrero has provided no basis for believing litigating in the Southern District of 14 California actually is inconvenient. To the contrary, Ferrero hired California attorneys with offices in 15 this District13 to represent it in both this litigation and Glover. Thus for hearings, depositions, in- 16 person meet-and-confers (see S.D. Cal. Civ. L.R. 26.1(a) (“If counsel have offices in the same county, 17 they are to meet in person.”)), and other attorney-driven litigation, this District should be more 18 convenient to Ferrero than New Jersey. Moreover, this forum is demonstrably convenient to Ferrero, 19 because it has voluntarily litigated in California before. See Huang, et al. v. Ferrero U.S.A., Inc., et 20 al., No. 3:98-cv-00795-FMS (N.D. Cal. Filed Mar. 2, 1998).14 “Given that Defendant has not 21 described any real inconvenience that would result for the parties if the motion is denied, . . . this 22 factor does not weigh in favor of transfer.” Bibo, 2007 U.S. Dist. LEXIS 78388, at *7-8. 10 11 23 a. Differences in Costs of Litigation 24 Ferrero does not address this factor, which weighs heavily against transfer. While litigating in 25 either forum would increase the travel costs of the distant party, transfer to New Jersey would impose 26 27 13 14 28 See http://www.wsgr.com/WSGR/Display.aspx?SectionName=locations/loc_sandiego.htm. Ferrero did not apparently seek to transfer this action though other defendants did, see Dkt. No. 18 (Ferrero U.S.A.’ s Motion to Dismiss) & 19 (co-defendants’ Motion to, inter alia, Transfer Venue). 11 PLAINTIFFS’ OPPOSITION TO FERRERO’S MOTION FOR TRANSFER OF VENUE REDACTED VERSION – FULL VERSION FILED UNDER SEAL 1 a substantial additional cost on Plaintiffs not imposed on Ferrero—the expense of hiring local counsel, 2 which New Jersey’s Local Rules require but California’s do not. 3 “Only an attorney at law of this Court may file papers, enter appearances for parties, sign 4 stipulations, or sign and receive payments on judgments, decrees or orders.” D. N.J. Civ. L.R. 5 101.1(c)(4). New Jersey also requires that any attorney admitted pro hac vice shall, “have all 6 pleadings, briefs and other papers filed with the court signed by an attorney of record authorized to 7 practice in this State, who shall be held responsible for them and for the conduct of the cause and of 8 the admitted attorney therein.” D. N.J. Ct. R. 1:21-2(2)(c)(4). These requirements impose substantial 9 responsibility on New Jersey local counsel. (See Fitzgerald Dec. ¶¶ 12-15 & Exs. G-H.) 10 A conservative estimate places the additional cost imposed upon Plaintiff by transfer to New 11 Jersey—solely due to the hiring of local counsel—at about $100,000 through trial. (See Fitzgerald 12 Dec. ¶¶ 16-18.) By contrast, Ferrero’s California lawyers have already been admitted pro hac vice in 13 the New Jersey Glover action, sponsored by a member of the firm’s New York office admitted in New 14 Jersey. (See Glover Dkt. No. 8.) Thus, New Jersey’s requirement for local counsel does not increase 15 Ferrero’s costs at all. See Unique Prod. Solutions, Ltd. v. Otis Prods., 2010 U.S. Dist. LEXIS 137857, 16 at *23-24 (N.D. Ohio Sept. 21, 2010) (Denying transfer where, “[i]f this case were transferred . . . , 17 Unique would likely need to obtain local counsel in and travel to New York on several occasions, 18 whereas Defendant has already incurred the costs of obtaining local counsel in this District.”) 19 Moreover, even if litigating in California increased Ferrero’s expenses, “corporations are 20 better-equipped than individuals to absorb increased litigation costs.” Shultz, 2011 U.S. Dist. LEXIS 21 24692, at *17 (citing Healthtrac Corp. v. Catepillar Inc., 2005 U.S. Dist. LEXIS 25272, at *12-13 22 (N.D. Cal. Oct. 26, 2005)); see also Dilmore v. Alion Sci. & Tech. Corp., 2011 U.S. Dist. LEXIS 23 43244, at *24-25 (W.D. Pa. Apr. 21, 2011) (where defendant had 2010 sales exceeding $800 million 24 and individual plaintiff was unemployed, relative financial condition of the parties favored 25 maintaining action in plaintiff’s chosen forum); Church & Dwight v. Mayer Labs., Inc., 2010 U.S. 26 Dist. LEXIS 103939, at *31-32 (D.N.J. Sept. 28, 2010) (“[W]hile both parties would incur financial 27 burden by litigating in a form outside its home state, on balance, this factor tips slightly in favor of 28 Mayer in light of its smaller size and fewer resources.”); Fellus v. Sterne, Agee & Leach, Inc., 2011 12 PLAINTIFFS’ OPPOSITION TO FERRERO’S MOTION FOR TRANSFER OF VENUE REDACTED VERSION – FULL VERSION FILED UNDER SEAL 1 U.S. Dist. LEXIS 33704, at *12 (S.D.N.Y. Mar. 29, 2011) (“The relative means of the parties also 2 weighs against transfer because Fellus is an individual whereas SAL is a corporation.”); Unique Prod. 3 Solutions, 2010 U.S. Dist. LEXIS 137857, at *14, 23-24 (citation omitted) ( 4 5 6 Defendant is a large manufacturer of consumer products distributed throughout the country which is asking this Court to give significant weight to its own conveniences at Unique’s expense, after allegedly violating a federal statute for at least the last four years. Therefore, due to the unproportionate burden to be placed upon Unique if this lawsuit is transferred . . . , this factor also weighs heavily in favor of denying Defendant’s Motion. 7 8 9 10 11 12 13 * * * Defendant, a “high volume manufacturer of consumer products” with a nationwide distribution chain, is better suited than Unique, a qui tam relator attempting to protect the public . . . to bear the costs of defending this cause of action in this District, particularly because it is Defendant’s actions which gave rise to this suit. . . . In conclusion, Defendant’s Motion is based solely on one premise—that transferring this case . . . would be more convenient for the Defendant. Defendant’s failure to show more than a mere shift in conveniences to justify a transfer of venue . . . support denial of Defendant’s Motion.). b. The Substantial Inconvenience to Plaintiffs if Forced to Litigate in New Jersey 14 In addition to the expense they will incur, transfer presents a number of difficulties for 15 Plaintiffs. Ms. Hohenberg’s 3-year-old daughter has a medical condition and is currently undergoing 16 medical testing, diagnostics and evaluation to determine the cause of an apparent disability, and is also 17 involved in speech therapy. Ms. Hohenberg arranges her daughter’s appointments and care with 18 various health care providers and a speech therapist, and attends about 90% of those appointments, 19 ensuring that her daughter has transportation for the times she cannot get time off work. Having to 20 litigate in New Jersey would mean spending time away from her daughter and losing income during 21 whatever period she is in New Jersey to testify at deposition or trial, or appear for mediation or 22 hearings, which would probably preclude Ms. Hohenberg from further participating in this lawsuit. 23 (Hohenberg Dec. ¶¶ 5-6.) 24 Ms. Rude-Barbato lives with and cares for her three youngest children, aged 16, 13, and 7, and 25 her elderly, disabled mother. All three of Plaintiff’s children are involved in extracurricular activities 26 and sports programs, and rely on Plaintiff for transportation. Plaintiff’s mother suffers from back and 27 knee problems, causing her limited mobility, and suffers from psychological conditions that require 28 medication and treatment. As such, she relies completely on Ms. Rude-Barbato for her care and well13 PLAINTIFFS’ OPPOSITION TO FERRERO’S MOTION FOR TRANSFER OF VENUE REDACTED VERSION – FULL VERSION FILED UNDER SEAL 1 being. Having to litigate in New Jersey would mean, for Ms. Rude-Barbato, facing practical and 2 financial difficulty, including finding and paying for babysitting and transportation for all three 3 children, and specialized in-home care for her mother, during whatever period she is in New Jersey to 4 testify at deposition or trial, or appear for mediation or hearings. (Rude-Barbato Dec. ¶¶ 5-8.) 5 3. 6 “The relative convenience to the witnesses is often recognized as the most important factor to 7 be considered in ruling on a motion under § 1404(a).” Saleh v. Titan Corp., 361 F. Supp. 2d 1152, 8 1160 (S.D. Cal. 2005) (quotation omitted). To carry its burden, a party moving for transfer on the 9 basis of witness convenience “must identify potential witnesses by name and describe their 10 testimony.” Id., at 1161-65. Moreover, “[i]n determining whether this factor weighs in favor of 11 transfer, the court must consider not simply how many witnesses each side has and the location of 12 each, but, rather, the court must consider the importance of the witnesses.” Id. at 1160-61. See also 13 Bohara v. Backus Hosp. Med. Benefit Plan, 390 F. Supp. 2d 957, 963 (C.D. Cal. 2005) (citations 14 omitted) (“[I]f the transfer is for the convenience of witnesses, defendant must name the witnesses it 15 wishes to call, the anticipated areas of their testimony and its relevance, and the reasons why the 16 present forum would present a hardship to them.”); Ctr. for Food Safety v. Vilsack, 2011 U.S. Dist. 17 LEXIS 31688, at *18 (N.D. Cal. Mar. 17, 2011) (“As moving party, Federal Defendants are ‘obligated 18 to identify the key witnesses to be called and to present a generalized statement of what their 19 testimony would include.’” (quoting Florens Container v. Cho Yang Shipping, 245 F. Supp. 2d 1086, 20 1093 (N.D. Cal. 2002))); Reid-Ashman Mfg., Inc. v. Swanson Semiconductor Serv., L.L.C., 2006 WL 21 3290416, at *7 (N.D. Cal. Nov. 13, 2006) (“To demonstrate an inconvenience to witnesses, the 22 moving party must identify relevant witnesses, state their location and describe their testimony and its 23 relevance.”); SEC v. Rose Fund, LLC, 2004 U.S. Dist. LEXIS 22491, at *9 (N.D. Cal. Jan. 9, 2004) 24 (same); ADS Security L.P. v. Advanced Detection Security Servs., Inc., 2010 U.S. Dist. LEXIS 27903, 25 at *11 (W.D. Tex. Mar. 23, 2010) (“A party seeking a transfer of venue must do more than make 26 general allegations that key witnesses are unavailable or are inconveniently located . . . . Rather, the 27 moving party must identify specific witnesses and outline the substance of their testimony.”); NBA 28 Props, 2000 U.S. Dist. LEXIS 3799, at *14 (citations omitted) (“A party seeking transfer based on the Convenience of Witnesses & Access to Evidence 14 PLAINTIFFS’ OPPOSITION TO FERRERO’S MOTION FOR TRANSFER OF VENUE REDACTED VERSION – FULL VERSION FILED UNDER SEAL 1 convenience of the witnesses must provide the court with a specific list of probable witnesses who 2 will be inconvenienced by the current forum and a general statement of what the witnesses’ testimony 3 will cover.”). Accord Sunds, 1997 U.S. Dist. LEXIS 1859, at *10-11 (“Because of the lack of 4 specificity as to these witnesses’ important to Durametal’s case and their availability, the Court is not 5 persuaded the possibility they may not attend trial is sufficient to dip the balance in favor of a 6 transfer.”). 7 Far from meeting its burden, Ferrero’s motion is devoid of any specifics, instead only asserting 8 in conclusory fashion that, “[p]lainly, the key witnesses in this action are located in New Jersey (or 9 elsewhere on the east coast) while none (besides plaintiffs themselves) are located in California.” 10 (Mot. at 9.) Ferrero fails to identify a single relevant witness by name, much less state their location 11 and describe their testimony and its relevance, or why this forum is inconvenient for them. Instead, 12 relying on the Declaration of Bernard Kreilmann (Dkt. No. 19-2), Ferrero asserts only that 13 “employees responsible for marketing, advertising and labeling the Nutella product, work at the 14 Company’s New Jersey Headquarters,” while its “third-party vendors used in connection with the 15 labeling, marketing and advertising of Nutella are primarily located in New Jersey and New York, 16 including Ferrero U.S.A.’s advertising agency, media planning & buying agency, and agency used to 17 design its labels.” (Kreilmann Dec. ¶¶ 3, 6.15). These conclusory arguments fall short. See Affymetrix, 18 Inc. v. Synteni, Inc., 28 F. Supp. 2d 192, 205 (D. Del. 1998) ( 19 [W]ith respect to numerous “unnamed” individuals possibly residing in Silicon Valley who might possess some knowledge about . . . facts giving rise to this lawsuit, the Court affords them no weight in its “balance of convenience” analysis. Given the complete lack of specificity with which these witnesses were identified and the absence of “adequate information with respect to the content and materiality” of their testimony, the Court has no choice but to discount them in its weighing test. (citation omitted)). 20 21 22 23 Dilmore, 2011 U.S. Dist. LEXIS 43244, at *28 (“[S]ince Defendants bear the burden of showing that 24 inconvenience would make non-party witnesses unavailable for trial and because the Court finds that 25 they have not done so, this factor weighs in favor of Plaintiff.”); NBA Props, 2000 U.S. Dist. LEXIS 26 3799, at *15 (internal citation omitted) (“Defendant identifies its party witnesses simply as witnesses 27 28 15 Ferrero also asserts without specifics that “[a]lthough some vendors have offices elsewhere, . . . Ferrero U.S.A.’s contacts within those companies are located in New Jersey and New York.” 15 PLAINTIFFS’ OPPOSITION TO FERRERO’S MOTION FOR TRANSFER OF VENUE REDACTED VERSION – FULL VERSION FILED UNDER SEAL 1 ‘associated with [defendant]’ who reside in California. Because defendant has failed to satisfy its 2 burden of specifically identifying the witnesses who will be inconvenienced, defendant’s motion to 3 transfer should be denied.” (alteration in original)). 4 In addition, while such conclusory assertions fail as a matter of law to demonstrate witness 5 inconvenience warranting transfer, they also ignore the nature of this false advertising case, where, “it 6 is apparent that the majority of witnesses will not be the occurrence-type witnesses suggested by the 7 defendants, but rather will be expert witnesses who testify as to the allegedly . . . misleading 8 commercials and as to the proof of damages.”16 Ragold, Inc. v. Ferrero, U.S.A., Inc., 506 F. Supp. 9 117, 121 (N.D. Ill. 1980) (denying Ferrero’s motion to transfer venue). 10 Plaintiffs’ claims only require them to show that the challenged statements were likely to 11 deceive the public under the reasonable consumer standard. See Yumul v. Smart Balance, Inc., 733 F. 12 Supp. 2d 1117, 1125 (C.D. Cal. May 24, 2010) (citing In re Tobacco II Cases, 46 Cal. 4th 298, 312 13 (2009) (“A [common law] fraud deception must be actually false, known to be false by the perpetrator 14 and reasonably relied upon by a victim who incurs damages. None of these elements are required to 15 state a claim for injunctive relief under the UCL” (internal quotations and citation omitted)); Buckland 16 v. Threshold Enterprises, Ltd., 155 Cal. App. 4th 798, 801 (2007) (“To state a cause of action under 17 [the CLRA], it is necessary only to show that ‘members of the public are likely to be deceived.’ [ ] 18 Allegations of actual deception, reasonable reliance, and damage, are unnecessary,” quoting 19 Committee on Children’s Television, Inc. v. General Foods Corp., 35 Cal. 3d 197, 211 (1983) 20 (quotation omitted)); Colgan v. Leatherman Tool Group, Inc., 135 Cal. App. 4th 663, 682 (2006) 21 (same standard applies to FAL)). 22 23 Indeed, “the primary evidence” in a California law false advertising case such as this “is the advertising.” Brockey v. Moore, 107 Cal. App. 4th 86, 100 (2003). 24 a. 25 Convenience of the Party Witnesses In addition, Ferrero’s assertion that litigating in this forum would be inconvenient to its 26 16 27 28 Plaintiffs in this case have already retained a nutrition expert and a survey expert, Dr. Nathan D. Wong, of UC-Irvine and UCLA, and have consulted a possible survey and statistical evidence expert. Plaintiffs expect these experts, as well as a possible damages expert, to be their most important and primary trial witnesses. 16 PLAINTIFFS’ OPPOSITION TO FERRERO’S MOTION FOR TRANSFER OF VENUE REDACTED VERSION – FULL VERSION FILED UNDER SEAL 1 employees does not weigh in favor of transfer because party witnesses “can be compelled to testify 2 regardless of the forum in which the lawsuit is ultimately litigated.” Allstar Mktg. Group, LLC v. Your 3 Store Online, LLC, 666 F. Supp. 2d 1109, 1132 (C.D. Cal. 2009) (citing, inter alia, Applied 4 Elastomerics, Inc. v. Z-Man Fishing Prods., Inc., 2006 U.S. Dist. LEXIS 75339 (N.D. Cal. Oct. 6, 5 2006); STX, Inc. v. Trik Stik, Inc., 708 F. Supp. 1551, 1556 (N.D. Cal. 1988) (courts should “discount 6 inconvenience to [a] party’s witnesses when they are employees who can be compelled to testify”); 7 Hartfield v. Offshore Oil Servs., Inc., 2006 U.S. Dist. LEXIS 69469 (S.D. Tex. Sept. 14, 2006) (“The 8 Court reiterates that the convenience of key witnesses who are employees of the defendant requesting 9 transfer is ‘entitled to less weight because that party will be able to compel their testimony at trial.’” 10 (quoting Continental Airlines, Inc. v. American Airlines, Inc., 805 F. Supp. 1392, 1397 (S.D. Tex. 11 1992))); see also Jonathan Brown, Inc. v. Venetian Casino Resort, LLC, 2007 WL 4532214, at *6 12 (N.D. Cal. Dec. 19, 2007); Transperfect Global, Inc. v. Motionpoint Corp., 2010 U.S. Dist. LEXIS 13 99947, at *9 (N.D. Cal. Sept. 13, 2010) (citation omitted) (“The Court . . . discounts inconvenience to 14 the parties’ employees, whom the parties can compel to testify.”); Getz, 547 F. Supp. 2d at 1084 15 (same); Dilmore, 2011 U.S. Dist. LEXIS 43244, at *26 (citation omitted) (“[T]he convenience of the 16 witnesses employed by Defendant is not to be weighted in Defendant’s favor.”). 17 Moreover, while it is unclear whether the testimony of many fact-based Ferrero witnesses will 18 be necessary at trial, Plaintiffs’ testimony is necessary to establish the foundation for their claims. But 19 “[t]ransfer is not appropriate if it simply shifts the inconvenience from one party to another.” Shultz, 20 2011 U.S. Dist. LEXIS 24692, at *17-18 (citing Decker, 805 F.2d at 843). 21 To the extent litigating in this forum is inconvenient to Ferrero’s employees, however, 22 Plaintiffs’ counsel will mitigate any inconvenience by traveling to New Jersey to depose them if their 23 testimony is necessary and, in fact, have already done so. (Fitzgerald Dec. ¶ 19.) See DPIX, LLC v. 24 Am. Guar. & Liab. Ins. Co., 2011 U.S. Dist. LEXIS 38130, at *9 (N.D. Cal. Mar. 30, 2011) (denying 25 transfer where plaintiff agreed to travel to location of fact witnesses residing outside district). 26 27 28 b. Convenience of Non-Party Witnesses and Availability of Compulsory Process to Compel Them if Unwilling to Testify Convenience of non-party witnesses is a more important factor than the convenience of the 17 PLAINTIFFS’ OPPOSITION TO FERRERO’S MOTION FOR TRANSFER OF VENUE REDACTED VERSION – FULL VERSION FILED UNDER SEAL 1 parties. Saleh., 361 F. Supp. 2d at 1160; see also Transperfect Global, 2010 U.S. Dist. LEXIS 99947, 2 at *8 (“The convenience of witnesses includes ‘a separate but related concern, the availability of 3 compulsory process to bring unwilling witnesses live before the jury.’” (quoting Brackett v. Hilton 4 Hotels Corp., 619 F. Supp. 2d 810, 820 (N.D. Cal. 2008))). 5 Ferrero has not shown the availability of compulsory process to compel attendance of 6 unwilling non-party witnesses favors transfer to New Jersey, because Ferrero has failed to identify 7 even a single witness, much less explained why there is a concern that specific witness’ testimony 8 may need to be compelled. See, e.g., NBA Props, 2000 U.S. Dist. LEXIS 3799, at *25 (citations 9 omitted) (factor weighed against transfer where “defendant fails to provide any affidavits from its 10 witnesses stating that the witnesses will not voluntarily appear absent transfer”); Student Advantage, 11 2000 U.S. Dist. LEXIS 13138, at *23 (“Neither party identifies any witnesses that it believes will 12 need to be compelled to testify in this action. Accordingly, the Court can make no judgment as to 13 whether process to compel the attendance of unwilling witnesses is more readily available here or in 14 Arizona.”). In addition, as with Ferrero’s employees, Plaintiffs’ counsel will travel to the location of 15 third-party witnesses for deposition, and will minimize inconvenience to them by limiting the third- 16 party witnesses it calls at trial to only those witnesses that are crucial to Plaintiffs’ case. (Fitzgerald 17 Dec. ¶ 19.) 18 Moreover, as Plaintiffs previously argued, the existence of fact-based witnesses in a California 19 false advertising action is of relatively little importance, except with respect to punitive damages 20 (since those witnesses may shed a light on Ferrero’s intentions or knowledge, which is not an element 21 of Plaintiffs’ UCL, FAL, and CLRA injunctive relief, restitution and damages claims). Expert 22 witnesses are really crucial here, and their convenience is not a factor in the transfer analysis. See, 23 e.g., Costco Wholesale Corp. v. Liberty Mut. Ins. Co., 472 F. Supp. 2d 1183, 1195 (S.D. Cal. 2007) 24 (“[T]he convenience of expert witnesses carries little or no weight.”) If the Court disregards the 25 convenience of fact-based witnesses as Plaintiffs urge, this factor presents no basis for disturbing 26 Plaintiffs’ choice of forum, and so it weighs against transfer. 27 To the extent the Court does wish to consider possible third-party witnesses, however—in 28 contrast to Ferrero’s conclusory assertions that “key” third-party witnesses are within the District of 18 PLAINTIFFS’ OPPOSITION TO FERRERO’S MOTION FOR TRANSFER OF VENUE REDACTED VERSION – FULL VERSION FILED UNDER SEAL 1 New Jersey’s subpoena power (Mot. at 9-10)—Plaintiffs offer a detailed table showing all potential 2 third-party witness of whom they are currently aware, their potential testimony and its relevance, and 3 the source or basis for that knowledge. (Fitzgerald Dec. ¶ 20 & Ex. J.) 4 Some caveats: Most of this comes from the deposition of Bernard Kreilmann, who Ferrero 5 designated on venue issues pursuant to Rule 30(b)(6). Ferrero has not yet served its initial disclosures, 6 having finally agreed to schedule a Rule 26(f) conference this past Friday, April 29. Thus, Plaintiffs 7 are unsure (a) what testimony each third-party witnesses may offer, (b) of that testimony, what will be 8 necessary at trial, (c) of the testimony necessary for trial, which is most crucial, and (d) of the third- 9 party witnesses who are to provide that crucial testimony, which are unwilling to attend trial in New 10 Jersey or San Diego. 11 Plaintiffs’ list of third-party witnesses shows nine individuals and eight entities. Of the nine 12 individuals, Connie Evers is clearly the most important because her opinions form the basis for 13 Ferrero’s challenged advertising campaign, and are challenged directly in the complaint (MCC ¶¶ 82- 14 88). She lives in Beaverton, Oregon. Presumably, San Diego is more convenient to her than New 15 Jersey. 16 Of the remaining eight individuals, seven are former Ferrero U.S.A. employees, and one is an 17 employee of Ferrero International. Two live in Brantford, Ontario, Canada; one in Princeton, New 18 Jersey; one in Bogota, Columbia; one in Germany; one in Luxemburg; and the location of the 19 remaining two is unknown. Thus, the District of New Jersey Court would have subpoena power over 20 one individual, and this District none. Of the eight entities, three have locations in California within 21 this Court’s subpoena power, and another two have locations in Los Angeles. Three are within New 22 Jersey’s subpoena power. In sum, there is almost no difference between the proposed forums with 23 respect to the number of currently-identifiable potential third-party witnesses over whom subpoena 24 power could be exercised if necessary. But even if there were, Ferrero fails to show that any third- 25 party witnesses would be unwilling to testify in San Diego, or that the testimony of such unwilling 26 third-party witnesses is necessary for trial. Because this factor is neutral, it provides no basis on which 27 to disturb Plaintiffs’ choice of forum. 28 19 PLAINTIFFS’ OPPOSITION TO FERRERO’S MOTION FOR TRANSFER OF VENUE REDACTED VERSION – FULL VERSION FILED UNDER SEAL 1 c. Ease of Access to Sources of Proof 2 Ferrero does not discuss this factor, which is neutral and therefore does not justify disturbing 3 Plaintiffs’ choice of forum. In the age of electronic discovery, modern decisions frequently find this 4 factor is neutral. See, e.g., Ctr. for Food Safety, 2011 U.S. Dist. LEXIS 31688, at *20; DPIX, 2011 5 U.S. Dist. LEXIS 38130, at *9 (citing Lubchenco, 2009 U.S. Dist. LEXIS 119794, at *9 (“The 6 documentary evidence is easily transported to any venue, in this era of electronic communication.”)); 7 Metz v. U.S. Life Ins. Co., 674 F. Supp. 2d 1141 (C.D. Cal. 2009) (“[E]ase of access to documents 8 does not weigh heavily in the transfer analysis, given that advances in technology have made it easy 9 for documents to be transferred to different locations.”). Consistent with the rationale underlying those 10 decisions, Ferrero has produced over 1,200 of pages of discovery, some in electronic and some in 11 hard-copy format, in a short time, without difficulty. 12 C. The Public Factors Weigh Against Transfer 13 1. 14 “In determining whether a case should be transferred based on the interests of justice, the 15 Court can consider whether transfer will avoid duplicative litigation, affect judicial economy, and 16 limit waste of time and money.” Bibo, 2007 U.S. Dist. LEXIS 78388, at *9 (citing Van Dusen v. 17 Barrack, 376 U.S. 612, 616 (1964)). “Among factors to be considered are the speed cases proceed to 18 trial and the public interest in having a case resolved in a particular forum.” IP Innovation, L.L.C. v. 19 Matsushita Elec. Indus. Co., 2005 U.S. Dist. LEXIS 11892, at *9 (N.D. Ill. June 13, 2005) (citation 20 omitted). Interest of Justice: Efficiency and Related Pending Litigation 21 Ferrero’s argument that the pending Glover action warrants transfer in the interest of justice is 22 limited to a single conclusory sentence, which is not even accurate (there is only one action pending in 23 the District of New Jersey) (Mot. at 6:21-22 (“Here, the ‘interest of justice’ weighs in favor of transfer 24 given the pendency of substantially similar actions in the transferee forum.”).) 25 Glover is, of course, similar to this action because it is a “copycat” of this action brought by a 26 San Diego class action law firm seeking to take advantage of Plaintiffs’ choice of forum and their 27 counsels’ considerable effort investigating and filing this important pro-consumer case. While 28 Ferrero’s implicit argument is correct, that consolidation of the two pending actions would promote 20 PLAINTIFFS’ OPPOSITION TO FERRERO’S MOTION FOR TRANSFER OF VENUE REDACTED VERSION – FULL VERSION FILED UNDER SEAL 1 judicial efficiency, Ferrero “fails to note the [New Jersey] action could also be consolidated with this 2 case.”17 Applied Elastomerics, 2006 U.S. Dist. LEXIS 75339, at *18. 3 “[W]hen two identical actions are filed in courts of concurrent jurisdiction, the court which 4 first acquired jurisdiction should try the lawsuit . . . .” Pacesetter Sys, Inc. v. Medtronic, Inc., 678 F.2d 5 93, 95 (9th Cir. 1982). Similarly, “the court in the second-filed action would [normally] defer to the 6 court in the first-filed action to decide the appropriate forum.” Ctr. for Food Safety, 2011 U.S. Dist. 7 LEXIS 31688, at *15 (citing Pacesetter, 678 F.2d at 96).18 8 “The Ninth Circuit instructs that the first-to-file rule promotes efficiency and ‘should not be 9 disregarded lightly.’” Applied Elastomerics, 2006 U.S. Dist. LEXIS 75339, at *18. Moreover, 10 “[w]here two actions involving overlapping issues and parties are pending in two federal courts, there 11 is a strong presumption across the federal circuits that favors the forum of the first-filed suit under the 12 13 14 15 16 17 18 19 20 17 Although there are only two federal actions pending against Ferrero and it filed this transfer motion on March 24, on April 12, Glover filed an MDL motion seeking the exact relief this Court is set to rule on. Plaintiffs have filed a motion to intervene in Glover, in order to move for its dismissal under the first-to-file rule, which allows for dismissal or stay of substantially duplicative later-filed actions. Plaintiffs will also vigorously oppose MDL transfer to New Jersey—it will only disrupt the orderly progress of this action and increase Plaintiffs’ expense and inconvenience tremendously—and will likely succeed. See, e.g., In re Toyota Motor Corp. Prius Hid Headlamp Prods. Liab. Litig., MDL No. 2198, 2010 U.S. Dist. LEXIS 128416, at *1-2 (J.P.M.L. Nov. 30, 2010) (“Given that there are only three actions pending in two districts, and the coordinated Central District of California actions are at a more advanced stage of proceedings, movants have failed to convince us that there are sufficiently complex or numerous questions of fact shared among these actions to justify Section 1407 transfer . . . .”). Moreover, Plaintiffs’ motion to dismiss Glover may moot the MDL motion. Thus, this Court should, respectfully, not refrain from ruling on this motion. See J.P.M.L. R. 1.5 ( The pendency of a motion, order to show cause, conditional transfer order or conditional remand order before the Panel concerning transfer or remand of an action pursuant to 28 U.S.C. § 1407 does not affect or suspend orders and pretrial proceedings in the district court in which the action is pending and does not in any way limit the pretrial jurisdiction of that court.) 21 22 23 24 25 26 “In other words, a district judge should not automatically stay discovery, postpone rulings on pending motions, or generally suspend further rulings upon a parties’ motion to the MDL Panel for transfer and consolidation.” Rivers v. Walt Disney Co., 980 F. Supp. 1358, 1360 (C.D. Cal. 1997) (citing Manual For Complex Litigation, Third, at 252 (1995)). 18 27 28 In recognition of this principle, the Glover court recently entered a consent order for an extension of Ferrero’s time to answer the Glover complaint, since “[t]here are now pending two motions to transfer to this Court the two additional complaints filed in the United States District Court for the Southern District of California . . . .” (Glover Dkt. No. 16 at 1 ¶ 4.) 21 PLAINTIFFS’ OPPOSITION TO FERRERO’S MOTION FOR TRANSFER OF VENUE REDACTED VERSION – FULL VERSION FILED UNDER SEAL 1 first-filed rule.” Id. (quoting Manuel v. Convergys Corp., 430 F.3d 1132, 1135 (11th Cir. 2005); see 2 also Kempthorne, 2008 U.S. Dist. LEXIS 84978, at *12 (“[T]he preferred venue in the case of parallel 3 litigation is the district in which the first lawsuit was filed.” (citing Alltrade, Inc. v. Uniweld Prods, 4 Inc., 946 F.2d 622, 623 (9th Cir. 1991). Thus where, as here, there is another, late-filed copycat action 5 pending in another district and a party seeks transfer away from the first-filed forum based on that 6 action, “this factor weighs against transfer.” Applied Elastomerics, 2006 U.S. Dist. LEXIS 75339, at 7 *18 (emphasis added). 8 2. 9 Ferrero does not address this factor, which weighs against transfer. Plaintiffs’ causes of action 10 arise entirely under California law. “This factor strongly favors retention of the action in this district. 11 Where, as here, there are state law claims, the ‘forum’s familiarity with governing law’ supports 12 retention of the action.” NBA Props, 2000 U.S. Dist. LEXIS 3799, at *26 (citations omitted). And 13 while “other federal courts are fully capable of applying California law,” Shultz, 2011 U.S. Dist. 14 LEXIS 24692, at *11 (citation omitted), “[t]his Court is likely more familiar than the [District of New 15 Jersey] with the California laws underlying” Plaintiffs’ claims, id. Thus this factor weighs against 16 transfer. See id.; see also Getz, 547 F. Supp. 2d at 1085 (“[T]he Court finds that this factor weighs 17 against transfer. A court in the Northern District of California is more familiar with California law 18 than a court in the District of Arizona.”); accord Ironworkers Local Union No. 68 & Participating 19 Employers Health & Welfare Fund, et al. v. Amgen, Inc., 2008 U.S. Dist. LEXIS 8740, at *21 (C.D. 20 Cal. Jan. 22, 2008) (“This Court is more familiar with California’s choice-of-law rules than a New 21 Jersey court. Therefore, this factor weighs against transfer.”19). The State Most Familiar with Governing Law 22 3. 23 Ferrero assumes that because it is headquartered in New Jersey, this controversy is “localized” 24 there. (See Mot. at 7.) Ferrero is wrong, as federal courts routinely find false advertising cases 25 “localized” where a substantial portion of consumers were exposed to the challenged statements, 26 which is true of this District. See Van Slyke v. Capital One Bank, 503 F. Supp. 2d 1353, 1365 (N.D. California’s Public Policy 27 19 28 Compare Mot. at 8:2-3 (“[W]hether this case is litigated in New Jersey or California, the courts will need to decide choice of law issues.”) 22 PLAINTIFFS’ OPPOSITION TO FERRERO’S MOTION FOR TRANSFER OF VENUE REDACTED VERSION – FULL VERSION FILED UNDER SEAL 1 Cal. 2007) (denying transfer where estimated 20% of potential class members resided in California, 2 which has an interest in “preventing fraudulent practices which may have an effect both in California 3 and throughout the country” supported California’s local interest in controversy); Ellis v. Costco 4 Wholesale Corp., 372 F. Supp. 2d 530 (N.D. Cal 2005) (denying venue transfer motion where 5 Northern District of California was “home to a proportionately large segment of the putative class”); 6 Brody v. Am. Med. Ass’n, 337 F. Supp. 611, 613 (S.D.N.Y. 1971) (“Where a large percentage of class 7 members comes from or near New York, transfer to another district will be denied.”); accord 8 Berenson v. Nat’l Fin. Servs., LLC, 319 F. Supp. 2d 1, 4 (D.D.C. 2004) (transferring class action to 9 District of Massachusetts where “Massachusetts has the greatest interest in deciding the controversy” 10 because “this is a class action lawsuit, with claims arising in Massachusetts and the largest amount of 11 potential plaintiffs residing there”); King v. Johnson Wax Assocs., Inc., 565 F. Supp. 711, 719-20 (D. 12 Md. 1983) (transferring class action to the Central District of California upon finding that “should a 13 class eventually be certified, the interests of the class would seem better served by a trial in Los 14 Angeles than by one in Baltimore, as many more class members would likely reside in close 15 proximity to the courthouse”). 16 In reality, both New Jersey and this District have an interest in the matter, regardless of the 17 exact consumer distribution. The District of New Jersey has an interest because it is the site of 18 Ferrero’s headquarters, while the Southern District of California has an interest in protecting the rights 19 of the putative class and enforcing California law. See Unique, 2010 U.S. Dist. LEXIS 137857, at 20 *24-25 (“This District certainly has a local interest in protecting consumers . . . located in the District 21 who have been deceived by the Defendant’s . . . violations. Further, jurors in this case, residents of 22 this District, will be genuinely interested in learning about Defendant’s activities and adequately 23 protecting unsuspecting consumers located in the District.”) This factor is therefore neutral. See 24 Shultz, 2011 U.S. Dist. LEXIS 24692, at *23; see also Meijer, Inc. v. Abbott Labs., 544 F. Supp. 2d 25 995, 1009 (N.D. Cal. 2008) ( 26 27 28 It is true that the only apparent connection between the case and California is that California is home to a large number of . . . individuals who may be consumers . . . . However, this case has no greater connection to Illinois, except that Illinois is the site of [Defendant’s] headquarters. Illinois this has no particular interest in this case other than the generalized interest in ensuring that its citizens receive fair adjudications.). 23 PLAINTIFFS’ OPPOSITION TO FERRERO’S MOTION FOR TRANSFER OF VENUE REDACTED VERSION – FULL VERSION FILED UNDER SEAL 1 Accord Ironworkers Local, 2008 U.S. Dist. LEXIS 8740, at *21-22 (finding stronger interest in 2 resolving controversy at location of injury than location of defendant’s headquarters). 3 4. 4 Ferrero does not address this factor, which weighs against transfer. The most recent Federal 5 Court Management Statistics maintained by the Federal Judiciary20 show, for the 12-month period 6 ending September 30, 2010, that the District of New Jersey had 414 civil filings per judgeship, while 7 the Southern District of California had 241 filings per judgeship, a difference of almost 60%. In 8 addition, the District of New Jersey’s time to trial for civil cases is currently 40.6 months, whereas 9 this forum’s time to trial is 31.6 months. Thus, this factor weighs against transfer. See Vice v. 10 Woodline USA, Inc., 2011 U.S. Dist. LEXIS 8014, at *16 (N.D. Cal. Jan. 21, 2011) (citation omitted) 11 (denying motion to transfer where “[i]n this judicial district, the median time interval for cases 12 disposed of at trial is approximately twenty-four months; in the Middle District of Tennessee, it is 13 approximately twenty-eight months. Thus, this factor does not weight in favor of Defendant.”); 14 accord Ctr. for Food Safety, 2011 U.S. Dist. LEXIS 31688, at *21-22 (where time to trial was 21.5 15 months in Northern District of California and 40.1 months in District of Columbia, concluding this 16 was a “significant difference” and “the Northern District of California is less congested”); IP 17 Innovation, 2005 U.S. Dist. LEXIS, at *10 (10.5 month difference in time to trial weighed against 18 transfer). The Relative Court Congestion and Time to Trial of Each Forum 19 CONCLUSION 20 21 Plaintiffs respectfully request the Court deny Ferrero’s Motion for Transfer of Venue. Dated: May 2, 2011 22 By: /s/ Jack Fitzgerald Jack Fitzgerald Gregory S. Weston THE WESTON FIRM 23 24 25 Ronald A. Marron LAW OFFICES OF RONALD A. MARRON, APLC 26 INTERIM CLASS COUNSEL 27 20 28 http://www.uscourts.gov/Statistics/FederalCourtManagementStatistics.aspx (data sheets for District of New Jersey and Southern District of California are attached to the Fitzgerald Dec. as Exhibit K). 24 PLAINTIFFS’ OPPOSITION TO FERRERO’S MOTION FOR TRANSFER OF VENUE