Anthony Buso v. Penguin Trading, Inc. et al

Filing 33

MINUTES IN CHAMBERS - ORDER RE PLAINTIFF'S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT AND DEFENDANT'S MOTION TO DISMISS OR, IN THE ALTERNATIVE, TO TRANSFER OR STAY 16 27 by Judge Dolly M. Gee. In light of the foregoing, the Court GRANTS the MTA [Doc. # 27] and DENIES in part the MTD as moot [Doc. # 16]. The Court GRANTS the motion to transfer this case to the United States District Court for the Eastern District of New York, where Plaintiff may file his amended complaint pursuant to the proposed changes submitted to this Court. The January 5, 2017 hearing is VACATED. IT IS SO ORDERED. ( MD JS-6. Case Terminated ) (lom)

UNITED STATES DISTRICT COURT
JS-6 / TRANSFER
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

Date

CV 17-7025 DMG (KSx)

Title Anthony Buso v. Penguin Trading, Inc.

December 22, 2017
Page

1 of 10

Present: The Honorable

DOLLY M. GEE, UNITED STATES DISTRICT JUDGE

KANE TIEN
Deputy Clerk

NOT REPORTED
Court Reporter

Attorneys Present for Plaintiff(s)
None Present

Attorneys Present for Defendant(s)
None Present

Proceedings: IN CHAMBERS - ORDER RE PLAINTIFF’S MOTION FOR LEAVE TO
FILE SECOND AMENDED COMPLAINT AND DEFENDANT’S MOTION
TO DISMISS OR, IN THE ALTERNATIVE, TO TRANSFER OR STAY
[16, 27]

Plaintiff filed suit on September 22, 2017 and, nine days later, filed a First Amended
Complaint (“FAC”) due to a typographical error in the original pleading. [Doc. ## 1, 9.] The
FAC alleges causes of action under California’s Consumer Legal Remedies Act (“CLRA”), Cal.
Civ Code § 1750 et seq., in connection with the slack-fill in Defendant’s product. [Doc. # 9.]
On October 25, 2017, Defendant filed a motion to dismiss or, in the alternative, to transfer or
stay the case (“MTD”). [Doc. # 16.] On November 30, 2017, after the MTD was fully briefed,
Plaintiff filed a motion for leave to file a second amended complaint (“MTA”) that, according to
him, would cure the alleged deficiencies in the operative pleading by removing any allegations
that sound in fraud. [Doc. # 27.] Plaintiff also seeks leave to add a cause of action under
California’s Unfair Competition Law. Id. For the following reasons, the Court GRANTS the
MTA, DENIES as moot the MTD’s request for dismissal, GRANTS the MTD’s alternative
request for transfer, and DENIES as moot the MTD’s alternative request for a stay.
I.
DISCUSSION
A.

MTA

Plaintiff set a hearing on the MTA for January 5, 2017. Id. Defendant’s opposition was
therefore due no later than December 15, 2017. See C.D. Cal. L.R. 7-9 (opposition papers due at
least 21 days before the date of the motion hearing). No opposition has been filed, and the time
to do so has now passed. The MTA is therefore GRANTED for failure to oppose. See Oakley,
Inc. v. Nike, Inc., 988 F. Supp. 2d 1130, 1139 (C.D. Cal. 2013) (“[T]he Local Rules permit the
Court [to] deem failure to oppose as consent to the granting of the motion.”) (citing L.R. 7-12).
The MTD, insofar as it seeks dismissal, is accordingly DENIED as moot due to this Court’s
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Initials of Deputy Clerk KT

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

CV 17-7025 DMG (KSx)

Title Anthony Buso v. Penguin Trading, Inc.

Date

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ruling on the MTA. Plaintiff shall file an amended complaint pursuant to its proposed changes.
See Ex. 2 to Ferrell Decl. [Doc. # 27-3].
B.

MTD (Transfer)

Defendant asks this Court, as an alternative to dismissal of the complaint, to transfer the
action to the Eastern District of New York (“E.D.N.Y.”) under 28 U.S.C. section 1404(a). MTD
at 29.1
1.

Legal Standard

A district court may transfer an action to a different district court under 28 U.S.C.
§ 1404(a). Section 1404(a) permits a court to transfer an action “[f]or the convenience of parties
and witnesses” and “in the interest of justice,” so long as the action could have been filed in the
transferee district in the first instance. 28 U.S.C. § 1404(a); Sparling v. Hoffman Constr. Co.,
864 F.2d 635, 639 (9th Cir. 1988) (the district court has broad discretion to transfer a case to
another district where venue is also proper); see also Commodity Futures Trading Comm. v.
Savage, 611 F.2d 270, 279 (9th Cir. 1979) (“Weighing of factors for and against transfer
involves subtle considerations and is best left to the discretion of the trial judge”). The district
court must “adjudicate motions for transfer [of venue] according to an individualized, case-bycase consideration of convenience and fairness.” Jones v. GNC Franchising, Inc., 211 F.3d 495,
498 (9th Cir. 2000) (quoting Stewart Org. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (internal
quotes omitted)).
In deciding a motion to transfer venue, the court typically weighs a number of public and
private factors, including (1) plaintiff’s choice of forum; (2) the convenience of the parties;
(3) the convenience of the witnesses; (4) the location of books and records; (5) which forum’s
law applies; (6) the interests of justice; and (7) administrative considerations. 15 Charles A.
Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure, §§ 3841–55
(2007). In the Ninth Circuit, the following factors (known as the Jones factors) may also be
relevant in assessing a motion to transfer venue:
(1) the location where the relevant agreements were negotiated and executed,
(2) the state that is most familiar with the governing law, (3) the plaintiff’s choice
of forum, (4) the respective parties’ contacts with the forum, (5) the contacts
relating to the plaintiff’s cause of action in the chosen forum, (6) the differences
in the costs of litigation in the two forums, (7) the availability of compulsory
process to compel attendance of unwilling non-party witnesses, and (8) the ease
of access to sources of proof.

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Citations to the parties’ briefs refer to the pagination assigned by the CM/ECF docketing system.
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Initials of Deputy Clerk KT

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

CV 17-7025 DMG (KSx)

Title Anthony Buso v. Penguin Trading, Inc.

Date

December 22, 2017
Page

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Jones, 211 F.3d at 498-99. “[U]nless the balance of factors is strongly in favor of the
defendants, the plaintiff’s choice of forum should rarely be disturbed.” Secs. Investor Prot.
Corp. v. Vigman, 764 F.2d 1309, 1317 (9th Cir. 1985). “Defendant bears the burden to prove
that the transfer forum is more convenient, rather than ‘equally convenient or inconvenient.’”
Atlantique Prods., S.A. v. Ion Media Networks Inc., No. CV 12-08632 DMG (PLAx), 2013 WL
12133636, at *3 (C.D. Cal. Feb. 28, 2013).
2.

Analysis

In urging transfer here, Defendant presents three arguments: (1) less deference should be
afforded plaintiff’s choice of forum because this is a class action lawsuit and Plaintiff, as
representative, lives outside of the geographic boundaries of this District; (2) the first-to-file
presumption weighs in favor of transfer because the parties are already in the midst of litigation
in the E.D.N.Y. (the “New York Action”) on substantially similar issues;2 and (3) E.D.N.Y. is
the more convenient venue for the instant suit under the Jones factors. Plaintiff counters each
ground in opposition and presents argument on the recognized transfer factors.
a.

Plaintiff’s Choice of Forum

Plaintiff contends that Defendant’s argument on deference to the plaintiff’s choice of
forum fails because Plaintiff resides only 50 miles outside of the Central District of California’s
boundary, in San Diego County’s City of Poway (and, thus, the Southern District of California),
as opposed to approximately 3,000 miles outside of E.D.N.Y.’s boundaries. Buso Decl. at ¶ 2
[Doc. # 23-3]. While litigation in this District would be more convenient to Plaintiff than
litigation in E.D.N.Y., it is not entirely clear why Plaintiff filed suit here rather than in his home
District. The Court observes that, according to Defendant’s website, Defendant has 124 retail
stores within this District and only 39 retail stores in the Southern District of California. See
Ferrell Decl. at ¶ 14 [Doc. # 23-4]. Additionally, Plaintiff’s investigator, whose testimony is
critical to Plaintiff’s case, is a resident of this District. See Baslow Decl. at ¶¶ 1–5, 8. These
facts may serve as reasons for filing suit in this District. Opposition at 43 [Doc. # 23].
It is not self-evident why the selection of this forum constitutes forum shopping, but the
Court does take into account the fact that Plaintiff is not a resident of this forum in considering
this factor. Thus, the Court will give some weight to the Plaintiff’s choice of forum in light of
controlling authority, but the Court will not give that element substantial weight. See Atl.
Marine Constr. Co. v. U.S. Dist. Court for the W. Dist. of Tex., 134 S. Ct. 568, 581 & n.6 (2013)
(noting that “[i]n the typical case not involving a forum-selection clause, a district court
considering a § 1404(a) motion” “must . . . give some weight to the plaintiff’s choice of forum”).
This factor thus weighs against transfer, but not heavily.

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Penguin Trading, Inc. dba Fruit Bliss v. John or Jane Doe(s), 1:17-cv-04826-DLI-RLM (E.D.N.Y. 2017).
CIVIL MINUTES—GENERAL

Initials of Deputy Clerk KT

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

CV 17-7025 DMG (KSx)

Title Anthony Buso v. Penguin Trading, Inc.
b.

Date

December 22, 2017
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First-to-File Rule

To determine whether the first-to-file rule applies, courts analyze three factors:
“chronology of lawsuits, similarity of the parties, and similarity of the issues.” Kohn Law Grp.,
Inc. v. Auto Parts Mfg. Miss., Inc., 787 F.3d 1237, 1240 (9th Cir. 2015). It is undisputed that
Defendant initiated the New York Action on August 16, 2017, whereas Plaintiff filed this action
on September 22, 2017. Compare Case No. 1:17-cv-04826-DLI-RLM [Doc. # 1] (“New York
Complaint”) (filing suit against unknown plaintiffs represented by Plaintiff’s counsel and
referencing demand letters Plaintiff’s counsel sent, which Plaintiff filed as exhibits in Opposition
to the MTD),3 with [Doc. # 1 (original complaint in this action)]. Additionally, the parties in this
action are identical to the parties in the New York Action, and the parties appear to agree that the
issues in both cases are the same.
Plaintiff argues that the first-to-file doctrine should not apply in this case because the
New York Action is an anticipatory suit. Even when the first-to-file rule’s three requirements
are satisfied, application of the rule may still be inappropriate. The first-to-file rule is
discretionary, and a court may dispense with it for reasons of equity, including when the filing of
the first suit was anticipatory. Alltrade, Inc. v. Uniweld Prods., Inc., 946 F.2d 622, 628 (9th Cir.
1991); Inherent.com v. Martindale-Hubbell, 420 F. Supp. 2d 1093, 1097 (N.D. 2006). “A suit is
‘anticipatory’ for the purposes of being an exception to the first-to-file rule if the plaintiff in the
first-filed action filed suit on receipt of specific, concrete indications that a suit by defendant was
imminent.” Guthy-Renker Fitness, L.L.C. v. Icon Health & Fitness, Inc., 179 F.R.D. 264, 271
(C.D. Cal. 1998). “Such . . . suits are disfavored because they are examples of forum-shopping.”
Id. Furthermore, “‘where . . . a declaratory judgment action has been triggered by a cease and
desist letter’ that both seeks settlement and notifies the party of the possibility of litigation upon
collapse of negotiations, ‘equity militates in favor of allowing the second-filed action to proceed
to judgment rather than the first.’” Xoxide, Inc. v. Ford Motor Co., 448 F. Supp. 2d 1188, 1193
(C.D. Cal. 2006) (quoting Z-Line Designs, Inc. v. Bell’O Int’l LLC, 218 F.R.D. 663, 667 (N.D.
Cal. 2003)).
Here, Plaintiff submitted copies of correspondence between his counsel and Defendant’s
counsel that strongly indicates the New York Action is an anticipatory suit not entitled to
operation of the first-to-file rule. Most notably, on July 27, 2017, Plaintiff’s counsel sent a cease
and desist letter to Fruit Bliss’ legal department, which stated that (1) Plaintiff retained counsel
to prosecute a class action lawsuit under the CLRA, (2) Plaintiff wants to settle the claim, but
(3) Plaintiff intends to file suit in 30 days from the date of the letter absent a pre-filing resolution
to his demands. See Ex. 1 to Ferrell Decl. [Doc. # 23-5]. Thereafter, between approximately
August 10 and 15, 2017, counsel for the parties engaged in some “conciliatory” telephone and

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On October 5, 2017, Defendant filed an amended complaint that names Plaintiff as a defendant in the
New York Action, but the caption in the E.D.N.Y.’s CM/ECF system still reflects the original name.
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Initials of Deputy Clerk KT

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

CV 17-7025 DMG (KSx)

Title Anthony Buso v. Penguin Trading, Inc.

Date

December 22, 2017
Page

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email correspondence to discuss Plaintiff’s settlement demand. Ferrell Decl. at ¶¶ 7–8; see Ex. 3
to Ferrell Decl. at 3–5 (email communication) [Doc. # 23-7].
On August 16, 2017, Plaintiff’s counsel, having not heard back from the defense as to the
settlement demand, sent defense counsel an email stating that Plaintiff “plan[ned] to promptly
proceed to file the Complaint.” Ex. 3 to Ferrell Decl. at 3. That same day, defense counsel
asked that Plaintiff delay filing suit for one day because defense counsel was “working on
getting a response from [Defendant] on the money aspects.” Id.; Ferrell Decl. at ¶ 9. Plaintiff’s
counsel responded positively, stating that Plaintiff could wait another day. Ex. 3 to Ferrell Decl.
at 3.
Instead, that same day, Defendant filed the New York Action against an unnamed
plaintiff intended to be Plaintiff. See New York Complaint at ¶ 3 (describing defendant (in that
case) in connection with Plaintiff’s counsel’s written and email correspondence); New York
Action, Doc. # 15 (amended complaint naming Plaintiff as defendant). The New York Action
seeks, in part, a declaratory judgment that “[Plaintiff’s] claim of a violation of 21 C.F.R. 100.100
for impermissible slack fill and as a consequence of . . . the [California CLRA] is frivolous and
without legal basis.” New York Complaint at ¶ 13.
The next day, on August 17, 2017, defense counsel emailed Plaintiff’s counsel with a
settlement response that sought at least $8,000 from Plaintiff and mutual releases, and alerted
counsel to the suit against Plaintiff (to determine “whether [Defendant’s] packaging is legal or
not”). Ex. 3 to Ferrell Decl. [Doc. # 23-7]. Defendant’s settlement offer expired on August 18,
2017. Id.
This correspondence, as well as the New York Complaint’s allegations themselves, serve
as convincing evidence that the New York Action is an anticipatory suit. The Court will
therefore not apply the first-to-file rule in this case.
c.

Relevant Transfer Factors

Defendant last seeks transfer under the Jones factors, arguing that E.D.N.Y. has personal
jurisdiction over both parties, is more convenient to the parties and non-party witnesses, financial
considerations, and state public interests. Plaintiff presents arguments in opposition and
separately argues that additional transfer factors weigh against transfer.
i.

Personal Jurisdiction

First, Plaintiff disputes E.D.N.Y.’s personal jurisdiction over him, and it appears that he
has filed a motion to dismiss partially on that basis in the New York Action. Opposition at 44;

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CIVIL MINUTES—GENERAL

Initials of Deputy Clerk KT

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

CV 17-7025 DMG (KSx)

Title Anthony Buso v. Penguin Trading, Inc.

Date

December 22, 2017
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New York Action, Doc. # 16.4 Additionally, Plaintiff states that he has visited New York state
only twice in his lifetime. Buso Decl. at ¶ 3. Because Defendant bears the burden to prove that
transfer is appropriate yet has failed to submit evidence or argument on Plaintiff’s contacts with
E.D.N.Y., the Court will not accept Defendant’s conclusory assertion that the New York court
may properly exercise personal jurisdiction over Plaintiff.
ii.

Party Convenience and Finances

The convenience of the parties is a neutral factor. California is the more convenient
venue for Plaintiff, and his financial circumstances preclude him from traveling to New York for
depositions, hearings, meetings with New York counsel, and trial. Buso Decl. at ¶ 6. Litigation
in this forum would also benefit the putative class members, as Plaintiff seeks to certify a class
comprised solely of California residents. See FAC at ¶ 29. Defendant, on the other hand, is a
New York citizen who would be significantly inconvenienced, including financially, by litigation
in this District.
Courts in this District recognize that national corporations are better equipped than an
ordinary individual with limited financial means to adjust to the increased litigation costs
stemming from litigation in a foreign forum. See, e.g., Guingao v. Datalogix Tex. Inc., No. CV
14-02103-SVW (Ex), 2014 WL 12688862, at *2 (C.D. Cal. June 5, 2014); Hogan v. ADT, LLC,
No. CV 12-10558 DMG (FMOx), 2013 WL 12129856, at *3 (C.D. Cal. May 23, 2013); Allstar
Mktg. Grp., LLC v. Your Store Online, LLC, 666 F. Supp. 2d 1109, 1132 (C.D. Cal. 2009). In
this case, however, Defendant has submitted ample evidence that this general rule should not
apply. For example, Defendant’s President and sole shareholder, Susan Leone, states that the
company has only two employees, including her, and that travel to California would essentially
halt business operations and possibly cause Defendant to file bankruptcy. See Leone Decl. at
¶¶ 1, 6–7, 12. Additionally, Leone states that Defendant secured “low-bono” counsel in New
York but that its “low-bono” counsel in California is located in San Francisco such that litigation
in Los Angeles would increase costs. Id. at ¶ 11. While Defendant has 431 retail stores in
California alone, it earned only $34,886 “in ordinary business income” in 2016. Id. at ¶ 8; Ex. A
to Leone Decl. (2016 tax return) [Doc. # 25-3 at 6–9]. 
It is well known in this Circuit that transfer based on convenience “is not appropriate . . .
when the effect would be simply to shift the inconvenience from one party to another.” Barnes
& Noble, Inc. v. LSI Corp., 823 F. Supp. 2d 980, 994 (N.D. Cal. 2011). Although litigation in

4

The District Judge in the New York Action struck the motion to dismiss due to Plaintiff’s failure to
comply with certain page-limit requirements, but stated that it would address a briefing schedule for that motion
depending on the outcome of Plaintiff’s motion to transfer venue in that case. New York Action, Oct. 30, 2017 (no
docket number associated with text entry).
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Initials of Deputy Clerk KT

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

CV 17-7025 DMG (KSx)

Title Anthony Buso v. Penguin Trading, Inc.

Date

December 22, 2017
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this District would be a great inconvenience to Defendant, transfer would merely shift the
inconvenience to Plaintiff. The factor of party convenience is thus in equipoise.
iii.

Witness Convenience 

The convenience of non-party witnesses favors transfer. Both parties posit that they
expect to rely on non-party witnesses who are native to the competing fora. Plaintiff points to
his investigator, a resident of this District, who will testify to his first-hand measurements of the
challenged packaging’s slack-fill—testimony essential to Plaintiff’s claim.5 See Baslow Decl. at
¶¶ 1–5, 8 [Doc. # 23-13].
Defendant points to three New York residents—two packaging consultants and a
packaging designer—who contributed to Defendant’s marketing and manufacturing decisions,
and a Turkey resident who owns the manufacturing company that fills Defendant’s product
packaging. MTD at 33–34; Arneri Decl. at ¶ 5 [Doc. # 16-1]. These third parties would testify
as to the functionality of Defendant’s product slack-fill and its packaging’s size, important issues
in this case. See Reply at 35–36 [Doc. # 25]; Arneri Reply Decl. at ¶ 4 [Doc. # 25-1]. Defendant
also explains that the third-party witnesses would not be willing to travel to California on their
own expense because such travel would divert time from their own small businesses, and that the
Turkish witness regularly travels to New York on business and may be able to combine those
business trips with deposition or other necessary appearances in this case. Reply at 36; Leone
Decl. at ¶ 5. Defendant has thus shown that, under this Court’s standard for transfer based on
witness convenience, transfer is appropriate. See Rubio v. Monsanto Co., 181 F. Supp. 3d 746
(C.D. Cal. 2016) (“[T]he operative standard in this circuit is that ‘[i]f the [requested] transfer is
for the convenience of witnesses, [the] defendant must name the witnesses it wishes to call, the
anticipated area of their testimony and its relevance, and the reasons why the present forum
would present hardship to them.” (alterations in original) (quoting Bohara v. Backus Hospital
Medical Benefit Plan, 390 F.Supp.2d 957, 963 (C.D.Cal.2005))). 
Witness convenience is considered one of the most important factors in ruling on a
transfer motion brought under section 1404(a). Saleh v. Titan Corp., 361 F. Supp. 2d 1152, 1160
(C.D. Cal. 2005) “[T]he court must consider not simply how many witnesses each side has and
the location of each, but, rather, the court must consider the importance of the witnesses.” Id. at
1161. Here, Defendant has shown that it has more significant third-party witnesses who would

5

The Court rejects Defendant’s argument that this witness is a party witness by virtue of his being an
expert witness. That does not appear to be the law in this Circuit, and Defendant cites no in-Circuit authority for
such a proposition. See, e.g., United States v. Bazaarvoice, Inc., No. C 13-00133 WHO (LB), 2013 WL 3784240, at
*3 (N.D. Cal. July 18, 2013) (referring to experts as nonparty witnesses); Mavrix Photo, Inc. v. GG Digital, Inc., No.
SACV 12-435-JST (JPRx), 2012 WL 12887834, at*3 (C.D. Cal. Oct. 3, 2012) (same); Garcia v. Courtesy Ford,
Inc., No. C06-855RSL, 2006 WL 2439815, at *2 (W.D. Wash. Aug. 22, 2006) (same).
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Initials of Deputy Clerk KT

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
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Date

Title Anthony Buso v. Penguin Trading, Inc.

December 22, 2017
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be inconvenienced than Plaintiff. The Court thus concludes that this factor weighs in favor of
transfer.
iv.

Interest of Justice and Public Interest

Defendant acknowledges California’s interest in enforcing its consumer protection laws,
but contends nonetheless that state public interests weigh in favor of transfer. Defendant argues
that the “crux” of this case “lies not in California, the state where Plaintiff purports to have
purchased” the product, but in New York, “the state where [Defendant] is headquartered and
allegedly issued misrepresentations concerning” its products. MTD at 34 (quoting Hawkins v.
Gerber Prods. Co., 924 F. Supp. 2d 1208, 1216 (S.D. Cal. 2013)). Because “[t]he primary focus
of this action is the development and marketing” of Defendant’s products, “and decisions about
how such goods were to be advertised to consumers” with regard to slack fill, Defendant asserts
that the local interest in the controversy here favors transfer to New York. Id. (quoting Hawkins,
924 F. Supp. 2d at 1216).
The Court agrees. This factor thus favors transfer.
v.

Access to Proof

The location of evidence and relative ease of access to sources of proof in this case do not
favor transfer. Defendant posits that the relevant physical and documentary evidence, such as
the fruit packs and empty packaging, are located in New York. But Defendant has not shown
why these demonstrative packs cannot be easily transported to this District in light of their size.
See Baslow Decl. at ¶ 3 (packages are 5-7/8 inches wide and 7 inches long); Bohara, 390 F.
Supp. 2d at 963 (defendant “must show with particularity the location [and] difficulty of
transportation”). As for documentary evidence, Defendant “fails to adduce evidence that [its] . . .
records are so voluminous that it would be difficult to transport them to the Central District or, in
this day and age, scan them into an electronic database.” Rubio, 181 F. Supp. 3d at 764.
vi.

Power to Compel

The factor of compulsory process, an important one, favors transfer. Ravelo Monegro v.
Rosa, 211 F.3d 509, 514 (9th Cir. 2000). A district court can only subpoena non-party witnesses
within its district or within 100 miles of the district. See Fed.R.Civ.P. 45(c)(3)(B)(ii). Thus, this
Court cannot compel the appearance of any of Defendant’s third-party witnesses, and Defendant
has presented declaratory evidence that they would be unwilling to travel on their own expense.
Leone Decl. at ¶ 5. Plaintiff presents no evidence that his investigator would be unwilling or
unable to travel to E.D.N.Y.

CV-90

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk KT

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

CV 17-7025 DMG (KSx)

Title Anthony Buso v. Penguin Trading, Inc.
vii.

Date

December 22, 2017
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Contacts with the Forum

Governing precedent permits courts to consider “the respective parties’ contacts with the
forum,” meaning this District, as well as the “contacts relating to the plaintiff’s cause of action in
the chosen forum.” Jones, 211 F.3d at 498; Hogan, 2013 WL 12129856, at *3 (contacts with the
forum concerns the chosen forum). As discussed above, Plaintiff is not a resident of this District,
and his suit is based on purchases made in San Diego, which is not in this District. FAC at ¶ 3
(purchases made in San Diego). As discussed above, however, Defendant has significant
contacts with this forum, including its 124 retail sales locations. This factor thus weighs against
transfer.
viii.

Applicable Law

Plaintiff’s suit invokes California state law. “There is an appropriateness in having the
trial of a diversity case in a forum that is at home with the state law that must govern the case,
rather than having a court in some other forum untangle problems in conflict of laws, and in law
foreign to itself.” Ganezer v. DirectBuy, Inc., No. CV 08-8666 GAF (RCx), 2012 WL
12867971, at *5 (C.D. Cal. Jan. 30, 2012) (quoting Van Dusen v. Barrack, 376 U.S. 612, 645
(1964)) (citing Jonathan Browning v. Venetian Casino Resort, LLC, No. C 07-3983 JSW, 2007
WL 4532214, at *6 (N.D. Cal. Dec. 19, 2007) (“The Northern District of California is more
familiar with the relevant California state laws that govern the state claims. This factor does not
favor transfer . . . .”)). That said, “federal courts are accustomed in diversity actions to applying
laws foreign to the law of their particular State, and familiarity with such foreign law presents no
technological problems in the modern age of WESTLAW and LEXIS.” Id. (quoting Pitney
Bowes, Inc. v. Nat’l Presort, Inc., 33 F. Supp. 2d 130, 132 (D. Conn. 1998)). This factor is
therefore neutral.
ix.

Administrative Considerations

Finally, Plaintiff represents that docket congestion in E.D.N.Y. creates a 10-month
disparity between the median length of time for a civil case to resolve in trial in this District
versus that one, with this District’s cases resolving faster. See Ex. 9 to Pl’s RJN [Doc. # 23-30].6
Although this factor favors Plaintiff’s opposition to transfer, it does so only weakly. See Rubio,
181 F. Supp. 3d at 765 (“[A]dministrative considerations such as docket congestion are given
little weight in this [C]ircuit in assessing the propriety of a § 1404(a) transfer.”).

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The Court GRANTS Plaintiff’s request for judicial notice with respect to this Exhibit. The document is
available on the website of the Administrative Office of the U.S. Courts and is therefore a proper subject of judicial
notice. See United States ex rel. Modglin v. DJO Global Inc., 48 F. Supp. 3d 1362, 1381 (C.D. Cal. 2014). The
Court DENIES as moot Plaintiff’s request for judicial notice of other documents as the Court did not consider them
in ruling on this motion.
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CIVIL MINUTES—GENERAL

Initials of Deputy Clerk KT

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

Date

CV 17-7025 DMG (KSx)

Title Anthony Buso v. Penguin Trading, Inc.

December 22, 2017
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On balance, four factors—plaintiff’s choice of forum, location of evidence and access to
proof, contact with the forum, and administrative considerations—tilt against a transfer, and one
of those factors only weakly. Three factors—witness convenience, public interest and interests
of justice, and the forum’s power to compel—favor transfer, and two of those factors (witness
convenience and compulsory process) are among the most important considerations when
determining whether to transfer a case under section 1404(a). Accordingly, the weightiest
factors favor a transfer.
Although the Court will not apply the first-to-file rule in this case because of the
anticipatory nature of the New York Action, the most important factors for a section 1404(a)
motion to transfer favor transfer. The Court therefore GRANTS Defendant’s MTD insofar as it
seeks transfer of this case to E.D.N.Y. Defendant’s alternative request for a stay is DENIED as
moot.
II.
CONCLUSION
In light of the foregoing, the Court GRANTS the MTA [Doc. # 27] and DENIES in part
the MTD as moot [Doc. # 16]. The Court GRANTS the motion to transfer this case to the United
States District Court for the Eastern District of New York, where Plaintiff may file his amended
complaint pursuant to the proposed changes submitted to this Court. The January 5, 2017
hearing is VACATED.

IT IS SO ORDERED.

CV-90

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk KT