Wilson v. Conair Corporation

Filing 23

MEMORANDUM AND ORDER signed by Senior Judge William B. Shubb on 8/27/2014 ORDERING 8 that defendant's motion to dismiss for improper venue, to transfer venue, and for a more definite statement be, and the same hereby are DENIED. (Reader, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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DELIA WILSON, on behalf of
herself and others similarly
situated

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CIV. NO. 1:14-894 WBS BAM
MEMORANDUM AND ORDER RE:
MOTION TO DISMISS; MOTION TO
TRANSFER; MOTION FOR MORE
DEFINITE STATEMENT

Plaintiff,
v.
CONAIR CORPORATION,

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Defendant.

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----oo0oo----

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Plaintiff Delia Wilson brought this putative class
action arising out of her purchase of an allegedly defective
curling iron from defendant Conair Corporation.

Defendant now

moves to dismiss for improper venue under Federal Rule of Civil
Procedure 12(b)(3) or to transfer venue under 28 U.S.C. §
1404(a).

Defendant also moves for a more definite statement

under Rule 12(e).

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I.

Factual & Procedural Background

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Defendant is a Delaware corporation headquartered in
New Jersey with sales and marketing offices in Connecticut.
(Compl. ¶ 10 (Docket No. 1).)

California, alleges that she purchased one of defendant’s
products, a Conair Instant Heat 1½” Curling Iron, in early 2010
at a Sally Beauty Supply in Fresno, California.
(Docket No. 1).)

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(Compl. ¶ 9

Within a month, plaintiff alleges that the

curling iron malfunctioned.

(Id. ¶ 13.)

Defendant then sent

plaintiff a replacement iron that plaintiff claims was defective,
allegedly short-circuiting without warning and emitting a shower
of sparks.

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Plaintiff, who resides in Goleta,

(Id. ¶¶ 13-16.)
Plaintiff first filed a class action complaint in the

Central District of California on June 6, 2014.
Judicial Notice Ex. B (Docket No. 8-4).)1

(Def.’s Req. for

Plaintiff subsequently

dismissed that complaint and filed the present class action
complaint (“Complaint”) in the Eastern District of California on
June 11, 2014.

The Complaint seeks certification of a class

consisting of “All persons who purchased Conair Styling Irons in
California,” (Compl. ¶ 30), and brings claims for: (1) violation
of the Consumers Legal Remedies Act (“CLRA”), Cal. Civ. Code §§
1750 et seq.; (2) violation of the Unfair Competition Law

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The court will take judicial notice of the existence of
plaintiff’s previous Central District complaint and of the
representations made therein, but not of the veracity of such
representations. See Fed. R. Evid. 201; NuCal Foods, Inc. v.
Quality Egg LLC, 887 F. Supp. 2d 977, 984 (E.D. Cal. 2012)
(Mueller, J.)(“Courts have consistently held that courts may take
judicial notice of documents filed in other court proceedings.”).
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(“UCL”), Cal. Bus. & Profs. Code §§ 17200 et seq.; and (3) breach
of implied warranty, (Compl. ¶¶ 40-72).2
II.

Analysis
A.

Venue

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“A defendant over whom personal jurisdiction exists
but for whom venue is improper may move for dismissal or transfer
for improper venue under 28 U.S.C. § 1406(a).

whom venue is proper but inconvenient may move for a change of
venue under 28 U.S.C. § 1404(a).”

Defendant moves under both provisions here.
first determine if venue is proper.

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Thus, the court must

If so, then the court must

determine whether another venue is nevertheless more convenient.
1.

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Action Embroidery Corp. v.

Atl. Embroidery, Inc., 368 F.3d 1174, 1181 (9th Cir. 2004).

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A defendant for

Improper Venue under Rule 12(b)(3)

Rule 12(b)(3) authorizes the court to dismiss an action
for improper venue.

Fed. R. Civ. P. 12(b)(3); see also 28 U.S.C.

§ 1406(a) (“The district court of a district in which is filed a
case laying venue in the wrong division or district shall
dismiss, or if it be in the interest of justice, transfer such
case to any district or division in which it could have been
brought.”).

The plaintiff has the burden of proving that venue

is proper in the district in which the suit was initiated.

Munns

v. Clinton, 822 F. Supp. 2d 1048, 1079 (E.D. Cal. 2011) (England,
J.) (citing Piedmont Label Co. v. Sun Garden Packing Co., 598
F.2d 491, 496 (9th Cir. 1979)).

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Although plaintiff alleges she suffered physical harm
from use of the curling iron, she disclaims any recovery for
personal injury damages. (Id. ¶ 9.)
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Venue is proper in “a judicial district in which a
substantial part of the events or omissions giving rise to the
claim occurred.”

28 U.S.C. § 1391(b)(2).

This provision “does

not require that a majority of the events have occurred in the
district where suit is filed, nor does it require that the events
in that district predominate.”

Rodriguez v. Cal. Highway Patrol,

89 F. Supp. 2d 1131, 1136 (N.D. Cal. 2000).

Courts routinely

find venue proper in UCL and CLRA cases where the plaintiff
encountered false advertising and purchased the product in
question in the forum district.

See, e.g., Allen v. Similasan

Corp., Civ. No. 12-376 BTM WMC, 2013 WL 2120825, at *8 (S.D. Cal.
May 14, 2013) (finding venue to be proper where one plaintiff had
purchased product from Colorado-based defendant in California);
Nilon v. Natural-Immunogenics Corp., Civ. No. 12-930 BGS, 2012 WL
2871658, at *2 (S.D. Cal. July 12, 2012) (“The Court concludes
that venue is proper because the alleged events that led
Plaintiff to purchase the product (i.e. Defendant’s alleged false
advertising) took place in California.”); cf. Sidco Indus. Inc.
v. Wimar Tahoe Corp., 768 F. Supp. 1343, 1346 (D. Or. 1991)
(determining that, in trademark and unfair competition cases,
venue is proper where the confusion caused by the advertising
occurs).
Like the plaintiff in Allen, 2013 WL 2120825, at *8,
plaintiff alleges that she purchased a defective product from
defendant in the Eastern District, (Compl. ¶ 9), and later
received a second defective product from defendant as a result of

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this initial purchase,3 (id. ¶¶ 13-14).

she encountered and relied upon defendant’s marketing and
advertising while in the Eastern District, (Hurst Decl. ¶ 2
(Docket No. 19-1)); thus, the confusion caused by defendant’s
alleged false advertising occurred in the Eastern District.
Sidco, 768 F. Supp. at 1346.

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Plaintiff has therefore established

to the claim occurred” in the Eastern District.

28 U.S.C. §

1391(b)(2).
In arguing that venue is improper, defendant relies on
Hawkins v. Gerber Products Co., 924 F. Supp. 2d 1208, 1215 (S.D.
Cal. 2013), and Rikos v. Procter & Gamble Co., Civ. No. 10-1974
BEN (CAB), 2011 WL 1456096, at *1 (S.D. Cal. April 13, 2011).

In

particular, defendant points to language in Hawkins where the
court endorsed the proposition that “in a false advertising
action, the heart of the matter lies where the marketing and
manufacturing decisions were made, which is typically at
Defendant’s headquarters.”

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See

that “a substantial part of the events or omissions giving rise

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Plaintiff also alleges

924 F. Supp. 2d at 1215.

Plaintiff’s reliance on these cases is misplaced, as in
both Hawkins and Rikos the issue was whether to transfer venue
under § 1404(a), not whether venue was proper in the first place
under § 1406(a).

For the purposes of defendant’s Rule 12(b)(3)

motion, the court need not determine where “the heart of the

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Plaintiff’s Complaint does not specify whether
plaintiff received the second curling iron while in Fresno or in
Goleta, which is in the Central District. At oral argument,
plaintiff’s counsel represented that plaintiff received the
second iron in Fresno. The court sees no reason to doubt this
representation at this time.
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matter lies.”

one district, as there may be more than one district in which “a
substantial part of the events giving rise to the claim
occurred.”

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single district where a substantial part of the events
occurred.”).
Accordingly, because plaintiff alleges that the Eastern
District of California is where she relied upon defendants’
representations and purchased both the original and replacement
product, “a substantial part of the events or omissions giving
rise to the claim occurred” in this district, 28 U.S.C. §
1391(b)(2), and defendant’s motion to dismiss for improper venue
must be denied.

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2.

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See Sidco, 768 F. Supp. at 1346 (“Defendants are

mistaken in their contention that the court must determine the

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To the contrary, venue may be proper in more than

Transfer to More Convenient Forum

“For the convenience of parties and witnesses, in the
interest of justice, a district court may transfer any civil
action to any other district or division where it might have been
brought.”

28 U.S.C. § 1404(a).

The purpose of this provision

“is to prevent the waste of time, energy and money and to protect
litigants, witnesses and the public against unnecessary
inconvenience and expense.”

Van Dusen v. Barrack, 376 U.S. 612,

616 (1964) (internal quotation marks omitted).

Section 1404(a)

affords district courts broad discretion “to adjudicate motions
for transfer according to an individualized, case-by-case
consideration of convenience and fairness.”

Jones v. GNC

Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000) (quoting

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Stewart Org. v. Ricoh Corp., 487 U.S. 22, 29 (1988)) (internal
quotation marks omitted).
“In ruling on a motion to transfer pursuant to §
1404(a), the Court must evaluate three elements: (1) convenience
of the parties; (2) convenience of the witnesses; and (3)
interests of justice.”

Safarian v. Maserati N. Am., Inc., 559 F.

Supp. 2d 1068, 1071 (C.D. Cal. 2008).

According to the Ninth

Circuit, this analysis may include a number of factors, such as:
the plaintiff’s choice of forum, the parties’ contacts with the
forum, the contacts relating to the plaintiff’s cause of action
in the chosen forum, the differences in the costs of litigation
in the two forums, the ease of access to the evidence, the
feasibility of consolidating other claims, and the relative court
congestion and time to trial in each forum.

Jones, 211 F.3d at

498-99; Decker Coal. Co. v. Commonwealth Edison Co., 805 F.2d
834, 843 (9th Cir. 1986).
The moving party has the burden of showing that
transfer is appropriate.

Williams v. Bowman, 157 F. Supp. 2d

1103, 1106 (N.D. Cal. 2001); cf. Jones, 211 F.3d at 499 (noting
that defendant failed to meet burden of showing that alternative
forum was more appropriate).

“The defendant must make a strong

showing of inconvenience to warrant upsetting the plaintiff’s
choice of forum,” Decker Coal, 805 F.2d at 843, and transfer must
do more than merely “shift the inconvenience from one party to
another,” Safarian, 559 F. Supp. 2d at 1071.
Because the statute contemplates transfer “to any other
district or division where it might have been brought,” 28 U.S.C.

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§ 1404(a), defendant must make a threshold showing that venue and
jurisdiction would be proper in the district to which it seeks
transfer.

Vu v. Ortho-McNeil Pharm., Inc., 602 F. Supp. 2d 1151,

1155 (N.D. Cal. 2009); see also F.T.C. v. Watson Pharm., Inc.,
611 F. Supp. 2d 1081, 1090 (C.D. Cal. 2009) (“For transfer under
§ 1404(a), the threshold issue is whether the case ‘might have
been brought’ in the proposed venue.”).
Here, defendant fails to address this threshold
question; its brief includes only a perfunctory paragraph stating
that “Venue is proper in one of four potential forums”--the
District of Connecticut, the District of New Jersey, the District
of Delaware, and the Central District of California.
Mem. at 11:2-9 (Docket No. 8).)

(Def.’s

Defendant focuses extensively on

why the Eastern District of California is an inappropriate forum
but simply appears to assume that the case “might have been
brought” in these other districts.
In any event, the court finds that even if defendant
had made the required threshold showing that the suit “might have
been brought” in one of its preferred transferee courts, the
balance of factors does not weigh in favor of transfer to any of
those districts.

First, in considering convenience of the

parties, courts generally accord “great weight” to the
plaintiff’s choice of forum.
(9th Cir. 1987).

Lou v. Belzberg, 834 F.2d 730, 739

When an individual represents a class, however,

the named plaintiff’s choice of forum receives less weight.

Id.

“In part, the reduced weight on plaintiff’s choice of forum in
class actions serves as a guard against the dangers of forum

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shopping, especially when a representative plaintiff does not
reside within the district.”
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A plaintiff’s choice of forum also receives less weight
where the operative facts have not occurred within the forum and
the forum has no particular interest in the parties or subject
matter.

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Id. at 1215 (citing Pac. Car & Foundry Co. v. Pence, 403

F.2d 949, 954 (9th Cir. 1968)).

Here, plaintiff brings her

claims on behalf of a class, and she is no longer a resident of
the Eastern District.4

Her decision to file in this district

thus receives less weight.

See Lou, 834 F.2d at 739; Hawkins,

924 F. Supp. 2d at 1214-15.

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Hawkins, 924 F. Supp. 2d at 1214-

Tending to the contrary, although plaintiff purchased
defendant’s allegedly defective product in this district, other
operative facts occurred in Connecticut, where defendant’s
marketing, sales, and engineering personnel for curling irons
operate and where defendant maintains its promotional and
marketing materials pertaining to curling irons.
3,5 (Docket No. 8-1).)

(Fong Decl. ¶¶

These facts, especially in a false

advertising action, weigh in favor of transfer.

See Hawkins, 924

F. Supp. 2d at 1215 (finding that “heart of the matter” in false
advertising case “lies where the marketing and manufacturing
decisions were made”); Rikos, 2011 WL 1456096, at *2 (determining

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Defendant argues that plaintiff’s decision to re-file
this action in the Eastern District shortly after filing and then
dismissing an action in the Central District is evidence of forum
shopping. Plaintiff responds that she simply was mistaken as to
in which district she purchased defendant’s product. (Hurst
Decl. ¶ 2.)
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that, while the plaintiff had purchased product in current forum
district, “the operative facts likely occurred” in Ohio where the
defendant was headquartered and made decisions regarding product
marketing).5

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Second, as for convenience to witnesses, “[c]onvenience
of nonparty witnesses is often the most important factor in the
section 1404(a) calculus.”

13-287 KJM CKD, 2014 WL 130526, at *7 (E.D. Cal. Jan. 14, 2014).
“To demonstrate inconvenience of witnesses, the moving party must
identify relevant witnesses, state their location and describe
their testimony and its relevance.

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Williams v. Bowman, 157 F.

Supp. 2d 1103, 1108 (N.D. Cal. 2001).

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Welenco, Inc. v. Corbell, Civ. No. S-

Here, neither party identifies any third party
witnesses.

Defendant generally avers that some of its employees

would be witnesses and that it would be more convenient for them
to testify on the East Coast, but it does not offer further
specifics.

(Fong Decl. ¶ 3.)

Because plaintiff seeks to certify

a class composed solely of “persons who purchased Conair Styling
Irons in California,” (Compl. ¶ 30), many if not all of potential
class members who wish to testify are likely to reside in
California, and those witnesses would be inconvenienced by
transfer to the East Coast.

Accordingly, as transfer must do

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In re Ferrero Litigation, 768 F. Supp. 2d 1074 (S.D.
Cal. 2011), on which plaintiff relies, does not dictate
otherwise. In Ferrero, the court stressed the “operative facts”-that plaintiff relied on defendant’s misrepresentations and
suffered the resulting harm in the forum district--in declining
to transfer the action to the district in which defendant made
the misrepresentations. Id. at 1079. The plaintiff in Ferrero,
however, also resided in the initial forum. Id.
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more than merely “shift the inconvenience from one party to
another,” Safarian, 559 F. Supp. 2d at 1071, this factor neither
favors nor disfavors transfer.
Finally, the court must consider the “interests of
justice,” which may incorporate factors including judicial
efficiency, familiarity with governing law, and any local
interest in the controversy.

Defendant argues that New Jersey or

Connecticut district courts are just as capable as California
district courts in applying California state law and that those
states have a strong interest in ensuring that their businesses
do not engage in fraudulent or deceptive practices.
However, nearly all the authority defendant cites is
either distinguishable or actually weighs against transfer.

For

example, the plaintiff in Hawkins originally filed claims under
California, Michigan, and New Jersey law, and the court also
found that transfer to New Jersey would create efficiency and
fairness gains because five nearly identical actions were pending
there before a single judge.

924 F. Supp. 2d at 1216-17.

No

such considerations are present here, as plaintiff brings only
California state law claims and no related actions are pending
elsewhere.

Moreover, defendant points to Wellens v. Daiichi

Sankyo Co., Civ. No. 13-581 CW, 2013 WL 3242294, at *5 (N.D. Cal.
June 25, 2013), and Holliday v. Lifestyle Lift, Inc., Civ. No.
09-4995 RS, 2010 WL 3910143, at *8 (N.D. Cal. Oct. 5, 2010), both
of which denied the defendants’ motions to transfer even though
those cases involved nationwide classes of plaintiffs bringing
both state and federal law claims.

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Here, the argument against transfer is even stronger,
inasmuch as plaintiff brings only California state law claims on
behalf of a class of California consumers.

reason it cannot bring this case to a just resolution and,
considering plaintiff brings only California state law claims and
seeks certification of a class comprised solely of California
purchasers, finds that the interests of justice weigh heavily
against transfer.6

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For the foregoing reasons, the court will deny
defendant’s motion to transfer venue.
B.

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More Definite Statement
Before filing a responsive pleading, a party may move

under Rule 12(e) for a more definite statement of a pleading if
it “is so vague or ambiguous that the party cannot reasonably
prepare a response.”

Fed. R. Civ. P. 12(e).

The party seeking a

more definite statement “must point out the defects complained of
and the details desired.”

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The court sees no

Id.

“The purpose of Rule 12(e) is to provide relief from a
pleading that is unintelligible, not one that is merely lacking
detail.”

E.E.O.C. v. Alia Corp., 842 F. Supp. 2d 1243, 1250

(E.D. Cal. 2012) (O’Neill, J.).

If the complaint “is specific

enough to apprise the responding party of the substance of the
claim being asserted or where the detail sought is otherwise

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These factors could support transfer to the Central
District of California. However, Defendant makes no argument
that the Central District is any more convenient for it than this
district. Defendant suggests that transfer to the Central
District may be more convenient for plaintiff, but the court does
not find this to be a compelling justification for transfer
considering that plaintiff opposes the motion.
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obtainable through discovery,” the court should deny a motion for
a more definite statement.

Id.

Accordingly, the Ninth Circuit

has suggested that Rule 12(e) relief will be proper only on “rare
occasions.”

Bautista v. Los Angeles County, 216 F.3d 837, 843

n.1 (9th Cir. 2000).
Defendant cites Lemanski v. Regents of the University
of California, Civ. No. 08-548 EMC, 2008 WL 3916021, at *3 (N.D.
Cal. Aug. 22, 2008), and argues that plaintiff must allege the
specific product in question by model and year.

But the issue in

Lemanski was whether one of the defendants had supplied certain
instruments as a subcontractor to plaintiff’s employer--not
products liability or false advertising like the present claim.
Moreover, the court in Lemanski only stated that that the
plaintiff should provide the defendant “with additional
information” about the instruments, including the “the time
frames the instruments were provided,” and “the general type of
instruments involved.”

2008 WL 3916021, at *3.

Nothing in

Lemanski requires plaintiff to allege the specific product in
question by model and year.
Here, plaintiff has alleged that she purchased a
defective Conair Instant Heat 1½” Curling Iron at a Sally Beauty
Supply in Fresno in early 2010, and that defendant sent her
another defective iron around a month later.

(Compl. ¶¶ 9, 13.)

This pleading may lack all the detail defendants might like it to
contain, but it is certainly not “unintelligible.”
Supp. 2d at 1250.

Alia, 842 F.

Defendant may obtain the exact product details

in discovery, and plaintiff’s counsel represents that plaintiff

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has already agreed to provide this information to defendant.
(Hurst Decl. ¶ 4.)

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Defendant also objects to the Complaint’s general
references to “styling irons.”

the Complaint employs the term “styling irons” in the same manner
that defendant uses on its web site.

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Although

class injured by other products within the styling iron category
because they are allegedly defective in the same manner.
¶¶ 2, 23.)

(Compl.

Any issues relating to plaintiff’s ability to

represent this class because she only purchased a curling iron
should be resolved at the class certification stage, not on a
Rule 12(e) motion.
Accordingly, because the Complaint is not “so vague or
ambiguous” that defendant “cannot reasonably prepare a response,”
the court will deny defendant’s motion for a more definite
statement.

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(Id. ¶ 5 Ex. A.)

plaintiff only purchased a curling iron, she seeks to represent a

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As plaintiff points out, however,

IT IS THEREFORE ORDERED that defendant’s motions to
dismiss for improper venue, to transfer venue, and for a more
definite statement be, and the same hereby are, DENIED.
Dated:

August 27, 2014

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