Williams et al v. WinCo Foods LLC et al

Filing 12

ORDER signed by Judge Kimberly J. Mueller on 1/9/13 ORDERING that for the foregoing reasons, defendant's motion to transfer venue is GRANTED. CASE TRANSFERRED to Northern District of California. (Becknal, R) Modified on 1/10/2013 (Manzer, C).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LESTAREA WILLIAMS and CARLOS
PORRO, on behalf of themselves and all others
similarly situated,

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Plaintiffs,

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No. 2:12-cv-02690-KJM-EFB

vs.
WINCO FOODS, LLC,

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Defendant.

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ORDER
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This case is before the court on defendant WinCo’s motion to transfer venue.

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(ECF 7.) The motion was decided without a hearing. For the reasons outlined below,

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defendant’s motion is GRANTED.

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I.

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ALLEGED FACTS AND PROCEDURAL HISTORY
A.

This Action
Named plaintiffs are two former night shift assistant managers who worked for

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defendant WinCo, a company that operates a chain of supermarkets throughout California. (Pls.’

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Am. Compl. ¶¶ 1-6, Ex A., ECF 2 (“FAC.”).) Plaintiffs seek to bring a class action alleging

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defendant intentionally misclassified night shift assistant managers as exempt from overtime

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under California law. (Id. ¶¶ 5-6.) As a result of this misclassification, plaintiffs allege they are
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owed compensation for unpaid overtime, missed meal and rest periods, and inaccurate wage

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statements. (Id. ¶ 3.) Plaintiffs bring three causes of action: 1) unlawful failure to pay overtime

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wages; 2) unfair competition; and 3) a claim under the California Labor Code Private Attorneys

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General Act of 2004. (Id. ¶¶ 19-30.) Plaintiffs seek to represent a class that consists of “persons

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employed in California by WinCo as assistant store managers who worked the night or

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graveyard shift for the four year period preceding the filing of the complaint in Gales v. WinCo

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Foods [ . . . ] to the present . . . .”1 (Id. ¶ 13.) Plaintiffs anticipate this class will consist of at

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least fifty but fewer than one-hundred persons. (Id. ¶ 14.)

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Plaintiff Williams resides in this District. (Williams Decl. ¶ 3.) Plaintiff Porro

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resides in Victorville, in the Central District of California. (Porro Decl. ¶ 3.) Plaintiff Williams

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worked at defendant’s store in this District. (Williams Decl. ¶ 2.) Plaintiff Porro worked at

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defendant’s store in the Central District. (Porro Decl. ¶ 2.) Defendant is a limited liability

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company incorporated in Delaware, with its principal place of business in Idaho. (Stinger Decl.

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¶ 2.)

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Plaintiffs initially filed suit on August 2, 2012 in California Superior Court,

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County of Sacramento. (Def.’s Notice of Removal ¶ 2, ECF 2.) Plaintiff filed an amended

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complaint on September 20, 2012, which was served on defendant on October 1, 2012. (Id.)

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Defendant removed the action to this court on October 25, 2012. (Id. ¶ 1.) On November 9,

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2012, defendant filed the current motion to transfer venue, seeking to move the case to the

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Northern District of California because a judge there had recently heard an essentially identical

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class action brought by the same class counsel on behalf of essentially identical plaintiffs.

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(Def.’s Mot. Transfer at 1, ECF 7-1.) Plaintiff timely filed an opposition on November 30,

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strongly urging this court not to disrupt plaintiff’s choice of forum in large part because the

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As the Gales case is essential to the court’s decision in this order, it is discussed below.
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convenience of the parties and witnesses favors this District. (Pls.’ Opp’n, ECF 8.) Defendant

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timely filed a reply on December 7. (Def.’s Reply, ECF 11.)

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B.

Northern District of California Action: Gales

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In September 2009, the same attorneys that represent plaintiffs in this case filed

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Gales in state court, in the County of San Francisco, on behalf of a single named plaintiff from

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Washington state. (State Court Compl. in Gales, Pls.’ Req. Judicial Notice at 2, Ex. A, ECF

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7-4.)2 Defendant removed that case to the Northern District. Gales v. WinCo Foods,

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No. C 09–05813 CRB, 2011 WL 3794887, at *1 (N.D. Cal. Aug. 26, 2011). Gales brought the

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same three claims as plaintiffs in this case (Second Am. Compl. in Gales, Ex. D, ECF 7-7), on

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behalf of three classes of assistant managers: those who worked, one, the day shift; two, the

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night shift from 2008 to the present; and third, the night shift from September 2005 to 2008,

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Gales, 2011 WL 3794887, at *1.3 Over the nearly three years the Gales case was pending, the

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Gales court heard several discovery and evidentiary disputes and other motions. See Gales,

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Northern District of California, Case No. C 09–05813 CRB (docket). On August 26, 2011, the

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court issued an order denying class certification, because plaintiff’s three proposed classes did

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not meet Federal Rules of Civil Procedure Rule 23(b)(3)’s predominance and superiority

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requirements. Gales, 2011 WL 3794887, at *4. The Gales class certification order demonstrates

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that the court delved rather deeply into the merits of that case, as it had to evaluate the nature of

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Plaintiffs’ request for judicial notice (ECF 8-4) of defendant’s motion to transfer in
Gales and its accompanying declaration is granted, as the court may take notice of facts that can
be “accurately and readily determined from sources whose accuracy cannot reasonably be
questioned.” FED. R. EVID. 201(b)(2); see also United States v. Black, 482 F.3d 1035, 1041 (9th
Cir. 2007) (a court may take judicial notice “‘of proceedings in other courts, both within and
without the federal judicial system, if those proceedings have a direct relation to the matters at
issue.’”) (quoting United States ex. rel. Robinson Rancheria Citizens Council v. Borneo, Inc.,
971 F.2d 244, 248 (9th Cir. 1992)).
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Because plaintiffs in the instant case seek to represent a class that consists of “persons
employed in California by WinCo as assistant store managers who worked the night or
graveyard shift for the four year period preceding the filing of the complaint in Gales v. WinCo
Foods [ . . . ] to the present . . . .” (FAC ¶ 13), the two night shift classes in Gales are essentially
coextensive with the single asserted class in this case.
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plaintiff’s evidence for its three causes of action to determine whether the proposed classes

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satisfied Rule 23(b)(3). Gales, 2011 WL 3794887, at *3-4. After class certification was denied,

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Gales resolved his individual dispute with WinCo and dismissed the case. (McKelvey Decl., Ex.

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I.) Both of the named plaintiffs in this action gave declarations in the Gales litigation. (Id. Dec.,

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¶¶ 7-8, Exs. F, G and H.)

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II.

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STANDARD
When the district court finds that venue is proper, it is still within its discretion,

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“[f]or the convenience of the parties and witnesses, [and] in the interest of justice,” to transfer an

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“action to any other district or division where it might have been brought.” 28 U.S.C. § 1404(a).

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“Section 1404(a) is intended to place discretion in the district court to adjudicate motions for

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transfer according to an ‘individualized, case-by-case consideration of convenience and

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fairness.’” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van Dusen v.

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Barrack, 376 U.S. 612, 622 (1964)). “In ruling on a motion to transfer pursuant to § 1404(a), the

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Court must evaluate three elements: (1) convenience of the parties; (2) convenience of the

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witnesses; and (3) interests of justice.” Safarian v. Maserati N. Am., Inc., 559 F. Supp. 2d 1068,

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1071 (C.D. Cal. 2008) (citations omitted). “Once the court determines that venue is proper, the

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movant must present strong grounds for transferring the action . . . .” Id. (citing Decker Coal Co.

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v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986)). “[A] motion to transfer venue

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for convenience pursuant to 28 U.S.C. § 1404(a) does not concern the issue ‘whether and where’

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an action may be properly litigated. It relates solely to the question where, among two or more

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proper forums, the matter should be litigated to best serve the interests of judicial economy and

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convenience to the parties.” Injen Tech. Co. v. Advanced Engine Mgmt., 270 F. Supp. 2d 1189,

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1193 (S.D. Cal. 2003) (citations omitted).

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In determining whether transfer is proper, the court must “balance the preference

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accorded plaintiff’s choice of forum with the burden of litigating in an inconvenient forum.”

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Decker Coal, 805 F.2d at 843 (citations omitted). According to the Ninth Circuit, relevant
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factors determining whether transfer is appropriate include: (1) the location where the relevant

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agreements were negotiated and executed, (2) the state that is most familiar with the governing

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law, (3) the plaintiff’s choice of forum, (4) the respective parties’ contacts with the forum, (5)

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the contacts relating to the plaintiff’s cause of action in the chosen forum, (6) the differences in

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the costs of litigation in the two forums, (7) the availability of compulsory process to compel

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attendance of unwilling non-party witnesses, and (8) the ease of access to sources of proof.

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Jones v. GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 2000), cert. denied, 531 U.S.

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928 (2000) (citing Stewart Org. Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988)).

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The court attaches a “strong presumption in favor of plaintiff’s choice of forum.”

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Piper Aircraft v. Reyno, 454 U.S. 235, 255 (1981). However, a plaintiff's choice of forum should

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receive less deference when suit is brought in a representative capacity, such as in the case of a

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class action suit. Wireless Consumers Alliance, Inc. v. T-Mobile USA, Inc., No. C 03-3711

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MHP, 2003 WL 22387598, at *3 (N.D. Cal. Oct. 14, 2003) (citing Lou v. Belzberg, 834 F.2d

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730, 739 (9th Cir. 1987)). “Even then, the burden, albeit a lighter one, remains on the moving

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party to demonstrate that the combined concerns of convenience and the interest of justice are

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sufficiently strong to tip the balance in favor of the transfer.” Id. (citing Mayer v. Dev. Corp. of

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Am., 396 F. Supp. 917, 932 n.26 (D. Del .1975)).

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III.

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ANALYSIS
There is no dispute that this action “might have been brought” in the Northern

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District of California. 28 U.S.C. § 1404(a). A nearly identical class action was recently brought

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against defendant in the Northern District, and that suit advanced to the class certification stage.

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See Gales, 2011 WL 3794887.

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Therefore, to determine whether transfer is appropriate, the court must consider

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the convenience of the parties, the convenience of the witnesses, and the interests of justice,

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examining relevant Jones factors throughout the analysis.

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A.

Convenience of the Parties

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The court will consider the convenience of the parties by analyzing relevant Jones

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factors: plaintiffs’ choice of forum, the parties’ contacts with the forum, and the contacts relating

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to plaintiffs’ claims in the chosen forum.

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1.

Plaintiffs’ Choice of Forum

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Plaintiffs initially filed suit in California Superior Court, County of Sacramento.

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(ECF 2.) Defendant removed the action to this court. (Id.) Plaintiffs chose to litigate this case

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within the boundaries of this District. In their opposition to defendant’s motion to transfer,

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plaintiffs assert a strong preference for litigating this case in this District. (ECF 10 at 1-2.)

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However, the court grants plaintiffs’ forum choice less deference because this is a proposed class

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action. Lou, 834 F.2d at 739. Lesser deference is afforded in part because the residence of any

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one plaintiff is less significant when there are fifty to one-hundred potential class plaintiffs,

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particularly when as here the other named plaintiff resides elsewhere. Cf. Madani v. Shell Oil

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Co., No. C07-04296 MJJ, 2008 WL 268986, at *2 (N.D. Cal. Jan. 30, 2008) (affording less

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deference because there were thousands of possible plaintiffs and other named plaintiffs resided

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elsewhere). The court affords this factor even less weight because plaintiffs’ attorneys brought

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an essentially identical action in another forum on behalf of essentially identical plaintiffs and

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interests. Wireless Consumers Alliance, 2003 WL 22387598, at *3; compare Second Am.

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Compl. in Gales, Ex. D, ECF 7-7 (alleging three claims on behalf of day and night assistant

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managers) with FAC at 20-27 (alleging identical three claims but on behalf of night assistant

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managers only).

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All things considered, this factor weighs slightly against transfer.

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2.

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Plaintiff Williams and defendant indisputably have significant contacts with this

Parties’ Contacts with the Forum

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District. Plaintiff Williams resides within this District and worked at defendant’s store here.

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(Williams Decl. ¶¶ 2-3). Although defendant is incorporated under Delaware law and maintains
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its principle place of business in Idaho (Stinger Decl. ¶ 2), the parties agree that sixteen of

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defendant’s twenty-nine California stores are located here. (ECF 7-1 at 1; ECF 8 at 1-2.)

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Defendant does not attempt to argue that the Northern District is more convenient for the parties

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than this District because a party has had more contact with the Northern District. Rather,

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defendant argues that because the parties recently litigated the nearly identical Gales case in the

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Northern District, that district will be more convenient for the parties. (ECF 7-1 at 8.) This

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argument is not relevant to this prong.

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In sum, both parties appear to have significant contacts with this District. This
factor weighs against transfer.

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3.

Contacts With the Forum Relating to Plaintiffs’ Claims

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Plaintiffs allege defendant misclassified night shift assistant managers as exempt

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employees at defendant’s stores throughout California. (Compl. ¶¶ 5-6.) While plaintiffs’

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claims therefore are likely related to contacts with all California federal districts, plaintiff

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Williams worked at defendant’s store within this District. (Williams Decl. ¶ 2.) The court can

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also infer that a substantial number of unnamed putative class members also worked at stores

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within this District, as sixteen of defendant’s twenty-nine stores in California are located here.

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(ECF 7-1 at 1; ECF 8 at 1-2.) Hence, plaintiffs’ claims relate significantly to contacts with this

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district. This factor favors retaining the case.

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On balance, therefore, the convenience of the parties overall weighs somewhat

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against transfer. As noted above, the court weighs the convenience of the parties less heavily

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because plaintiffs seek to bring a class action, Lou, 834 F.2d at 739, through attorneys that have

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already litigated an essentially identical suit in another district, Wireless Consumers Alliance,

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2003 WL 22387598, at *3. However, plaintiffs’ choice here is afforded more deference than the

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plaintiffs in Lou, because some of the operative facts occurred within this district, cf. Lou,

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834 F.2d at 739 (even less deference given the plaintiff’s forum choice because the operative

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facts occurred elsewhere), and the plaintiff’s forum choice in Wireless, because one of the two
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named plaintiffs here, plaintiff Williams, actually resides within this district, cf. Wireless

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Consumers Alliance, 2003 WL 22387598, at *3 (same, but because the plaintiff resided in a

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different district).

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B.

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Convenience of the Witnesses
To demonstrate inconvenience to witnesses, the moving party should produce

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information regarding the identity and location of the witnesses, the content of their testimony,

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and why such testimony is relevant to the action. Steelcase, Inc. v. Haworth, 41 U.S.P.Q.2d

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1468, 1470 (C.D. Cal. 1996); Florens Container v. Cho Yang Shipping, 245 F. Supp. 2d 1086,

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1092-93 (N.D. Cal. 2002). Defendant does not produce such information. Rather, defendant

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argues that convenience of the witnesses is a neutral factor because most of the documents

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pertaining to plaintiffs’ claims are located at WinCo’s headquarters in Idaho, and anticipated

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witnesses are located in Idaho or throughout California. (ECF 7-1 at 11.) Plaintiffs respond by

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citing defendant’s motion to transfer in Gales, in which defendant strenuously argued this

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District would be more convenient for the witnesses because a majority of class members live

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and work in this District and because witnesses working in WinCo’s Southern California,

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Sacramento, and Idaho offices would be significantly inconvenienced by traveling to the

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Northern District. (ECF 8 at 5.) Defendant responds in kind, noting plaintiffs’ counsel in Gales

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argued that eighteen of WinCo’s twenty-nine California stores are located within the same

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driving distance, within twenty miles, of either San Francisco or Sacramento, meaning

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convenience of access to either courthouse is a wash. (ECF 11 at 9.)

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Notwithstanding each party’s now taking positions on transfer opposite to its

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prior position in a different case, the fact remains that this case has been removed to this court in

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this District, and the law recognizes a presumption that it remain here unless defendant bears its

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burden to prove the Northern District is a better venue for the case. Piper Aircraft, 454 U.S. at

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255. Defendant has not even attempted to meet its burden to provide concrete information

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regarding the identity, location, testimony, and relevance of possible witnesses. Steelcase, 41
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U.S.P.Q.2d at 1470. While the parties’ current and prior arguments suggest convenience of the

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witnesses may be a wash, the customary presumption favoring plaintiffs, not rebutted here,

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weighs against transfer.

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C.

Interests of Justice

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Defendant argues this factor is the most relevant to the present transfer

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determination because transfer will further judicial economy, minimize the potential for

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inconsistent verdicts, and thwart plaintiffs’ attempt to forum shop. (ECF 7-1 at 7.) Of the three

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primary § 1404(a) factors, the interests of justice can be the “paramount consideration,”

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defendants aver. (Id. at 6 (citing In re Vistaprint Ltd., 628 F.3d 1342, 1347 (Fed. Cir. 2010)).)

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Defendant cites several cases in which courts transferred a case to a forum that has already heard

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a related case because transfer would serve the interests of justice. (Id. at 7-8 (citing numerous

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cases, including Wireless Consumers Alliance, 2003 WL 22387598, at *4 n.3; Gatdula v. CRST

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Int’l, Inc., No. CIV. 2:10–58 WBS CMK, 2011 WL 445798, at *3 (E.D. Cal. Feb. 8, 2011);

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Madani v. Shell Oil Co., No. C07-04296 MJJ, 2008 WL 268986 at *2-3 (N.D. Cal. Jan. 30,

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2008); MP Vista, Inc. v. Motiva Enterprises, LLC, No. 07-099-GMS, 2008 WL 5411104, at *2

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(D. Del. Dec. 29, 2008)).) Defendant also urges this court to heed dicta in Smith v. Bayer, __

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U.S. __, 131 S. Ct. 2368, 2381-82 (2011), in which the Supreme Court stated that principles of

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comity among courts can serve to mitigate ills associated with class action relitigation.

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Plaintiffs assert defendant simply wants to effect a transfer of this action to a

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judge who gave defendant a favorable ruling. (ECF 8 at 11.) Plaintiffs cite cases that contradict

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In re Vistaprint and hold the interest of justice factor is entitled to little weight standing alone,

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particularly when there is no possibility of consolidation with a related case. (Id. at 9 (citing

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Payne v. AHFI Netherlands, B.V., 482 F. Supp. 1158, 1164 (N.D. Ill. 1980); Nat’l Bank of Wash.

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v. Mallery, 669 F. Supp. 22, 29 (D. D.C. 1987); MedImmune, LLC v. PDL BioPharma, Inc., No.

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C 08-5590 JF (HRL), 2009 U.S. Dist. LEXIS 36765 (N.D. Cal. April 14, 2009)).) Plaintiffs

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aver cases such as Gatdula and Madani are distinguishable primarily because the courts to which
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these cases were transferred were much more familiar with the transferred case as the related

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litigation had progressed to summary judgment, whereas Gales advanced only to the class

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certification stage. (Id. at 8.) Plaintiffs do not address defendant’s comity argument based on

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Bayer. In sum, plaintiffs deny they are forum shopping and assert that transferring this case

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would not further judicial economy or minimize the chance of inconsistent verdicts because the

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Gales case has already reached final judgment and because there is no guarantee that the judge

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who presided over Gales would receive this case after transfer.

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In its reply, defendant counters with more cases holding that the interests of
justice factor is a paramount consideration in a transfer motion. (ECF 11 at 1-2.) It argues that

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transferring would serve judicial economy because the Northern District judge presided over

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Gales for nearly three years, during which time the judge heard many discovery and evidentiary

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disputes and motions. (Id. at 3.) Defendant further asserts the parties in Gales, in connection

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with the class certification motion, submitted seventy-five pages of briefing, more than forty-five

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declarations from current and former WinCo assistant managers, deposition testimony from

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approximately ten witnesses, numerous exhibits, and over 100 pages of evidentiary objections.

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(Id.) Defendant repeats that plaintiffs’ choice of forum should receive no weight because there is

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ample evidence of forum shopping. (Id. at 8.)

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No controlling authority requires this court to make the interests of justice

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paramount in its section 1404(a) analysis. “Section 1404(a) is intended to place discretion in the

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district court to adjudicate motions for transfer according to an ‘individualized, case-by-case

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consideration of convenience and fairness.’” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29

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(1988). The question, then, is whether defendant has carried its lighter burden to disturb

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plaintiffs’ choice of forum based on the interests of justice factor, when the convenience of the

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parties and witnesses factors militate against transfer.

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All things considered, the court finds that the interests of justice strongly favor
transfer such that the other factors are outweighed. First, while both parties’ cases are
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distinguishable, Madani and Wireless Consumers Alliance are most factually similar to the

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instant case. Plaintiffs are correct in noting that cases such as Wireless Consumers Alliance,

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Gatdula, Madani, and MP Vista are somewhat distinguishable from the instant action. In the

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latter three cases, the transferee court had presided over related cases that had progressed to

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summary judgment or beyond, suggesting those judges had greater familiarity with the merits

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and could therefore effect a greater savings of judicial resources. Gatdula, 2011 WL 445798, at

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*3 (transferee judge had issued summary judgment rulings); Madani, 2008 WL 268986, at *1

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(same); MP Vista, Inc., 2008 WL 5411104, at *3 (judge had already handled two similar class

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actions based upon same underlying operative incident). Gales, in contrast, advanced only to the

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class certification stage. (McKelvey Decl., Ex. I). In addition, the related cases in Gatdula were

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still pending, 2011 WL 445798, at *1, while Gales is not. (McKelvey Decl., Ex. I). The

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operative facts and parties in MP Vista had little connection to Delaware, and the Delaware

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district court would have had to apply Louisiana law. 2008 WL 5411104, at *3. And, as noted

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above, the named plaintiff in Wireless Consumers Alliance did not reside in the district, while

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one named plaintiff here does. (Williams Decl. ¶ 3.)

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The cases plaintiffs rely on are less analogous, however. MedImmune and Payne

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dealt with suits that were not class actions and that involved different claims from the

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purportedly related suits. MedImmune, 2009 U.S. Dist. LEXIS 36765, at *4-5; Payne, 482 F.

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Supp. at 1160, 1165. Furthermore, the suits in MedImmune involved different plaintiffs, 2009

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U.S. Dist. LEXIS 36765 at *4-5, and the potential transferee forum in Payne likely would not

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have had jurisdiction over some of the parties, 482 F. Supp. at 1165. While Temple and National

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Bank dealt with class actions, neither case involved related cases that were litigated by

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essentially identical parties through the same counsel. Temple v. Guardsmark, No. C 09-02124

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SI, 2009 U.S. Dist. LEXIS 91306, at *2-4 (N.D. Cal. Sep. 16, 2009); Nat’l Bank of Wash, 669 F.

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Supp. at 29. Further, the judge in Temple had only granted summary judgment to the named

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plaintiff as an individual after denying class certification. 2009 U.S. Dist. LEXIS 91306, at *13.
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And the purportedly related cases in National Bank raised claims completely unrelated to those

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in the case the defendant sought to transfer. 669 F. Supp. at 29.

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All things considered, Madani and Wireless Consumers Alliance are most

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factually similar to the instant case. In Madani, the court found a high likelihood that plaintiffs’

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counsel was attempting to forum shop because “the same counsel, seeking to represent a nearly

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identical class, filed a [sic] earlier lawsuit premised on the same allegedly unlawful activity in [a

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different] District.” 2008 WL 268986, at *3. Here, the same counsel brings the same claims

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seeking to represent nearly an identical class, having excised only the day-shift assistant

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managers when compared to the Gales action. Compare Second Am. Compl. in Gales, Ex. D,

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ECF 7-7 (alleging three causes of action on behalf of day and night assistant managers brought

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by Qualls & Workman LLP) with FAC at 20-27 (alleging identical three claims but on behalf of

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night assistant managers only, also brought by Qualls & Workman LLP). The plaintiffs in

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Madani identified some connections the Northern District had to the suit, such that the

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convenience of the parties weighed slightly against transfer, but those connections had existed

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when the plaintiffs’ counsel filed the first iteration of the suit in the Central District. Id. at *3.

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Similarly, when plaintiffs’ counsel here filed Gales in state court in the County of San Francisco,

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on behalf of a single named plaintiff from Washington state (McKelvey Decl., Ex. I at 10-16),

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the facts relevant to the convenience of the parties and witnesses were almost exactly the same as

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they are now, yet plaintiffs’ counsel did not choose a court in this forum. Further, the named

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plaintiffs in Madani had been class members in the earlier iteration of the suit. Id. at *1. So,

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too, were the named plaintiffs here. (McKelvey Decl. ¶¶ 7-8, Exs. F, G and H.)

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Similarly, in Wireless Consumer Alliance the court transferred a class action,

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involving identical plaintiffs, though a different named plaintiff, brought by the same counsel as

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in a prior adjudicated case, from the Northern to the Central District of California because the

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cases were so closely related that “failure to file a Notice of Pendency of Other Action or

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Proceeding” violated a local rule. 2003 WL 22387598, at *1-5. Conserving judicial resources
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and discouraging forum shopping tipped the balance heavily in favor of transfer. Id. at 6. The

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instant case is different only in that one named plaintiff lives in this District and the putative

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class here presumably is much smaller than the proposed class in the Gales case. See id. at *5

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(putative class consisted of all T-Mobile subscribers in California).

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Second, judicial economy weighs in favor of transfer. Case law and common

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sense suggest the level of familiarity a court has with the merits of a case is proportionate to the

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amount of work the court expends on it. How far into the litigation a case advances is only one

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measure of familiarity. The transferee judge in Wireless Consumer Alliance had only ruled on a

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motion to stay and compel arbitration, id. at *1, early in the case’s gestation. The docket in

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Gales reflects what defendant asserts in its motion, that the Gales court, over nearly three years,

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heard discovery and evidentiary disputes as well as motions and delved deeply into the class

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certification issue, which required wrestling with the underlying claims and associated evidence.

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Gales, 2011 WL 3794887, at *3-4.4 Even if this case is not assigned to the same Northern

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District judge, transfer will discourage forum shopping and respect principles of comity, as

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explained below.

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Third, transfer is warranted under the interests of justice factor in light of the

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Supreme Court’s recent discussion of comity and class action relitigation. Bayer, 131 S. Ct. at

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2381-82. In Bayer, the Court reaffirmed the legal system’s commitment to traditional principles

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of preclusion by overturning a district court’s enjoining of a pending state court case that sought

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to relitigate the multi-district class action the district court had already adjudicated. Id. at 2381.

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The Court found the plaintiffs in the state court action, who were not parties to the multi-district

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Moreover, Gales meets this District’s definition of a related case. L.R. 123. This case
and Gales involve essentially the same parties, are based on the same claims, and involve the
same event: defendant’s alleged misclassification of assistant managers as exempt employees
under California labor law. L.R. 123(a)(1)-(2). After transfer, defendant has indicated it will
move to relate this case with Gales. (ECF 11 at 6 n.3.) While this court cannot predict its sister
court’s response to defendant’s motion, it notes that the Northern District’s definition of a related
case is essentially identical to this District’s. See N.D. Cal. L.R. 3012(a).
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litigation, were not bound by that multi-district litigation because preclusion did not apply. Id. at

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2380-81. Recognizing that its ruling, despite the Class Action Fairness Act of 2005, would

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countenance relitigation of class actions because class counsel can just change the caption of the

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complaint and refile, the Court stated that the principles of stare decisis and comity among

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courts can serve to “mitigate the substantial costs of similar litigation brought by different

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plaintiffs.” Id. at 2381-82. The Court expects “federal courts to apply principles of comity to

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other’s class certification decisions when addressing a common dispute.” Id. at 2382. While the

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Court cited cases discussing comity among federal courts and motions to stay to illustrate this

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comity principle, see, e.g., Cortez Byrd Chips, Inc. v. Bill Harbert Constr. Co., 529 U.S. 193,

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198 (2000), its counsel applies more broadly. Principles of comity support transfer of this case

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to a sister district that has already ruled on a class certification action in an essentially identical

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case.

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The interests of justice outweigh the convenience of the parties and witnesses. On

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balance, the section 1404(a) factors favor transfer.

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IV.

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CONCLUSION
For the foregoing reasons, defendant’s motion to transfer venue is GRANTED.

DATED: January 9, 2013.

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UNITED STATES DISTRICT JUDGE

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