Pedro et al v. Millennium Products, Inc. et al

Filing 43

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO STAY; TRANSFERRING ACTION TO CENTRAL DISTRICT OF CALIFORNIA. To the extent Millennium seeks a stay of the above-titled action, the motion is denied. To the extent Millenniu m seeks a transfer of the above-titled action, the motion is granted, and the above-titled action is transferred to the United States District Court for the Central District of California. Signed by Judge Maxine M. Chesney on May 27, 2016. (mmclc2, COURT STAFF) (Filed on 5/27/2016)

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1 2 3 IN THE UNITED STATES DISTRICT COURT 4 FOR THE NORTHERN DISTRICT OF CALIFORNIA 5 6 NINA PEDRO, et al., Plaintiffs, 7 v. 8 9 Case No. 15-cv-05253-MMC MILLENNIUM PRODUCTS, INC., et al., Defendants. 10 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO STAY; TRANSFERRING ACTION TO CENTRAL DISTRICT OF CALIFORNIA Re: Dkt. No. 32 United States District Court Northern District of California 11 12 Before the Court is the Motion to Stay, filed March 11, 2016, by defendants 13 Millennium Products, Inc. and George Thomas “GT” Dave (collectively, “Millennium”). 14 Defendant Whole Foods Market California, Inc. (“Whole Foods”) has filed a statement of 15 16 17 18 19 20 21 non-opposition. Plaintiffs Nina Pedro and Rosalind Lewis have filed opposition, to which Millennium has replied. The matter came on regularly for hearing on April 15, 2016. Marcio Valladares of Morgan & Morgan Complex Litigation Group appeared on behalf of plaintiffs. Scott M. Voelz of O’Melveny & Myers LLP appeared on behalf of Millennium. Kevin Bringuel of LTL Attorneys LLP appeared on behalf of Whole Foods. Having considered the papers submitted in support of and in opposition to the motion, as well as the arguments of counsel at the hearing, the Court rules as follows. 22 23 24 BACKGROUND Plaintiffs Nina Pedro and Rosalind Lewis are residents of California and Washington, respectively, who seek to represent a class comprised of consumers in the 25 United States who purchased, “within two years before the date this suit was filed, any of 26 the kombucha products manufactured by [d]efendants.”1 (FAC ¶¶ 4, 8, 113.) Defendant 27 28 1 Kombucha is “an effervescent fermented drink of sweetened black tea.” (See 1 Millennium Products, Inc. manufactures “two separate lines of kombucha,” the 2 “Enlightened” line, marketed “as containing less than 0.5% alcohol,” and the “Classic” 3 line, marketed “as containing in excess of 0.5% alcohol.” (Id. ¶¶ 33-35.)2 Defendant GT 4 Dave is the founder and chief executive officer of Millennium Products, Inc. (Id. ¶¶ 17, 5 28). Defendant Whole Foods sells Millennium Products, Inc.’s kombucha to consumers. 6 (Id. ¶ 18). By the instant motion, Millennium seeks a stay of the above-titled action pending 8 resolution of another case, Retta v. Millennium Products, Inc. (hereinafter, “Retta”), filed 9 March 11, 2015, in the Central District of California,3 and in which the plaintiffs therein 10 seek to represent a class “consisting of all persons in the United States who, within the 11 United States District Court Northern District of California 7 relevant statute of limitations period, purchased Enlightened Kombucha.” (See Faria 12 Decl. Ex. A (“Retta Compl.”) ¶ 72.) The operative complaint in Retta, the Fourth 13 Amended Complaint, asserts, as against Millennium products, Inc. and Whole Foods, the 14 following four causes of action: (1) violation of the California Consumer Legal Remedies 15 Act, (2) violation of the California Unfair Competition Law (“UCL”), (3) violation of the 16 California False Advertising Law, and (4) violation of the New York Deceptive and Unfair 17 Trade Practices Act.4 18 Each cause of action asserted in Retta is based on claims that Millennium’s 19 kombucha is mislabeled with respect to both its alcohol and antioxidant content. 20 Specifically, the Retta complaint alleges that the labels on Millennium’s kombucha bottles 21 (1) pose a “serious health hazard” to consumers, as the kombucha contains more that 22 23 First Amended Complaint (“FAC”) ¶ 29.) 2 24 25 (See also id. ¶ 36 (referencing, which identifies Millennium’s four product types: “GT’s Enlightened Kombucha,” “Enlightened Synergy,” “GT’s Classic Kombucha,” and “Classic Synergy”).) 3 26 27 28 Additionally, in its reply brief Millennium takes the position that the Court should, in the alternative, transfer the case to the Central District of California. 4 The Retta plaintiffs also purport to represent New York and California subclasses of such consumers. 2 1 0.5% alcohol by volume, but the labels lack a “warning concerning alcoholic beverages” 2 and “represent[] that Enlightened Kombucha only has a ‘trace amount of alcohol’” (Retta 3 Compl. ¶¶ 90, 104, 116, 124), and (2) violate Food and Drug Administration regulations 4 regarding antioxidant content claims (id. ¶¶ 89, 103, 115, 123). According to the Retta 5 complaint, the alleged excess alcohol in Millennium’s kombucha results from the 6 products’ continued fermentation “post-bottling.”5 (Id. ¶ 22.) 7 The instant action (hereinafter, “Pedro”) was filed on November 17, 2015, and the 8 operative complaint, the First Amended Complaint, alleges the following three causes of 9 action: (1) breach of the California Consumer Warranty Act, (2) violation of the UCL, and 10 United States District Court Northern District of California 11 (3) violation of the California Consumer Legal Remedies Act. All three causes of action are, as in Retta, based on a claim that Millennium’s 12 kombucha is mislabeled with respect to its alcohol content; the first two causes of action 13 are also based on a claim that Millennium’s bottles of kombucha leak. Specifically, the 14 Pedro complaint alleges that (1) the “warning labels on [d]efendants’ kombucha 15 beverages fail[] to adequately and reasonably warn the consumers about the specific 16 alcohol content contained in the beverages” (FAC ¶ 45), and (2) the packaging cannot 17 withstand the internal pressure exerted by the high levels of carbon dioxide “byproduct[]” 18 in the kombucha, causing it to “leak, and resulting [in] spoilage” (id. ¶ 6). According to 19 the Pedro complaint, the alleged excess alcohol and leakage both result from the 20 products’ continued fermentation after bottling, which the Pedro complaint refers to as 21 “secondary fermentation.”6 22 5 23 24 25 26 27 As alleged therein: “Kombucha is made of tea that ferments for up to a month while a ‘blob’ of bacteria known as ‘scoby’ (for symbiotic colony of bacteria and yeast) floats on top. The scoby purportedly ‘eats the sugar, tannic acids, and caffeine in the tea, and creates a cocktail of live microorganisms.’ Basic chemistry explains that the scoby converts the sugar into carbon dioxide and alcohol.” (Retta Compl. ¶ 13.) As further alleged: “While Millennium claims that it has found a way to brew its Enlightened line of products such that the products never cross the 0.5 percent alcohol threshold postbottling, several rigorous independent tests show that each of the beverages in the Enlightened line contains greater than 0.5 percent alcohol by volume. . . .” (Id. ¶ 22.) 6 28 (See, e.g., FAC ¶ 119(a)(2) (alleging “kombucha beverages . . ., due [to] the SECONDARY FERMENTATION process, leak from the cap once the carbon dioxide 3 DISCUSSION 1 Millennium argues that the Court should stay or transfer the instant action 2 3 pursuant to the “first-to-file rule.” (See Def.’s Mot. at 1:12.) Alternatively, Millennium 4 argues that the Court should grant a stay pursuant to its “inherent power to manage its 5 own docket.” (See id. at 1:18.) 6 A. Whether the First-to-File Rule Applies 7 The first-to-file rule is a doctrine of federal comity that “allows a district court to 8 transfer, stay, or dismiss an action when a similar complaint has already been filed in 9 another federal court.” Alltrade, Inc. v. Uniweld Products, Inc., 946 F.2d 622, 623 (9th Cir. 1991). The rule “is designed to avoid placing an unnecessary burden on the federal 11 United States District Court Northern District of California 10 judiciary, and to avoid the embarrassment of conflicting judgments.” Church of 12 Scientology of Calif. v. U.S. Dept. of Army, 611 F.2d 738, 750 (9th Cir. 1979). Although 13 its application is discretionary, the rule “normally serves the purpose of promoting 14 efficiency well and should not be disregarded lightly.” Id. In determining whether the 15 first-to-file rule applies, a court considers the “chronology of the lawsuits, similarity of the 16 parties, and similarity of the issues.” Kohn Law Group, Inc. v. Auto Parts Mfg. 17 Mississippi, Inc., 787 F.3d 1237, 1240 (9th Cir. 2015). 18 1. 19 As the name of the rule implies, the dismissal or stay is in favor of, or the transfer Chronology 20 is to, the court presiding over the earlier-filed lawsuit. See, e.g., Alltrade, 946 F.2d at 21 623. Here, although Retta was filed more than eight months prior to the filing of Pedro, 22 plaintiffs argue that it is “equally appropriate to transfer the Retta matter to this Court” 23 because “both Retta and Pedro are first-in-time as to their respective issues (alcohol vs 24 waste and safety).” (See Pl.’s Opp. at 9:26-28.) The Court is not persuaded. Even 25 26 27 28 levels in the bottle exceed[] the pressure tolerance of the cap”); ¶ 119(a)(5) (alleging “[k]ombucha beverages . . . , due to the SECONDARY FERM[E]NTATION process, contain alcohol in excess of 0.5% and are not properly labeled as such in violation of both State and Federal law”) (emphases in original).) 4 1 disregarding the argument’s flawed premise that Pedro lacks a claim based on 2 mislabeled alcohol content, the inquiry at this point of the analysis is not concerned with 3 the issues raised in the respective complaints, but rather with “which lawsuit was filed 4 first.” See Kohn, 787 F.3d at 1240 (emphasis added). As noted, Retta was filed on 5 March 11, 2015, more than eight months prior to the date Pedro was filed. 6 Consequently, Retta was filed first. 7 8 9 Accordingly, the first prerequisite is satisfied, and the Court next considers the parties’ respective arguments as to similarity of the parties. 2. 10 Similarity of Parties a. 11 Legal Standard for Comparing Plaintiffs in Putative Class Actions United States District Court Northern District of California As an initial matter, plaintiffs contend the Court, in considering whether the 12 plaintiffs in a class action are sufficiently similar, should compare the named plaintiffs 13 rather than the putative classes.7 The Court again is unpersuaded, for the following 14 reasons. 15 First, the majority of district courts in the Ninth Circuit that have applied the first-to16 file rule in the context of a class action have compared the putative classes rather than 17 the named plaintiffs. See, e.g., Clay v. Chobani, LLC, No. 14-2258, at 10 (S.D. Cal. Aug. 18 10, 2015); Cadenasso v. Metro. Life Ins. Co., 2014 WL 1510853, at *10 (N.D. Cal. 2014); 19 Hilton v. Apple, Inc., 2013 WL 5487317, at *7 (N.D. Cal. 2013); Ruff v. Del Monte Corp., 20 2013 WL 1435230, at *3 (N.D. Cal. 2013); Ross v. U.S. Bank Nat’l Ass’n, 542 F. Supp. 21 2d 1014, 1020 (N.D. Cal. 2008); Weinstein v. Metlife, Inc., 2006 WL 3201045, at *4 (N.D. 22 Cal. 2006).8 23 24 7 25 26 27 With the exception of one defendant, George Thomas “GT” Dave (“Dave”), named in Pedro alone, the defendants in the two actions are identical. Plaintiffs do not argue the inclusion of Dave in Pedro defeats the similarity-of-parties requirement. See Kohn, 787 F.3d at 1240 (holding omission of single named defendant from one of two multiple-defendant actions “does not defeat application of the first-to-file rule”). 8 28 Plaintiffs’ sole citation in support of their position is an order issued in Le v. PriceWaterhouseCoopers LLP, 2008 WL 618938, at *1 (N.D. Cal. 2008), by which this 5 1 Second, comparison of the putative classes appears to have been implicitly 2 endorsed by the Ninth Circuit. Specifically, in support of its holding that “the first-to-file 3 rule does not require exact identity of parties,” Kohn cited Adoma v. Univ. of Phoenix, 4 Inc., 711 F. Supp. 2d 1142, 1147 (E.D. Cal. 2010), a decision in which the district court 5 considered the applicability of the first-to-file rule in the context of a class action brought 6 by a different named plaintiff than the named plaintiff in an earlier-filed class action, and 7 concluded the “classes, and not the class representatives, are compared.” See id.; Kohn, 8 787 F.3d at 1240. 9 Third, as one district court has observed, “[i]f the first-to-file rule were to require a strict comparison only of the named plaintiffs in the two actions, the rule would almost 11 United States District Court Northern District of California 10 never apply in class actions.” See Hilton, 2013 WL 5487317, at *7. Given that class 12 actions are “frequently complex affairs which tax judicial resources,” and thus constitute 13 “the very cases in which the principles of avoiding duplicative proceedings and 14 inconsistent holdings are at their zenith,” such “result would be in direct conflict to the 15 purposes of the first-to-file rule.” Id. 16 17 18 19 For all of the above reasons, the Court finds it appropriate to compare the putative classes in Retta and Pedro. b. Similarity of the Putative Classes in Retta and Pedro The complaints in both Retta and Pedro assert claims on behalf of a nationwide 20 class of consumers of Millennium’s kombucha. Although, in their opposition, plaintiffs did 21 not argue that the composition of the respective putative classes in Retta and Pedro are 22 23 24 25 26 27 28 Court denied without prejudice a first-to-file motion, where the named plaintiffs in the two actions were different and a motion to certify a class in the earlier filed action had been heard but not yet decided. As the Court stated on the record at the hearing on the instant motion, however, the distinction between a putative and certified class was not raised in Le, and the procedural posture of that case and the instant case are distinguishable. Moreover, in the same order on which plaintiffs rely, the Court directed the parties to show cause why the case should not be transferred pursuant to 28 U.S.C. § 1404, and subsequently transferred the case to the district in which the earlier-filed action was pending. 6 1 dissimilar, 9 at the hearing, plaintiffs pointed out that the putative Retta class is limited to 2 purchasers of “Enlightened” beverages, whereas the putative Pedro class extends more 3 broadly to purchasers of either “Enlightened” or “Classic” beverages. 4 Any such distinction is not, however, dispositive. As the Ninth Circuit has held, the 5 first-to-file rule requires “only substantial similarity of parties,” not “exact identity of 6 parties.” Kohn, 787 F.3d at 1240. Applying this principle, district courts have required 7 only that the classes “represent at least some of the same individuals.” See Clay, No. 8 14-2258, at 10 (finding parties sufficiently similar, where class in one action included all 9 United States consumers, whereas class in other action included only California consumers); Adoma, 711 F. Supp. 2d at 1144-45, 1148 (finding similarity-of-parties 11 United States District Court Northern District of California 10 “prerequisite” was “satisfied,” where one action was brought on behalf of nationwide class 12 of “all academic and enrollment counselors employed by defendants,” and other action 13 was brought on behalf of “all persons in California who worked as enrollment 14 counselors”). 15 Plaintiffs have neither identified a case in which a more restrictive standard was 16 applied, nor explained why the Court should adopt a stricter standard here. As in the 17 above-cited cases, the classes in Retta and Pedro are sufficiently similar, as the Pedro 18 plaintiffs include all of the Retta plaintiffs, plus those consumers who purchased one or 19 more bottles of Millennium’s “Classic” kombucha. 20 21 Accordingly, the second prerequisite is met, and the Court next considers the similarity of the issues presented in Retta and Pedro. 22 3. 23 As with the parties, the issues in both cases likewise “need not be identical, only 24 substantially similar.” Kohn, 787 F.3d at 1240. “To determine whether two suits involve Similarity of Issues 25 26 27 28 9 Plaintiffs did argue in their opposition, as well as at the hearing, that the classes are dissimilar because Pedro, unlike Retta, includes a request for injunctive relief. Such alleged difference, however, is properly addressed in the context of the third factor, similarity of the issues. 7 1 substantially similar issues, [courts] look at whether there is substantial overlap between 2 the two suits.” Id. at 1241. 3 Retta and Pedro overlap as to the alcohol mislabeling claim, but each action has 4 one additional basis for liability that the other does not have, namely, the antioxidant 5 claim in Retta and the leakage claim in Pedro. Plaintiffs contend the presence of the 6 leakage claim in Pedro renders the first-to-file rule inapplicable because “the gravamen of 7 Retta is that [d]efendants sell a product that is improperly labeled,” and, according to 8 plaintiffs, although Pedro does “include some discussion of alcohol” mislabeling, the 9 “waste and product safety complaints are at [its] heart.” (See Pl.’s Opp. at 6:17-7:18.) 10 At the outset, the Court notes, as discussed at the hearing, plaintiffs’ assessment United States District Court Northern District of California 11 of the importance of the alcohol mislabeling claim in Pedro is inaccurate. The alcohol 12 claim is featured just as prominently in the Pedro complaint as is the leakage claim, if not 13 more so, given that two of the asserted causes of action are predicated on both alcohol 14 mislabeling and leakage, and the third is predicated solely on alcohol mislabeling. 15 Moreover, where claims in the earlier and later-filed lawsuits implicate “common 16 fact[s],” see Adoma, 711 F. Supp. 2d at 1149, courts have found those lawsuits present 17 similar issues. 18 2006), for example, the district court rejected an argument that a tort claim, arising out of 19 contract negotiations and asserted in a later-filed action for fraud and breach of contract 20 but not in the earlier-filed action for breach of contract alone rendered the two lawsuits 21 dissimilar. See id. at 1099 (finding similarity of issues, where two suits were “intimately 22 intertwined” due to shared “factual and legal considerations” and “key dispute”). 23 In v. Martindale-Hubbell, 420 F. Supp. 2d 1093 (N.D. Cal. Likewise, the district court in Adoma considered whether the case before it, which 24 included claims for unpaid, off-the-clock overtime based on an alleged “dual bookkeeping 25 system,” as well as an additional claim that “free tuition to employees . . . was not 26 included in determining the employees’ rate of pay,” substantially overlapped with an 27 earlier-filed suit for uncompensated overtime brought on behalf of a similar set of 28 employees who did “not proceed on a dual bookkeeping” claim or a free tuition claim. 8 1 711 F. Supp. 2d at 1145, 1148-49. Reasoning that the “central question” in both cases 2 was “whether a class is entitled to compensation for unpaid, off-the-books overtime,” and 3 further, that it could not resolve the central question “without addressing the common 4 factual issues implicated in both cases,” the district court concluded that the issues 5 presented were similar, despite the fact that the later-filed action exceeded the scope of 6 the first-filed action. See id. at 1149. As with the second Kohn factor, similarity of 7 parties, the Adoma court’s reasoning as to the third factor, similarity of issues, appears to 8 have been implicitly endorsed by the Ninth Circuit in Kohn, which again cited Adoma, in 9 this instance for the proposition that “the issues in both cases also need not be identical.” 10 United States District Court Northern District of California 11 See Kohn, 787 F.3d at 1240-41. Here, in addition to sharing the alcohol mislabeling claim, Retta and Pedro share a 12 “central question” and “common factual” underpinnings. See Adoma, 711 F. Supp. 2d at 13 1149. In particular, the plaintiffs in both Retta and Pedro raise the question of whether 14 their respective consumer classes are entitled to compensation because Millennium’s 15 kombucha products failed to meet reasonable consumer expectations as to qualities that 16 were both expressly and impliedly promised by Millennium. Moreover, as defendants 17 point out, that question cannot be resolved as to the alcohol mislabeling and leakage 18 claims without addressing common factual issues, such as the composition of 19 Millennium’s kombucha and the chemistry of kombucha’s secondary fermentation 20 process, the latter of which produces both the excess alcohol that allegedly causes the 21 products to be mislabeled and the carbon dioxide that allegedly causes the leakage. 22 Relying on Adoma, plaintiffs argue that the two actions are dissimilar because the 23 plaintiffs in Retta seek only damages, while the plaintiffs in Pedro seek both damages 24 and injunctive relief. Plaintiffs’ argument fails at the outset, however, because the Retta 25 plaintiffs also seek injunctive relief. (See Retta Compl. ¶ 98.) Moreover, the Ninth Circuit 26 has found “the first to file rule is applicable” where “two actions differ only as to the 27 remedy sought.” Pacesetter Systems, 678 F.2d at 94, 95-96 (upholding district court’s 28 application of first-to-file rule where earlier-filed action sought “injunctive relief and 9 1 damages” and later-filed action sought “declaratory judgment”). Lastly, at the hearing, plaintiffs pointed out that in Adoma, the court determined not 2 3 to dismiss, stay, or transfer the later-filed case, based in part on the fact that the plaintiffs 4 sought relief that was not sought in the earlier-filed action. See Adoma, 711 F. Supp. 2d 5 at 1150.10 Prior to such determination, however, the Adoma court found the issues 6 presented by the two actions, despite any differences as to the relief sought, were similar, 7 and that “the first-to-file rule might well apply in [the] case.” Id. at 1149. Nonetheless, 8 noting “the doctrine is discretionary,” the court then went on to consider an “exception” 9 based on “the interests of equity,” and, ultimately, found the plaintiffs therein had demonstrated a number of circumstances existed, the “totality” of which weighed against 11 United States District Court Northern District of California 10 application of the rule. Id. at 1150. Plaintiffs here have neither argued nor shown that 12 the collective equities weigh against application of the rule. As both Retta and Pedro implicate the alcohol mislabeling theory, raise the central 13 14 question of defects in Millennium’s kombucha, and implicate the underlying facts of 15 secondary fermentation, the issues presented in the two cases are similar. Accordingly, 16 the third prerequisite is satisfied, and the first-to-file rule applies.11 17 B. 18 Whether to Transfer or Stay the Case Having found the first-to-file rule applicable, the Court turns to the question of 19 whether to “transfer [or] stay” the instant action. Alltrade, 946 F.2d at 623. As discussed 20 by the Court on the record at the hearing, a transfer is preferable to a stay, for several 21 reasons. 22 First, a transfer would better serve the first-to-file doctrine’s objectives of efficiency 23 and avoiding inconsistent judgments. If Pedro is transferred rather than stayed, the 24 leakage and alcohol mislabeling claims, which have considerable factual overlap, could 25 10 26 27 28 The Adoma plaintiffs sought relief under California law, “which requires entirely different calculations for overtime compensation.” Id. at 1150. 11 In light of such finding, the Court does not reach Millennium’s alternative argument that the case should be stayed pursuant to the Court’s inherent power. 10 be tried together rather than to two juries, and the alcohol mislabeling claims would only 2 have to be tried once. Moreover, consolidating the cases before one tribunal is the only 3 way to ensure against inconsistent interlocutory rulings, as this Court will not be bound by 4 the rulings of the Retta court, see Cadenasso v. Metro. Life Insurance Co., 2014 WL 5 1510853, at *11 (N.D. Cal. 2014) (finding transfer, rather than stay, “most appropriate” 6 because decision of another district court “would not be binding”), and consolidating the 7 cases is the only way to ensure against inconsistent ultimate outcomes, as claim and/or 8 issue preclusion will not bar any members of the Pedro class who either purchased the 9 “Classic” version of Millennium’s kombucha or chose to opt out of the Retta class, see 10 Richards v. Jefferson Cty., 517 U.S. 793, 794 (1996) (holding “it would violate the Due 11 United States District Court Northern District of California 1 Process Clause . . . to bind litigants to a judgment rendered in an earlier litigation to 12 which they were not parties and in which they were not adequately represented”). 13 14 15 Second, if transferred, the leakage claim would proceed on a regular schedule rather than languish in this district, awaiting litigation after Retta has concluded. Third, stays are disfavored where, as here, the plaintiff seeks an award of 16 injunctive relief. Cf. Lockyer v. Mirant Corp., 398 F. 3d 1098, 1112 (9th Cir. 2005) (noting 17 fact that plaintiff sought “injunctive relief against ongoing and future harm” weighed 18 against imposing stay); CMAX, Inc. v. Hall, 300 F.2d 265, 268-69 (9th Cir. 1962) 19 (upholding district court’s imposition of stay, where stay would result, at worst, in “delay” 20 of plaintiff’s receipt of “money damages”). 21 Millennium in its motion argues that a transfer may be inefficient because Retta 22 has progressed somewhat further than Pedro. Retta, however, remains in its early 23 stages. As of the time of the filing of the instant motion, Whole Foods had not yet 24 answered the Retta complaint, and a review of the Retta docket shows that, although 25 said defendant has now moved to dismiss, such motion will not be heard until July 25, 26 2016.12 27 12 28 Although a trial date has been set in Retta, at the hearing on the instant motion, the parties informed the Court that a deadline for the filing of a motion for class 11 1 Accordingly, the Court will transfer rather than stay the instant action. CONCLUSION 2 3 4 5 6 7 For the reasons stated above, Millennium’s Motion to Stay is hereby GRANTED in part and DENIED in part, as follows. 1. To the extent Millennium seeks a stay of the above-titled action, the motion is hereby DENIED. 2. To the extent Millennium seeks a transfer of the above-titled action, the motion 8 is hereby GRANTED, and the above-titled action is hereby TRANSFERRED to the United 9 States District Court for the Central District of California. 10 United States District Court Northern District of California 11 IT IS SO ORDERED. Dated: May 27, 2016 MAXINE M. CHESNEY United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 certification had not, as of that date, been set. 12

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