Gilbert v. Wells Fargo Bank, N.A.
Filing
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ORDER GRANTING DEFENDANTS 14 MOTION TO TRANSFER VENUE ON GROUNDS OF FORUM NON CONVENIENS. Signed by Judge Claudia Wilken on 10/28/2011. (ndr, COURT STAFF) (Filed on 10/28/2011)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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United States District Court
For the Northern District of California
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ERIC GILBERT, on behalf of
himself and all others similarly
situated,
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Plaintiff,
v.
WELLS FARGO BANK, N.A. and DOES
1-50, inclusive,
No. C 11-2856 CW
ORDER GRANTING
DEFENDANT’S MOTION
TO TRANSFER VENUE
ON GROUNDS OF
FORUM NON
CONVENIENS (Docket
No. 14)
Defendant.
________________________________/
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Plaintiff Eric Gilbert has filed the present lawsuit in the
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Northern District of California, alleging a collective action
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under the Fair Labor Standards Act, 29 U.S.C. § 216(b), as well as
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class claims under Nevada Revised Statute sections 608.018 and
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608.020-608.050.
Defendant Wells Fargo Bank, N.A. moves to
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transfer the action to the Las Vegas division of the District
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Court of Nevada on forum non conveniens grounds.
BACKGROUND
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Plaintiff was employed as a Business Sales Officer (BSO) by
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Wells Fargo from December 2007 through August 2010.
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of Kathryn Deits at ¶ 3.
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failed to pay to him and other similarly situated BSOs the legally
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Declaration
Plaintiff alleges that Wells Fargo
required overtime premium.
Plaintiff seeks to represent BSOs who
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are currently employed, or were formerly employed, by Wells Fargo
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United States District Court
For the Northern District of California
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from June 10, 2008 through the date judgment is rendered in the
present lawsuit.
Throughout his period of employment Plaintiff worked in Las
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Vegas, Nevada.
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Florida.
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approximately 115 BSOs who work in seventeen different states.
Id.
Deits Dec. at ¶ 3.
Currently he resides in
At the present time Well Fargo employs
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Id. at ¶ 4.
As of September 15, 2011, no BSOs are employed in
California.
Id.
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Neither Wells Fargo nor Plaintiff disclose how
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many BSOs have been employed in California during the class period
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and presently reside in the Northern District of California.
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greatest number of BSOs have been employed in Texas, with twenty-
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three BSOs employed there between July 2007 through the present.
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Id.
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The
The next greatest number of BSOs, sixteen, has been employed
in Arizona during the same time period.
Id.
Ten BSOs have either
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worked or presently work in Nevada.
Id.
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In general, BSOs are organized regionally, with each BSO
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reporting to a Business Banking Manager (BBM).
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Within each region, BBMs report to one or two levels of Regional
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Id. at ¶ 5.
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Presidents.
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BBM, who also worked in Las Vegas and continues to reside there.
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Id. at ¶ 3.
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located in Reno, Nevada.
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Nevada is Kirk Clausen, who is based in Las Vegas.
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Id.
Plaintiff reported to Tom Lagomarsini, a former
The current BBM for Nevada is Chad Osorno, who is
Id.
The current Regional President for
Id. at ¶ 5.
Clausen reports to a different Regional President, Gerrit Van
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Huisstede, who is located in Phoenix, Arizona.
Id.
Van Huisstede
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oversees several states, including Nevada and Arizona.
Id.
United States District Court
For the Northern District of California
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Regional Presidents are based in the Northern District of
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California, and only one is based in California.
No
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Id.
Key operational and administrative personnel who are
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responsible for Wells Fargo’s payroll practices and company
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policies and procedures with regard to BSOs are located outside of
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California.
Id. at ¶ 6.
A manager based in Arizona handles
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training for all BSOs.
Id. at ¶ 9.
Likewise, the recruiter
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responsible for speaking to potential BSOs in the Nevada region is
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located in Arizona, as are individuals who maintain and manage
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personnel files.
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Id. at ¶¶ 7-8.
LEGAL STANDARD
Title 28 U.S.C. § 1404(a) provides, “For the convenience of
the parties and witnesses, in the interest of justice, a district
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court may transfer any civil action to any other district or
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division where it might have been brought.”
A district court has
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broad discretion to adjudicate motions for transfer on a case-by-
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case basis, considering factors of convenience and fairness.
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See
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Stewart Org. Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988); Sparling
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v. Hoffman Constr. Co., 864 F.2d 635, 639 (9th Cir. 1988).
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Factors the court may consider include (1) the plaintiff's choice
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of forum; (2) convenience of the parties; (3) convenience of the
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witnesses; (4) relative ease of access to the evidence;
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(5) familiarity of each forum with the applicable law;
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(6) feasibility of consolidation with other claims; (7) any local
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interest in the controversy; and (8) the relative court congestion
Saleh v. Titan Corp., 361
United States District Court
For the Northern District of California
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and time to trial in each forum.
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F. Supp. 1152, 1156 (N.D. Cal. 2005) (citing Jones v. GNC
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Franchising, Inc., 211 F.3d 495, 498–99 (9th Cir. 2000), and
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Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th
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Cir. 1986)).
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The movant bears the burden of justifying the transfer by a
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strong showing of inconvenience.
Decker Coal, 805 F.2d at 843.
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The motion may be denied if the increased convenience to one party
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is offset by the added inconvenience to the other party.
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a general rule, the plaintiff's choice of forum is given
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significant weight and will not be disturbed unless other factors
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weigh substantially in favor of transfer.
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§ 1404(a).
Id.
As
See 28 U.S.C.
However, the plaintiff's selection of forum has
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minimal value where the plaintiff is not a resident of the
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judicial district in which the suit commenced.
Armstrong v. Home
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Depot U.S.A., Inc., 1996 WL 382895, *1 (N.D. Cal.) (citing Grubs
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v. Consolidated Freightways, Inc., 189 F. Supp. 404, 409 (D. Mont.
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1960) and Pacific Car & Foundry Co. v. Pence, 403 F.2d 949, 954
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(9th Cir. 1968)).
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class, its choice of forum is given less weight.
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834 F.2d 730, 739 (9th Cir. 1987).
In addition, when the plaintiff represents a
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Lou v. Belzberg,
DISCUSSION
The parties do not dispute that the action could have been
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filed in the Nevada district court.
Rather, Plaintiff’s principle
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argument is that transfer to Nevada is unwarranted because
United States District Court
For the Northern District of California
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(1) forums in Arizona and Texas are the most and more convenient,
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respectively, compared to the district of Nevada and (2) those
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fora lacked jurisdiction over Plaintiff’s lawsuit under 28
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U.S.C. § 1391(b)(1).
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requirements of jurisdiction under § 1391(b)(1),1 Plaintiff’s
In addition to misunderstanding the
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Section 1391(b) states in full:
A civil action wherein jurisdiction is not founded
solely on diversity of citizenship may, except as
otherwise provided by law, be brought only in (1) a
judicial district where any defendant resides, if all
defendants reside in the same State, (2) a judicial
district in which a substantial part of the events or
omissions giving rise to the claim occurred, or a
substantial part of property that is the subject of
the action is situated, or (3) a judicial district in
which any defendant may be found, if there is no
district in which the action may otherwise be brought.
Plaintiff appears to overlook § 1391 (c), providing that for
purposes of venue “a defendant that is a corporation is deemed to
reside in any judicial district in which it is subject to personal
jurisdiction at the time the action is commenced,” 28 U.S.C.
§ 1391(c), and, furthermore, that a corporation may be subject to
personal jurisdiction outside of the district in which its
headquarters are based. Thus, it appears that the suit could have
been brought in Arizona or Texas.
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arguments as to the relative convenience of fora in Arizona and
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Texas compared to Nevada and the Northern District of California
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are irrelevant.
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on the relative convenience of Plaintiff’s chosen forum compared
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to the forum Defendant seeks.
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The determination of a motion to transfer turns
Setting aside Plaintiff’s principle argument, the Jones
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factors weigh in favor of transferring the present action to the
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District of Nevada.
First, as noted above, Plaintiff’s choice of
United States District Court
For the Northern District of California
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forum is entitled to minimal deference because Plaintiff has
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alleged class claims, as well as a collective action under the
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FLSA, and Plaintiff is not a resident of this district.
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this factor does not favor hearing the present lawsuit in this
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district.
Thus,
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Second, the convenience of the parties favors pursuing this
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case in Nevada.
Although Plaintiff resides in Florida, and it may
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be marginally easier to fly to this district than to Nevada, no
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BSOs are currently employed in California.
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established or even alleged that a significant number BSOs were
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employed in California during the class period and currently
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reside in this district.
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Nor has Plaintiff
In contrast, twenty-six BSOs have been
employed in Nevada and Arizona, in closer proximity to the
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District of Nevada than to the Northern District of California.
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The third Jones factor, convenience of the witnesses, also
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supports transferring the case to the District of Nevada, Las
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Vegas division.
Defendant has attested to a chain-of-command that
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is largely Nevada-based.
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in Arizona, which is closer to Las Vegas than to this district.
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Although Plaintiff asserts that Wells Fargo’s headquarters are
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located in this district, he fails to identify any particular
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witnesses who are based at Wells Fargo’s San Francisco
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In addition, key personnel are located
headquarters who will be required to testify.
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The fourth factor, the ease of access to evidence, apart from
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witness testimony, does not favor either district because it
United States District Court
For the Northern District of California
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appears that the records are based in Arizona and modern
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technology eases access through the electronic transfer of
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documentary evidence.
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The fifth and seventh factors support transferring the action
to Nevada because the district court in Las Vegas is more likely
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to be familiar with the law applicable to Plaintiff’s claims under
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Nevada statutory law and that state has a greater interest in
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enforcement of its own laws than does California.
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not plead any claims under California law.
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Plaintiff has
The sixth factor, the feasibility of consolidation with other
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claims, is irrelevant to this lawsuit and is not argued by either
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party.
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As to the final factor, the parties make no arguments
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regarding the relative congestion of the courts in either
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district.
Nevertheless Defendant correctly asserts that the
interests of judicial economy may be served by hearing the case in
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Nevada, where the judiciary has greater expertise over its own
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state law.
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In sum, six of the seven Jones factors that apply to the
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present case favor transferring this action to the District of
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Nevada, Las Vegas division.
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CONCLUSION
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Defendant’s motion to transfer is granted.
Docket No. 14.
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The Clerk shall transfer the file to the District of Nevada, Las
United States District Court
For the Northern District of California
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Vegas division.
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13, 2011 is VACATED.
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The case management conference set for December
IT IS SO ORDERED.
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Dated: 10/28/2011
CLAUDIA WILKEN
United States District Judge
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