Asghari v. Volkswagen Group of America, Inc. et al

Filing 62

ORDER GRANTING 23 MOTION TO TRANSFER. Signed by Judge Claudia Wilken on 3/26/2013. (ndr, COURT STAFF) (Filed on 3/26/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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YUNG KIM,

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No. C 12-1156 CW
No. C 12-2177 CW
Plaintiff,
ORDER GRANTING
MOTIONS TO
TRANSFER (Docket
No. 23 in 12-2177;
Docket No. 11 in
12-1156)

v.
VOLKSWAGEN GROUP OF AMERICA, INC.
and AUDI OF AMERICA,
Defendants.
________________________________/

United States District Court
For the Northern District of California

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ALI ASGHARI, AUGUSTINO LAMIA,
BARBARA CALVER, SUPALAK
PRASOBRATANA, and DANIEL TRAN,
Plaintiffs,

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v.

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VOLKSWAGEN GROUP OF AMERICA,
INC., VOLKSWAGEN AG, and AUDI AG,

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Defendants.
________________________________/

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Plaintiffs in these related cases filed separate class

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actions alleging that Defendants Volkswagen Group of America, Inc.

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(VWGoA), Volkswagen AG, and Audi AG manufactured cars with

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defective oil consumption systems.

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transfer each case to the Central District of California.

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Plaintiffs oppose the motions.

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submission on the papers and now grants both motions.

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Defendant VWGoA moves to

The Court took the matter under

BACKGROUND
VWGoA is a New Jersey corporation with its principal place of

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business in Virginia.

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resident of Los Angeles, filed a putative class action against

In February 2012, Plaintiff Yung Kim, a

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VWGoA and “Audi of America”1 in Alameda County Superior Court.

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Case No. 12-1156 (Kim), Docket No. 1.

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case to this district in March 2012, id., and moved to transfer

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the action to the Central District of California on May 11, 2012.

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The briefing and hearing on this motion was continued repeatedly

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by stipulation of the parties.

VWGoA timely removed the

Kim, Docket Nos. 30, 37, 40.

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Meanwhile, on May 1, 2012, Plaintiff Ali Asghari, also a

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resident of Los Angeles, filed a second putative class action

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against VWGoA, Audi AG, and Volkswagen AG in this district.

Case

United States District Court
For the Northern District of California

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No. 12-2177 (Asghari), Docket No. 1.

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the Court granted Asghari’s motion to relate his case to Kim.

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Asghari, Docket No. 7; Kim, Docket No. 25.

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One month later, on June 5,

On August 10, 2012, Asghari filed an amended complaint in

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which he added four other named Plaintiffs: Augustino Lamia,

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Barbara Calver, Supalak Prasobratana, and Daniel Tran.

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Docket No. 17.

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where the newly added Plaintiffs reside, the parties have since

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acknowledged that Lamia is the only Plaintiff who resides in this

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district.

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Asghari,

Although the amended complaint does not specify

On October 3, 2012, VWGoA moved to transfer Asghari to the

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Central District of California.

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scheduled the motion to be heard concurrently with the pending

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motion to transfer in Kim.

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November 2012 along with VWGoA’s motions to dismiss, but the

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parties have stipulated to continue the briefing and hearing dates

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several times since then.

Docket No. 23.

The Court

The motions were set for hearing in

Asghari, Docket Nos. 14, 20, 38, 45.

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VWGoA has represented that “Audi of America” is an
“unincorporated division of VWGoA.” Kim Mot. Transfer 1 n.1.

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LEGAL STANDARD
A district court may grant a discretionary change of venue

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pursuant to 28 U.S.C. § 1404(a), which provides: “For the

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convenience of parties and witnesses, in the interest of justice,

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a district court may transfer any civil action to any other

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district or division where it might have been brought.”

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statute identifies three basic factors for district courts to

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consider in determining whether a case should be transferred:

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(1) convenience of the parties; (2) convenience of the witnesses;

The

United States District Court
For the Northern District of California

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and (3) the interests of justice.

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identified numerous additional factors a court may consider in

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determining whether a change of venue should be granted:

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The Ninth Circuit has

(1) the location where the relevant agreements were
negotiated and executed, (2) the state that is most
familiar with the governing law, (3) the plaintiff’s
choice of forum, (4) the respective parties’ contacts
with the forum, (5) the contacts relating to the
plaintiff’s cause of action in the chosen forum, (6) the
differences in the costs of litigation in the two
forums, (7) the availability of compulsory process to
compel attendance of unwilling non-party witnesses, and
(8) the ease of access to sources of proof.
Jones v. GNC Franchising Inc., 211 F.3d 495, 498–99 (9th Cir.
2000).
The burden is on the movant to show that the convenience of
parties and witnesses and the interests of justice require
transfer to another district.

Commodity Futures Trading Comm’n v.

Savage, 611 F.2d 270, 279 (9th Cir. 1979).

The Supreme Court has

ruled that the § 1404(a) analysis should be an “individualized,
case-by-case consideration of convenience and fairness.”
Dusen v. Barrack, 376 U.S. 612, 622 (1964).

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Van

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DISCUSSION

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The parties do not dispute that both of these actions could

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have been brought in the Central District of California.

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following discussion therefore focuses solely on whether

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transferring these cases to that district would benefit the

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parties, non-party witnesses, and the interests of justice.

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I.

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The

Kim
None of the three factors identified in § 1404(a) favor

laying venue in this district.

The sole Plaintiff in Kim resides

United States District Court
For the Northern District of California

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in Los Angeles and has no apparent ties to Northern California.

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He leased his allegedly defective car from a dealership in Los

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Angeles and had it serviced there several times.

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who serviced the vehicle, who may be called to testify in this

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action, all live and work in the Los Angeles area.

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is located in Los Angeles.

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maintain offices in Los Angeles.

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Plaintiff and the non-party witnesses both weigh in favor of

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transferring this case to the Central District of California.2

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The mechanics

The car itself

And attorneys for both parties
Thus, the convenience of

Plaintiff Kim contends that the interests of justice and his

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choice of forum both counsel against transfer here because this

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case is a putative class action.

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expressly held that the opposite is true: “Although great weight

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is generally accorded plaintiff’s choice of forum, when an

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individual brings a derivative suit or represents a class, the

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named plaintiff’s choice of forum is given less weight.”

The Ninth Circuit, however, has

Lou v.

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The convenience of VWGoA is a neutral factor because, as noted
above, VWGoA’s offices are located in Virginia. The other Defendants
named in this action have not opposed the motion to transfer.

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Belzberg, 834 F.2d 730, 739 (9th Cir. 1987) (citations omitted;

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emphasis added); see also Lucas v. Daiichi Sankyo Co., Inc., 2011

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WL 2020443, at *3 (N.D. Cal.) (“[The plaintiff]’s choice of forum

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in this action is entitled to reduced deference because he seeks

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to represent a class and he has filed his complaint in a district

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outside of the district in which he is domiciled.”) (citing Lou,

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834 F.2d at 739).

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Kim has not produced any evidence to rebut VWGoA’s evidence
that the Central District of California is a more convenient forum

United States District Court
For the Northern District of California

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for litigating this dispute.

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decision in his opposition and has not identified a single party

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or witness who would be harmed by transferring this case.3

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Accordingly, VWGoA’s motion is granted.

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Volkswagen Group of America, Inc., 2012 WL 4675047, at *3 (N.D.

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Cal.) (“Here, Ms. Shabani brings a class action; she does not

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reside in the district; and no event underlying her claims is

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alleged to have occurred in the district, and no known witnesses

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to those events reside in the district . . . .

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heavily against her choice of this district as the forum for this

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action.” (citations omitted)).

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II.

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He does not cite a single federal

See, e.g., Shabani v.

These facts weigh

Asghari
Transfer presents a closer question in Asghari than in Kim

because one of the newly named Plaintiffs in Asghari actually

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Kim also seems to suggest that VWGoA effectively chose to
litigate in this district by removing the case from state court. To the
extent that this is intended as an argument against transfer, it is
rejected. See IBC Aviation Servs., Inc. v. Compania Mexicana de
Aviacion, S.A. de C.V., 125 F. Supp. 2d 1008, 1013 (N.D. Cal. 2000) (“It
is clearly established that timely removal to federal court does not
waive a defendant’s right to raise venue objections.”).

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lives in this district.

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Plaintiffs and non-party witnesses reside in or near the Central

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District -- and because Asghari himself asked that this case be

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related to Kim, which is being transferred to the Central

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District -- the Court finds that Asghari should be transferred, as

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well.

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However, because the majority of named

As in Kim, the convenience of the parties weighs slightly in

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favor of transfer here.

Four of the five named Plaintiffs reside

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in southern California.

Cf. Peralta v. Countrywide Home Loans,

United States District Court
For the Northern District of California

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Inc., 2009 WL 3837235, at *8 (N.D. Cal.) (granting motion to

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transfer where two of three named plaintiffs in a class action

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lived in the Central District of California).

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parties’ attorneys have offices in Los Angeles.

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WL 2020443, at *3 (transferring a case to the Central District

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because “litigating the case in the district in which [the

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plaintiff] and counsel for parties are located will be

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substantially more convenient”).

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sufficient to establish that the Central District is a more

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convenient forum for the parties.

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In addition, the
See Lucas, 2011

Taken together, these facts are

The second factor -- convenience of non-party witnesses --

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also weighs in favor of transfer here.

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twelve non-party4 witnesses who reside in the Los Angeles area and

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may be called to testify about maintenance they performed on

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Plaintiffs’ cars.

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offer “cumulative” or redundant testimony, as Plaintiffs contend,

VWGoA has identified

Even if some of these witnesses would only

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Asghari contends in his brief that these are not “non-party”
witnesses because they work at dealerships that sell Audi vehicles. The
witnesses’ declarations make clear, however, that they are not employed
by Audi or Volkswagen and, thus, are not party witnesses in this case.

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the number of witnesses residing in the Central District would

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still be greater than the number of witnesses who reside in this

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district.

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in this district, which means that the non-party witnesses who

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seek to inspect Plaintiffs’ vehicles will typically have to travel

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outside of the district to do so.

As noted above, only one out of five Plaintiffs lives

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Although Plaintiffs argue that venue in this district is

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proper because the district houses a VWGoA research facility, they

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have not explained why this facility is relevant to the instant

United States District Court
For the Northern District of California

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case.

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employees will be called as witnesses here.

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suggested that any physical evidence from the facility will be

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introduced.

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one of its research managers asserting that the facility does not

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conduct any research related to the oil consumption system that

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Plaintiffs allege is defective here.

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Arturi ¶ 3.

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declaration from the same research manager in a similar class

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action against VWGoA, found that the location of the VWGoA

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facility did not preclude a transfer to the Central District.

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Shabani, 2012 WL 4675047, at *3 (“This laboratory indeed is

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located within this district, but [VWGoA] puts forth evidence

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suggesting that the laboratory has nothing to do with the Class

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Vehicles as they relate to [the plaintiff]’s claims.”).

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Plaintiffs have failed to counter VWGoA’s showing that

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transferring Asghari to the Central District would benefit the

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non-party witnesses in this case.

Plaintiffs have not suggested that any of the facility’s
Nor have they

VWGoA, meanwhile, has submitted a declaration from

Declaration of Robert A.

Another court in this district, when presented with a

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Thus,

See

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Plaintiffs contend that their choice of forum should be
afforded some deference.

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afforded limited deference here because Plaintiffs seek to

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represent a class.

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less weight because, when this forum was initially chosen, the

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sole Plaintiff in the case resided outside of this district.

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Lucas, 2011 WL 2020443, at *2 (“[T]he plaintiff’s selection of

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forum has minimal value where the plaintiff is not a resident of

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the judicial district in which the suit commenced.”).

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United States District Court
For the Northern District of California

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that Plaintiff Lamia, a resident of this district, was

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subsequently added to the complaint does not retroactively change

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the circumstances under which the initial forum selection decision

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was made.

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As in Kim, however, that choice is

Lou, 834 F.2d at 739.

The choice also carries

See

The fact

Thus, in light of the limited deference afforded to

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Plaintiffs’ forum choice, the relative convenience that would be

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afforded to most parties and witnesses, the residence of counsel,

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and the fact that Kim will also be transferred, the Court grants

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VWGoA’s motion to transfer Asghari to the Central District.

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III. Evidentiary Objections

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Plaintiffs in Asghari object to VWGoA’s reliance on Shabani,

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2012 WL 4675047, in its reply brief.

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They have styled their objection as an “objection to reply

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evidence” under Civil Local Rule 7-3(d).

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decision, however, does not constitute “reply evidence”: it is a

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publicly available judicial decision and, as such, may be cited as

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authority in a reply brief.

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Asghari, Docket No. 42.

Id.

The Shabani

Even if Shabani did somehow constitute reply evidence,
Plaintiffs’ objection would still fall short.
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VWGoA has cited

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Shabani to address specific arguments raised in Plaintiffs’

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opposition.

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Shabani and, thus, should have been aware that VWGoA might cite

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the decision if Plaintiffs raised arguments here that were

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specifically rejected in that case.

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have effectively used their evidentiary objection as an

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unauthorized sur-reply -- in which they attempt to distinguish

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Shabani’s holding on the merits -- they have not been prejudiced

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by VWGoA’s reliance on the decision.

United States District Court
For the Northern District of California

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Plaintiffs’ counsel represented the plaintiffs in

Their objection is therefore

overruled.

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Moreover, because Plaintiffs

CONCLUSION
For the reasons set forth above, VWGoA’s motions to transfer

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(Docket No. 11 in Kim, 12-1156; Docket No. 23 in Asghari, 12-2177)

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are GRANTED.

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While the Court is normally reluctant to transfer cases that

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have remained pending in this district for as long as Kim and

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Asghari have, these cases present unique circumstances.

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above, the parties have filed numerous stipulations to continue

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the briefing and hearing dates in this matter and both cases

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remain at a relatively early stage in the litigation.

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because the Central District of California will provide a more

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convenient forum for the parties, their counsel, and non-party

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witnesses, the Court finds that transferring these cases to that

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district is appropriate.

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the Court defers to the newly assigned judge to rule on them.

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as is likely, the complaints are dismissed at least in part with

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leave to amend, it will be more efficient for the trial judge to

As noted

Thus,

Although motions to dismiss are pending,

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If,

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rule on the sufficiency of any amendments.

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transfer the files.

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The Clerk shall

IT IS SO ORDERED.

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Dated: 3/26/2013

CLAUDIA WILKEN
United States District Judge

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United States District Court
For the Northern District of California

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