Wellens et al v. Daiichi Sankyo, Inc.

Filing 42

ORDER by Judge Claudia Wilken DENYING DEFENDANT'S 23 MOTION TO TRANSFER VENUE (ndr, COURT STAFF) (Filed on 6/25/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SARA WELLENS, KELLY JENSEN,
JACQUELINE PENA, BERNICE
GIOVANNI, LARA HOLLINGER,
and JENNIFER BENNIE,
on behalf of themselves and all
others similarly situated,

United States District Court
For the Northern District of California

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ORDER DENYING
DEFENDANT'S MOTION
TO TRANSFER VENUE
(Docket No. 38)

Plaintiffs,

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No. C 13-00581 CW

v.
DAIICHI SANKYO COMPANY, INC.,
Defendant.
________________________________/
Defendant Daiichi Sankyo, Inc. (DSI) moves, pursuant to 28

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U.S.C. § 1404(a), to transfer this action to the United States

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District Court for the District of New Jersey for the convenience

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of parties and witnesses and in the interests of justice.

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Plaintiffs Sara Wellens, Kelly Jensen, Jacqueline Pena, Bernice

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Giovanni, Lara Hollinger and Jennifer Bennie oppose the motion.

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The Court having considered the papers DENIES Defendant's Motion

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to Transfer Venue.

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BACKGROUND
DSI, a pharmaceutical company, began operating in the United

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States in 2006.

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place of business is Parisppany, New Jersey.

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DSI is incorporated in Delaware and its principal
Benadon Decl. ¶ 1.

Plaintiffs are all California residents and have been

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employed by DSI in the state of California.

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Jensen Decl. ¶ 2; Pena Decl. ¶ 4; Giovanni Decl. ¶ 4; Hollinger

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Decl. ¶ 4; Bennie Decl. ¶ 4.

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California and nation-wide class of "current, former and future

Wellens Decl. ¶ 2;

Plaintiffs seek to represent a

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female sales employees in a sales representative and first level

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district manager role . . . ."

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See Compl. ¶¶ 114, 116, 146, 152.

Plaintiffs allege systemic gender discrimination and

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disparate impact in pay, benefits and promotional and career

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advancement opportunities under Title VII of the Civil Rights Act

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of 1964, 42 U.S.C. §§ 2000(e), et seq., as amended; the Equal Pay

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Act of 1963, 29 U.S.C. § 201, et seq.; the California Fair

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Employment and Housing Act, Cal. Gov't Code § 12940, et seq.; the

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California Equal Pay Act, Cal. Lab. Code § 1197.5, and the

United States District Court
For the Northern District of California

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California Unfair Business Practices Act, Cal. Bus. and Prof. Code

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§§ 17200, et seq.

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policies, practices and actions that underpin Plaintiffs' pay,

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promotion and pregnancy/caregiver employment discrimination claims

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were implemented, and the effects felt, in California, not New

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Jersey.

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for named Plaintiffs' individual claims, but not for Plaintiffs'

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nationwide class action.

Wellens Decl. ¶ 7.

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Plaintiffs contend that the common employment

DSI responds that this may be true

LEGAL STANDARD
Title 28 U.S.C. § 1404(a) provides, "For the convenience of

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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."

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broad discretion to adjudicate motions for transfer on a

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case-by-case basis, considering factors of convenience and

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fairness.

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(1988); Sparling v. Hoffman Constr. Co., 864 F.2d 635, 639 (9th

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Cir. 1988).

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plaintiff's choice of forum; (2) convenience of the parties;

A district court has

See Stewart Org. Inc. v. Ricoh Corp., 487 U.S. 22, 29

Factors the court may consider include (1) the

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(3) convenience of the witnesses; (4) relative ease of access to

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the evidence; (5) familiarity of each forum with the applicable

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law; (6) feasibility of consolidation with other claims; (7) any

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local interest in the controversy; and (8) the relative court

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congestion and time to trial in each forum.

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361 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)).

United States District Court
For the Northern District of California

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Saleh v. Titan Corp.,

The movant bears the burden of justifying the transfer by a

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strong showing of inconvenience.

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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).

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includes members in other fora, the plaintiff's choice of forum is

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given less weight.

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1987).

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Decker Coal, 805 F.2d at 843.

Id.

As

See 28 U.S.C.

However, when the plaintiff represents a class that

Lou v. Belzberg, 834 F.2d 730, 739 (9th Cir.

Title 42 U.S.C. § 2000e-5(f)(3) provides that Title VII
cases:
may be brought in any judicial district in the
State in which the unlawful employment practice is
alleged to have been committed, in the judicial
district in which the employment records relevant
to such practice are maintained and administered,
or in the judicial district in which the aggrieved
person would have worked but for the alleged
unlawful employment practice, but if the
respondent is not found within any such district,
such an action may be brought within the judicial
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district in which the respondent has his principal
office. For purposes of sections 1404 and 1406 of
Title 28, the judicial district in which the
respondent has his principal office shall in all
cases be considered a district in which the action
might have been brought.

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DISCUSSION

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Neither Plaintiffs nor DSI denies that this action could have

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been brought in the District of New Jersey, but they vigorously
contest which forum is most convenient for the parties and
witnesses and which promotes the interest of justice.
As a preliminary matter, DSI is correct that "the analysis

United States District Court
For the Northern District of California

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prescribed for section 1404(a) transfers governs in spite of the
fact that a case includes Title VII allegations," and "ample case
law supports the basic proposition that the statute does not
prohibit transfers away from a plaintiff's chosen forum."

Ellis

v. Costco Wholesale Corp., 372 F. Supp. 2d 530, 537 (N.D. Cal.
2005), overruled in part on other grounds by Ellis v. Costco
Wholesale Corp., 657 F.3d 970, 988 (9th Cir. 2011).

However,

Plaintiffs are correct that the Title VII venue provision
"influences the contours of the section 1404(a) analysis."

Ellis,

372 F. Supp. 2d at 537.
I.

Plaintiffs' Choice of Forum
The parties disagree as to the level of deference to be given

to Plaintiffs' choice of forum.
Plaintiffs maintain that their choice of forum should be
given deference because their allegations arise under Title VII's
special provision and because the named Plaintiffs have worked in
California.

The Ninth Circuit has held that "the effect of Title

VII's venue provision is to allow suit in the judicial district in
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which the plaintiff worked."

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Consumer Products, Inc., 212 F.3d 493, 504 (9th Cir. 2000).

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Moreover, "a plaintiff's choice of forum is entitled to greater

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deference where a case arises under Title VII."

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Supp. 2d at 537.

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Passantino v. Johnson & Johnson

Ellis, 372 F.

However, DSI argues that Plaintiffs' choice of forum should

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not be given "greater deference" under Title VII, because

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Plaintiffs' suit is brought as a nationwide class and collective

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action.

"[W]here there are hundreds of potential plaintiffs,

United States District Court
For the Northern District of California

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. . . all of whom could with equal show of right go into their

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many home courts, the claim of any one plaintiff that a forum is

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appropriate . . . is considerably weakened."

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Lumbermen's Mut. Cas. Co., 330 U.S. 518, 524 (1947).

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plaintiffs represent a class, their choice of forum is given less

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weight.

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choice of forum is weakened because California will not be a

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favored forum for many of the class members from different states.

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Def. Mot. 8:12-17.

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Lou, 834 F.2d 730, 739.

Koster v. Am.
When

DSI contends that Plaintiffs'

Koster and Lou are distinguishable because Plaintiffs' claims

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arise under Title VII, which is governed by a more permissive

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standard of evaluation that applies deference in class action

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suits as well as individual actions.

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537 ("Where venue is governed by a more permissive standard, a

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plaintiff's choice of forum is entitled to greater deference as a

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matter of law, even where that case is brought as a class

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action.").

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Ellis, 372 F. Supp. 2d at

DSI also asserts that, because Plaintiffs' nationwide
allegations against DSI contend that discrimination resulted from
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"centralized control" by individuals who worked at corporate

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headquarters in New Jersey, venue is more proper in New Jersey.

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Def. Reply 4:5-7.

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Plaintiffs live and work in California and the effects of DSI's

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alleged discriminatory policies, practices and actions were

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implemented in California and felt by Plaintiffs in California.

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Pl's Opp. 2:12-14.

Plaintiffs counter that all of the named

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The Ninth Circuit has held that "unless the balance of

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factors is strongly in favor of the defendants, the plaintiff's

United States District Court
For the Northern District of California

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choice of forum should rarely be disturbed."

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Protection Corp. v. Vigman, 764 F.2d 1309, 1317 (9th Cir. 1985).

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"Congress expanded the available fora to plaintiffs grieving civil

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rights violations, thereby expressing intent to broaden a Title

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VII plaintiff's choice of forum."

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The Court will give deference to Plaintiffs' choice of forum and

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this factor weighs against transfer.

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II.

Sec. Investor

Ellis, 372 F. Supp. 2d at 537.

Convenience of the Parties

The parties dispute which venue is the most convenient forum.

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DSI asserts that the most convenient venue is New Jersey because

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ten of the twelve additional opt-in Plaintiffs do not live in

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California and Plaintiffs' allegations of a "centralized

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predominately male sales leadership team" will necessitate

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testimony from several of DSI's New Jersey-based human resources,

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sales and business leaders, all of whom work and reside in or

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around the District of New Jersey.

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Def. Mot. 9:1-7.

However, Plaintiffs respond that all named Plaintiffs reside

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in, work or have worked in California.

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require them to travel across the country when they have familial
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Plaintiffs argue that to

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obligations in the state of California would cause them hardship

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and would shift the inconvenience from DSI to themselves.

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Opp. 14:23-26; see Gelber v. Leonard Wood Mem'l for the

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Eradication of Leprosy, No. C 07-01785, 2007 U.S. LEXIS 47535

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(N.D. Cal. 2007) (citing Jumara v. State Farm Ins. Co., 55 F.3d

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873, 879 (3d Cir. 1995)).

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the inconvenience——and disproportionately so——onto plaintiff,

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transfer must be denied.

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finds transfer would disproportionately shift the inconvenience

Pl's

Where the defendant attempts to shift

Decker Coal, 805 F.2d at 843.

The Court

United States District Court
For the Northern District of California

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from DSI, which is a major corporation that does business in

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California and has litigated in California, to Plaintiffs.

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this factor weighs against transfer.

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III. Convenience of the Witnesses

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Thus,

The parties disagree as to which forum would be most

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convenient for the parties' witnesses.

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witnesses is often the most important factor in deciding whether

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to transfer an action.

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1083 (N.D. Cal. 2008).

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The convenience of

Getz v. Boeing Co., 547 F. Supp. 2d 1080,

DSI's potential witnesses are employees or officers of DSI

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and reside in the District of New Jersey.

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Court, however, discounts inconvenience to the parties' employees,

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whom the parties can compel to testify.

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Inc., 708 F. Supp. 1551, 1556 (N.D. Cal. 1988) (discounting

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inconvenience to witnesses when they are employees who can be

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compelled to testify).

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Def. Mot. 9:6.

The

STX, Inc. v. Trik Stik,

A majority of Plaintiffs' potential witnesses, some of whom

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are non-party witnesses, reside in California.

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The convenience of witnesses includes "a separate but related
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Pl's Opp. 16:1-3.

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concern, the availability of compulsory process to bring unwilling

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witnesses live before the jury."

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619 F. Supp. 2d 810, 820 (N.D. Cal.).

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DSI's transfer motion is granted, they may lose their non-party

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witnesses because the witnesses would not be within New Jersey's

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subpoena power.

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have "cobbled up" these non-party witnesses residing in California

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for the purposes of defeating the transfer motion.

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10:24-26.

Brackett v. Hilton Hotels Corp.,

Pl's Opp. 16:7-10.

Plaintiffs argue that, if

DSI argues that Plaintiffs

Def. Reply

However, DSI fails to provide supporting evidence for

United States District Court
For the Northern District of California

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this charge.

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Plaintiffs would be prejudiced by not being able to compel their

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non-party witnesses to testify in New Jersey.

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IV.

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This factor weighs against transfer because

Ease of Access to Sources of Proof

The parties disagree as to whether the location of relevant

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records favors transfer.

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favor of transfer because the electronically stored information

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(ESI) and hard copy documents relevant to the allegations in

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Plaintiffs' complaint are primarily maintained at DSI's corporate

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headquarters within the District of New Jersey.

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25.

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promotional materials, policies and procedures (including those

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relating to employment, compensation and benefit plans and

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documents).

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DSI argues that this factor weighs in

Def. Reply 13:24-

These records include personnel files, job descriptions,

Def. Mot. 12:6-10; Benadon Decl. ¶ 6.

Plaintiffs admit that key evidence can be found in New

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Jersey.

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irrelevant because this evidence can be transferred without grave

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inconvenience through modern technology.

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technological advances in document storage and retrieval,

However, Plaintiffs argue the location of the ESI is

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Pl's 21:15-16.

"Given

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transporting documents between districts does not generally create

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a burden."

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Brackett, 619 F. Supp. 2d at 820.

The Court finds that the burden on DSI of transferring the
records to California would be minimal.
V.

Remaining Factors

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A. State's Interest in the Controversy

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The parties dispute whether New Jersey or California has a

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greater interest in this controversy.

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in transfer of venue disputes is the "local interest in having

An important consideration

United States District Court
For the Northern District of California

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local controversies decided at home."

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843.

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either neutral or favors transfer to New Jersey.

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14.

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putative class members reside outside of the State and the

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challenged policies and practices "emanate" from DSI's

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headquarters in New Jersey——thus favoring transfer to New Jersey.

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Def. Mot. 12:15-22.

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Decker Coal, 805 F.2d at

DSI argues that the local interest in this controversy is
Def. Mot. 12:12-

DSI argues that although Plaintiffs bring California claims,

However, Plaintiffs respond that, because all named

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Plaintiffs have worked, resided and allegedly been subjected to

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DSI's discriminatory policies in the state of California,

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California has a strong public interest in deciding this

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controversy involving its citizens.

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Evangelical Alliance Mission, 930 F.2d 764, 771 (9th Cir. 1991).

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Plaintiffs argue that California's interest in protecting its

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citizens prevails because named Plaintiffs have filed actions

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under California's Fair Employment and Housing Act and other

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California statues.

Lockman Foundation v.

Pl's Opp. 19:7-13.

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The Court finds that both states have a relatively equal
interest in this matter and views this factor as neutral.

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B. Court's Familiarity with the Law

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Plaintiffs assert that a Northern District of California

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court is more familiar with California law underlying Plaintiffs'

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state class claims and therefore transfer should be denied.

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Opp. 18:12-13.

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applying California law."

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2007 U.S. Dist. LEXIS 95240, at *15 (N.D. Cal.).

Pl's

However, "other federal courts are capable of
Foster v. Nationwide Mut. Ins. Co.,
In addition,

United States District Court
For the Northern District of California

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"where a federal court's jurisdiction is based on the existence of

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a federal question, as it is here, one forum's familiarity with

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supplemental state law claims should not override other factors

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favoring a different forum."

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Id. at *16.

The Court finds that although it may be more familiar with

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Plaintiffs' state law claims, there is no reason to believe that

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the New Jersey court could not successfully apply California law.

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The Court weighs this factor as neutral in the section 1404

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analysis.

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C. Districts' Judicial Efficiency

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The parties disagree whether transferring this case to the

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District of New Jersey would promote judicial efficiency.

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argues transferring this matter to New Jersey will not cause any

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significant delay and a transfer may promote judicial efficiency

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because the District of New Jersey moves cases to disposition more

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quickly.

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Jersey handle an average of 570 cases per year compared to 602

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cases heard per year in the Northern District of California.

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Reply 14:12-13; see Chukwu Decl. ¶ 2, Ex. 1.

Def. Mot. 13:13-15.

DSI

Judges in the District of New

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Def.

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Plaintiffs contend that if this Court is to consider

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congestion, the focus should be the median time from the filing to

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trial.

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time from filing to trial is 32.7 months and in the District of

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New Jersey the median time from filing is 35.6 months.

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Decl. ¶ 2, Ex. 1.

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Pl's Opp. 22:11-12.

In the Northern District, the median

Chukwu

The Court finds that this factor is neutral because the

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backlogs are not disproportionate taking either method into

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consideration.

United States District Court
For the Northern District of California

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VI.

Balancing of Factors

DSI fails to meet its burden of establishing that the balance

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of inconveniences weighs heavily in favor of transfer to the

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District of New Jersey.

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forum is afforded deference, which is increased because they

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allege Title VII claims.

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will not be disturbed.

As noted above, Plaintiffs' choice of

Accordingly, Plaintiffs' choice of forum

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CONCLUSION

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For the forgoing reasons, Defendant's Motion to Transfer

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Venue (Docket No. 38) is DENIED.
IT IS SO ORDERED.

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Dated: 6/25/2013

CLAUDIA WILKEN
United States District Judge

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