Rikos v. The Procter & Gamble Company

Filing 25

ORDER Granting Defendant's 11 Motion to Transfer Venue to the Southern District of Ohio. Signed by Judge Roger T. Benitez on 4/13/2011. (Electronically Transferred)(knh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DINO RIKOS, On Behalf of Himself, All
Others Similarly Situated and the General
Public,

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CASE NO. 10cv1974 BEN (CAB)
ORDER GRANTING
DEFENDANT’S MOTION TO
TRANSFER VENUE TO THE
SOUTHERN DISTRICT OF OHIO

Plaintiff,
vs.

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[Dkt. No. 11]

THE PROCTER & GAMBLE COMPANY,
Defendant.

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Defendant The Procter & Gamble Company moves the Court to transfer venue to the United

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States District Court for the Southern District of Ohio pursuant to 28 U.S.C. § 1404. (“Motion” [Dkt.

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No. 11].) Plaintiff Dino Rikos opposes. [Dkt. No. 14.] For the reasons set forth below, the Court

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hereby GRANTS Defendant’s Motion and transfers the case to the Southern District of Ohio.

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BACKGROUND

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This action arises out of alleged misrepresentations made by Defendant in its marketing and

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sale of a product known as “Align.” Defendant makes the product, and its headquarters and principal

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place of business are located in Cincinnati, Ohio, i.e., within the jurisdiction of the Southern District

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of Ohio. Plaintiff purchased the product in San Diego, California, but resides in Illinois. Plaintiff

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asserts his claims on behalf of herself and all others similarly situated.

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10cv1974

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On September 21, 2010, Plaintiff initiated this action against Defendant, alleging three causes

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of action: (1) violation of California’s Consumers Legal Remedies Act; (2) violation of the California

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Business & Professions Code; and (3) a breach of express warranty. Plaintiff’s claims are based on

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state law; however, federal courts have original jurisdiction based on the Class Action Fairness Act,

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28 U.S.C. § 1332(d).

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On November 22, 2010, Defendant filed the instant Motion. Defendant argues that this action

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should be transferred to the Southern District of Ohio because that is where Defendant’s headquarters

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and relevant witnesses and documents are located. Plaintiff filed an opposition, and Defendant filed

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a reply.

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The Court finds the Motion suitable for disposition without oral argument pursuant to Civil
Local Rule 7.1.d.1.
DISCUSSION

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Defendant asks the Court to transfer this action to the Southern District of Ohio pursuant to

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28 U.S.C. § 1404(a). “For the convenience of the parties and witnesses, in the interest of justice, a

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district court may transfer any civil action to any other district or division where it might have been

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brought.” 28 U.S.C. § 1404(a). The purpose of § 1404(a) is to “prevent the waste of time, energy and

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money and to protect litigants, witnesses and the public against unnecessary inconvenience and

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expense.” Van Dusen v. Barrack, 376 U.S. 612, 616 (1964) (internal citations and quotation omitted).

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In this case, it is undisputed that the action could have been brought in the Southern District

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of Ohio, based on Defendant’s residency. Therefore, the issue becomes whether the “convenience of

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the parties and witnesses” and the “interest of justice” compel transferring venue.

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When analyzing a motion to transfer venue under § 1404(a), “the court may consider: (1) the

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location where the relevant agreements were negotiated and executed, (2) the state that is most familiar

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

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forum, (5) the contacts relating to the plaintiff’s cause of action in the chosen forum, (6) the

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

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

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Jones v. GNC Franchising, Inc., 211 F.3d 495, 498-499 (9th Cir. 2000).
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10cv1974

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“As a general matter, a plaintiff's choice of forum should be afforded deference.” Patent Mgmt.

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Found., LLC v. Analog Devices, Inc., 2011 U.S. Dist. LEXIS 7389, *7 (N.D. Cal. 2011) (citing Decker

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Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986)). However Plaintiff’s

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choice of venue is only entitled to minimal consideration when Plaintiff does not reside in the district,

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the operative facts happened outside the forum, or plaintiff is seeking to bring a class action. Pfeifer

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v. Himax Techs., Inc., 530 F. Supp. 2d 1121, 1124 (C.D. Cal. 2008) (citing Lou v. Belzberg, 834 F.2d

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730, 739 (9th Cir. 1987)).

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Here, Plaintiff is a resident of Illinois and only occasionally travels to the Southern District of

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California to visit family. In addition, this is a proposed class action, and the operative facts likely

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occurred in the Southern District of Ohio. Defendant is headquartered in Ohio and contends that

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decisions regarding product marketing are made in that state. These facts weigh in favor of transfer.

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Defendant also argues that this action should be transferred to the Southern District of Ohio

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because the majority of witnesses in this case are its employees and they reside in Ohio. Plaintiff

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counters that Defendant’s employees are not considered non-party witnesses and their location is not

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a major factor to be considered. “The court accords less weight to the inconvenience of party

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witnesses, however, as they can be compelled to testify regardless of the forum in which the lawsuit

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is ultimately litigated.” Allstar Mktg. Group, LLC v. Your Store Online, LLC, 666 F. Supp. 2d 1109,

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1132 (C.D. Cal. 2009). While the convenience of party witnesses does not get as much weight as that

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of non-party witnesses, it is still a factor this Court may consider. The cost of litigation is another

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factor this Court may consider. Bringing employee witnesses to the Southern District of California

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adds a significant expense for Defendant and is another factor favoring transfer. Additionally, neither

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party has identified any witnesses residing in this district. Therefore, transfer will not have a negative

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impact on the parties ability to compel any witnesses.

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Plaintiff argues that transfer is improper because his claims arise out of California law and this

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Court is more familiar with the governing statutes. To support his position, Plaintiff cites Young v.

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Coastal Island Charters, 2005 U.S. Dist. LEXIS 32177, *8 (E.D. Cal. 2005). While the court in

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Young did consider familiarity with the governing law, it also relied heavily on the fact that the

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Plaintiff was a resident of his chosen forum. Id. This Court’s greater familiarity with California law
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is a factor that weighs against transfer, but it is not enough to overcome the other considerations in

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support of transfer.

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CONCLUSION

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In light of the above, Defendant’s Motion to Transfer Venue is GRANTED. The Clerk is

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directed to transfer venue of this case to the United States District Court for the Southern District of

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Ohio.

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IT IS SO ORDERED.

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DATED: April 13, 2011

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Hon. Roger T. Benitez
United States District Judge

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