Wagner v. Petco Animal Supplies, Inc. et al

Filing 30

ORDER granting 29 Memorandum in Support of the Parties Joint Motion to Transfer for Settlement Purposes, ORDER denying 19 Motion to Dismiss or, in the Alternative, to Stay or Transfer the Action by Judge Philip A. Brimmer on 08/31/2017. Pursuant to 28 U.S.C. § 1404(a), this action shall be transferred to the United States District Court for the Southern District of California (sphil)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 17-cv-00133-PAB-MJW
ROBERT WAGNER, Individually and On Behalf of All Other Similarly Situated Persons,
Plaintiff,
v.
PETCO ANIMAL SUPPLIES, INC.,
PETCO ANIMAL SUPPLIES STORES, INC., and
PETCO HOLDINGS, INC. LLC,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on Defendants’ Motion to Dismiss or, in the
Alternative, to Stay or Transfer the Action [Docket No. 19] and the parties’
Memorandum in Support of the Parties’ Joint Motion to Transfer for Settlement
Purposes Pursuant to 28 U.S.C. § 1404(a) [Docket No. 29], w hich the Court construes
as a motion to transfer. The Court has jurisdiction under 28 U.S.C. § 1332.
In addition to being the named plaintiff in this case, plaintiff Robert Wagner is an
opt-in plaintiff in an earlier-filed collective action brought under the Fair Labor Standards
Act, 29 U.S.C. § 201 et seq. (“FLSA”) currently pending before the United States District
Court for Southern District of California, captioned Kellgren v. Petco Animal Supplies,
Inc., No. 3:13-cv-0644-L-KSC. Kellgren was filed on March 19, 2013. Docket No. 19-2
at 11. Plaintiffs in Kellgren allege that Petco Animal Supplies, Inc. and Petco Holdings,
Inc. violated the FLSA by failing to pay overtime wages to assistant managers by

improperly classifying them as managers despite a lack of management duties. Id. at
25-28. On September 3, 2015, the Kellgren court conditionally certified a nationwide
collective action of such assistant managers that only excludes such workers in
California. Id. at 53. On March 21, 2016, Mr. W agner opted in to the Kellgren collective
action. Docket No. 25 at 3-4.
On January 15, 2017, Mr. Wagner filed a class action complaint in this Court.
Docket No. 1. It alleges a claim under the Colorado Wage Claim Act, Colo. Rev. Stat.
§ 8-4-101 et seq., and the Colorado Minimum Wage Act, Colo. Rev. Stat. § 8-6-101 et
seq., that Petco misclassified assistant store managers as exempt employees and did
not pay them overtime wages. Id. at 5. The complaint seeks certification of a class of
“current and former assistant managers employed by Petco within the State of
Colorado.” Id. at 4 (capitalization altered). Plaintiff is represented by the same counsel
who represent plaintiffs in Kellgren. Docket No. 19 at 2.
The parties request that the Court transfer this case to the Southern District of
California pursuant to 28 U.S.C. § 1404(a) so that the parties can com plete a global
settlement of all the related actions. Docket No. 29 at 1-2.
Section 1404(a) of Title 28 provides, in pertinent part, that, “[f]or the convenience
of parties and witnesses, in the interest of justice, a district court may transfer any civil
action to any other district or division where it might have been brought.” Section
1404(a) is “intended to place discretion in the district court to adjudicate m otions for
transfer according to an ‘individualized, case-by-case consideration of convenience and
fairness.’” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van

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Dusen v. Barrack, 376 U.S. 612, 622 (1964)). To warrant a transfer, the moving party
must establish that: (1) the action could have been brought in the alternate forum; (2)
the existing forum is inconvenient; and (3) the interests of justice are better served in
the alternate forum. Wolf v. Gerhard Interiors, Ltd., 399 F. Supp. 2d 1164, 1166 (D.
Colo. 2005).
The Court is satisfied that the Southern District of California is a proper venue for
this action because, according to plaintiff’s allegations, defendants’ principal place of
business is located in that district. Docket No. 1 at 2, ¶ 4; cf. 11A Charles Alan Wright
et al., Federal Practice & Procedure § 2942 (3d ed. 2015) (“if the party seeking the
injunction could raise the same issues in the other proceeding, the court typically will
take the position that the party has an adequate alternative remedy”). Additionally,
because the parties have filed a joint motion, a transfer of this case would be
convenient for all parties. Thus, in light of the parties’ settlement, the Court finds that
considerations of convenience and interests of justice strongly favor the transfer of this
case to the United States District Court for the Southern District of California.
Accordingly, it is
ORDERED that the parties’ Memorandum in Support of the Parties’ Joint Motion
to Transfer for Settlement Purposes Pursuant to 28 U.S.C. § 1404(a) [Docket No. 29],
construed as a motion to transfer, is GRANTED. It is further
ORDERED that Defendants’ Motion to Dismiss or, in the Alternative, to Stay or
Transfer the Action [Docket No. 19] is DENIED as moot. It is further

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ORDERED that, pursuant to 28 U.S.C. § 1404(a), this action shall be transf erred
to the United States District Court for the Southern District of California.

DATED August 31, 2017.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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