Chicken Kitchen USA, LLC v. Tyson Foods, Inc. et al
ORDER denying 7 Defendants' Motion to Change Venue. Signed by Magistrate Judge Edwin G. Torres on 8/9/2017. (js02)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-21503-Civ-WILLIAMS/TORRES
CHICKEN KITCHEN USA, LLC,
TYSON FOODS, INC., TYSON CHICKEN
INC., TYSON BREEDERS, INC. and TYSON
ORDER DENYING DEFENDANTS’ MOTION TO TRANSFER
This matter is before the Court on Tyson Foods, Inc., Tyson Chicken, Inc.,
Tyson Breeders, Inc., and Tyson Poultry, Inc.’s (collectively, “Tyson” or
“Defendants”) motion to transfer (“Motion”) this action to the Northern District of
Illinois pursuant to 28 U.S.C. § 1404(a) against Chicken Kitchen USA, LLC’s
(“Plaintiff”). [D.E. 7]. On May 19, 2017, Plaintiff timely responded [D.E. 12] to
which Defendants replied on May 24, 2017.
Motion is now ripe for disposition.
After careful consideration of the Motion,
response, reply, and relevant authority, and for the reasons discussed below,
Defendants’ Motion is DENIED.
Plaintiff is a franchisor of the Chicken Kitchen franchise system. On April
21, 2017 Plaintiff filed a three-count complaint against Defendants because of an
alleged conspiracy to fix, maintain, and stabilize the price of broilers (which are
young chickens) by limiting production with the intent of increasing broiler prices in
the United States.
In furtherance of the conspiracy, Defendants purportedly
disclosed non-public and confidential information about prices, capacity, sales,
volume, and demand with other major broiler producers throughout the United
States with the intended effect of increasing prices.
Plaintiff alleges that
Defendants fraudulently concealed their anticompetitive conduct from others and
caused significant financial injury.
Plaintiff’s causes of action include (1) a violation of section 1 of the Sherman
Act, (2) a violation of the Florida Deceptive and Unfair Trade Practices Act
(“FDUTPA”), and (3) unfair enrichment.
Plaintiff seeks treble damages and
injunctive relief. Defendants, based out of Arkansas, have moved to transfer this
action to the United States District Court for the Northern District of Illinois so
that it may be consolidated with three similar lawsuits that have been filed in that
venue. Plaintiff is not a party to any of the lawsuits in Illinois.
The present dispute centers on whether this action should be litigated in
Florida or Illinois.
Defendants’ Motion was filed under 28 U.S.C. § 1404(a), a
statute that authorizes a civil action to be transferred to another district “[f]or the
convenience of the parties and witnesses, in the interest of justice.” 28 U.S.C. §
1404(a). “Section 1404(a) is intended to place discretion in the district court to
adjudicate motions 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 Dusen v. Barrack, 376 U.S. 612, 622 (1964)).
“Whether a transfer is appropriate depends on two inquiries: (1) whether the action
‘might have been brought’ in the proposed transferee court and (2) whether various
factors are satisfied so as to determine if a transfer to a more convenient forum is
justified.” Del Monte Fresh Produce Co. v. Dole Food Co., 136 F. Supp. 2d 1271,
1281 (S.D. Fla. 2001) (citing Miot v. Kechijian, 830 F. Supp. 1460, 1465–66 (S.D.
Fla. 1993) (denying motion for transfer where above test not met)).
The following factors are relevant in determining whether to transfer a case
under section 1404(a):
(1) the convenience of the witnesses; (2) the location of relevant
documents and the relative ease of access to sources of proof; (3) the
convenience of the parties; (4) the locus of operative facts; (5) the
availability of process to compel the attendance of unwilling witnesses;
(6) the relative means of the parties; (7) a forum's familiarity with the
governing law; (8) the weight accorded a plaintiff's choice of forum; and
(9) trial efficiency and the interests of justice, based on the totality of
Manuel v. Convergys Corp., 430 F.3d 1132, 1135 (11th Cir. 2005) (citing Gibbs &
Hill, Inc. v. Harbert Int’l, Inc., 745 F. Supp. 993, 996 (S.D.N.Y. 1990)). Because
federal courts have traditionally accorded a plaintiff’s choice of forum considerable
deference, Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947), the burden is on
Defendants, as the movant, to establish that Illinois is a more convenient forum
than Florida. See, e.g., In re Ricoh Corp., 870 F.2d 570, 573 (11th Cir. 1989).
The thrust of Defendants’ Motion is that the interests of justice, as well as
the convenience of the parties and witnesses, requires that this action be
transferred to Illinois where twelve substantially similar actions have been
consolidated into three class actions currently pending under the caption In re
Broiler Chicken Antitrust Litigation, No. 1:16-cv-08637 (the “Broiler Litigation”).
Defendants contend that the Plaintiff in this case, as well as the plaintiffs in the
Broiler Litigation action, allege that Defendant violated the Sherman Act and
Florida consumer protection laws by engaging in an antitrust conspiracy.
Broiler Litigation, which was initiated in September 2016, is currently pending
before Judge Durkin in Illinois and consists of three consolidated putative class
While Defendants admit that a plaintiff’s choice of forum is generally
accorded a considerable amount of deference, no such deference is supposedly
warranted here where there are related proceedings in the transferee district, and
the transferee district is significantly more convenient for both the parties and
Furthermore, Defendants suggest that Plaintiff’s allegations in this
action are nearly identical to the indirect purchaser class in Illinois, including the
remedy of injunctive relief under the Sherman Act as well as damages under the
FDUTPA. Because Plaintiff’s lawsuit could have been originally filed in Illinois,
Defendants argue that there is no reason why it should remain in Florida as a
separate action from the cases already part of the Broiler Litigation.
As an initial matter, we need not explore the full merits of Defendants’
Motion because it fails for an entirely separate reason than the arguments
presented in Plaintiff’s response.
The Broiler Litigation consists of three
consolidated class action cases that were all filed in Illinois.
As such, the relief
Defendants seek is barred by 28 U.S.C. § 1407(a), which states that the judicial
panel on multidistrict litigation (“JPML”) – not this Court – is responsible for
coordinating civil actions with common questions of fact that are filed in different
When civil actions involving one or more common questions of fact are
pending in different districts, such actions may be transferred to any
district for coordinated or consolidated pretrial proceedings. Such
transfers shall be made by the judicial panel on multidistrict litigation
authorized by this section upon its determination that transfers for
such proceedings will be for the convenience of parties and witnesses
and will promote the just and efficient conduct of such actions. Each
action so transferred shall be remanded by the panel at or before the
conclusion of such pretrial proceedings to the district from which it was
transferred unless it shall have been previously terminated . . . .
28 U.S.C. § 1407 (emphasis added).
By the statute’s plain language, Defendants must file a motion with the
JPML if Defendants wish to coordinate this action with the cases pending in Illinois
and cannot use § 1404(a) as an end-run around § 1407(a).
See In re Chiquita
Brands Int’l, Inc. Alien Tort Statute & S’holder Derivative Litig., 190 F. Supp. 3d
1100, 1122 (S.D. Fla. 2016) (“In Lexecon, the Supreme Court concluded the language
of § 1407 unconditionally commands that any transfer actions be taken solely by the
Judicial Panel on Multidistrict Litigation, 523 U.S. 26, 34–36 (1998) thus
preventing the district court from effecting a transfer under § 1404(a).”); see also
Christian v. AstraZeneca Corp., 2012 WL 204207, at *1 (M.D. Fla. Jan. 3, 2012),
Report and Recommendation adopted, 2012 WL 204203 (M.D. Fla. Jan. 24, 2012)
(“The drug Seroquel has previously been the subject of multidistrict litigation in
this Court and such cases were transferred by the Judicial Panel on Multidistrict
Litigation from other federal courts to this Court after they were filed in a court
with proper venue.”) (emphasis added).
Because § 1407 directly forecloses
Defendants’ arguments, we need not explore whether the factors under § 1404(a)
warrant transfer of this action.1 As such, Defendants’ Motion is DENIED.
For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that
Defendants’ Motion to Transfer [D.E. 11] is DENIED.2
If we did, Defendants’ Motion would likely fare no better. Neither Plaintiff
nor Defendants are based in Illinois and the injury here was allegedly suffered in
Florida. Those facts do not help Defendants’ cause.
It is well established that the undersigned Magistrate Judge has the
authority, under 28 U.S.C. 636(b)(1)(A), to dispose of motions to transfer venue, as
such a ruling has a non-dispositive effect on the litigation. See, e.g., McEvily v.
Sunbeam-Oster Co., 878 F. Supp. 337, 340 (D.R.I. 1994); see also O’Brien v. Goldstar
Technology, Inc., 812 F. Supp. 383, 384 (W.D.N.Y. 1993). Under the Court’s Local
Rules and section 636(b), however, a party has the right to appeal a non-dispositive
Order to the District Judge, who may then review any objections under a clearly
erroneous standard, or if she chooses under a de novo standard.
DONE AND ORDERED in Chambers at Miami, Florida, this 9th day of
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge
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