Drey v. The Quaker Oats Company

Filing 16

ORDER. Signed by the Honorable Rebecca R. Pallmeyer on 1/4/2017. Mailed notice (lf, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MARIO ALIANO, individually and on
behalf of all others similarly situated,
Plaintiff,
v.
THE QUAKER OATS COMPANY,
Defendant.
COURTNEY DREY, individually and on
behalf of all others similarly situated,
Plaintiff,
v.
THE QUAKER OATS COMPANY,
Defendant.
KEVIN PHUNG, on behalf of himself and
all others similarly situated,
Plaintiff,
v.
THE QUAKER OATS COMPANY,
Defendant.
SOPHIA SAENZ, on behalf of herself
and all others similarly situated,
Plaintiff,
v.
THE QUAKER OATS COMPANY,
Defendant.

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No. 16 C 3087

Judge Rebecca R. Pallmeyer

No. 16 C 4293

No. 16 C 6215

No. 16 C 7395

ORDER
In separate cases now pending before this court, four Plaintiffs—Mario Aliano, Courtney
Drey, Kevin Phung, and Sophia Saenz—have brought suit against Defendant The Quaker Oats
Company. Plaintiffs allege that Defendant falsely represented that its oatmeal food products
contain maple syrup or maple sugar, and each Plaintiff purports to represent a class of

individuals who purchased Defendant's food products as a result of Defendant's alleged false
representations.

Before any of the Plaintiffs filed their lawsuits, another plaintiff filed a

substantially similar suit against Defendant in the Central District of California. See Eisenlord v.
Quaker Oats Co., Case No. 16 C 1442 (C.D. Cal.) (filed March 1, 2016). Defendant has moved
to transfer [31] the related cases before this court to the Central District of California—or, in the
alternative, to stay the cases pending resolution of Eisenlord—pursuant to the so-called "first-tofile rule." Another similar case that was brought against Defendant in New Jersey has already
been transferred to the Central District of California. See Gates v. Quaker Oats Co., No. 1:16CV-01944-NLH-JS, 2016 WL 4154675, at *1 (D.N.J. Aug. 3, 2016). Plaintiffs contend that
transfer would not be in the interest of justice and would be inconvenient to the parties and
witnesses in their cases. For the reasons stated below, the court concludes that justice and
convenience weigh in favor of transferring the cases to the Central District of California, but that
Aliano's and Saenz's cases cannot be transferred there under 28 U.S.C. § 1404(a). Those
cases will therefore be stayed pending resolution of Eisenlord.
BACKGROUND
Defendant is a New Jersey Corporation with its principal place of business in Illinois.
(Aliano Compl. [1] ¶ 6.) 1 Aliano, a resident and citizen of Illinois, alleges that he purchased
Defendant's oatmeal at a retail grocery store in Illinois. (Id. ¶¶ 5, 25.) On March 11, 2016, he
filed his suit against Defendant in this court, with a complaint that is nearly identical to, and
reproduces many paragraphs verbatim from, the complaint in Eisenlord.

(See Eisenlord

Compl., Ex. D to Pl.'s Resp. to Def.'s Mot. to Transfer or Stay [33-4].) Saenz is another Illinois
resident who alleges that she purchased Defendant's oatmeal at a store in Illinois. (Saenz
Compl., Ex. A to Def.'s Notice of Removal ([1-1] in Saenz v. The Quaker Oats Co., Case No. 16
C 7395 (N.D. Ill.) (hereinafter "Saenz")), ¶¶ 8–9.) She filed her case against Defendant in

1

Citations to the record are to the docket in Aliano v. Quaker Oats Co., Case No.
16 C 3087 (N.D. Ill.) (hereinafter "Aliano"), unless noted otherwise.
2

Illinois state court in June 2016, and Defendant later removed the case to federal court,
pursuant to the Class Action Fairness Act of 2005, Pub. L. 109–2, 119 Stat. 4 (2005). (See
Def.'s Notice of Removal ([1] in Saenz) ¶ 7.) Unlike Aliano and Saenz, Drey and Phung are
residents and citizens of California. (See Drey Compl. ([1] in Drey v. Quaker Oats Co., Case
No. 16 C 4293 (N.D. Ill.) (hereinafter "Drey")), ¶ 6.; Phung Compl. ([1] in Phung v. Quaker Oats
Co., Case No. C 16 C 6215 (N.D. Ill.) (hereinafter "Phung")), ¶ 10.) They filed their cases in this
district in April 2016 and June 2016, respectively.

Drey, Phung, and Saenz have been

reassigned to this court as related cases to Aliano.
On April 5, 2016, before Drey, Phung, and Saenz filed their suits, Aliano filed a motion
before the United States Judicial Panel on Multidistrict Litigation ("J.P.M.L."), seeking transfer of
the cases in Eisenlord and Gates to this district to be consolidated, along with his case, for
pretrial proceedings. (See Pl.'s Mot. for Coordination or Consolidation and Transfer [16].) In
support of his motion for consolidation, Aliano asserted that "the central factual allegations in
each case are identical." (Id. at 2.) The J.P.M.L. denied Aliano's request to centralize the
pretrial proceedings but noted that alternatives to centralization were available and invited the
parties "to consider seeking a stay, dismissal or transfer of the later-filed cases under the 'firstto-file rule' to streamline this litigation."

In re Quaker Oats Maple & Brown Sugar Instant

Oatmeal Mktg. & Sales Practices Litig., No. MDL 2718, 2016 WL 3101830, at *2 (J.P.M.L. June
2, 2016). Following the decision of the J.P.M.L., Defendant filed its motion to stay or to transfer
the cases to the Central District of California. Only Aliano and Phung have filed responses to
Defendant's motion. The court discusses the parties' arguments below.
DISCUSSION
The first-to-file rule permits district courts "to stay or transfer a federal suit 'for reasons of
wise judicial administration . . . whenever it is duplicative of a parallel action already pending in
another federal court.'" Schwarz v. Nat'l Van Lines, Inc., 317 F. Supp. 2d 829, 833 (N.D. Ill.
2004) (quoting Serlin v. Arthur Andersen & Co., 3 F.3d 221, 223 (7th Cir. 1993)). In the Seventh
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Circuit, district courts may transfer a case under the first-to-file rule "so long as 'the principles
that govern requests for transfer do not indicate otherwise.'" Humphrey v. United Healthcare
Servs., Inc., No. 14 C 1157, 2014 WL 3511498, at *3 (N.D. Ill. July 16, 2014) (quoting Research
Automation, Inc. v. Schrader-Bridgeport Int'l, Inc., 626 F.3d 973, 980 (7th Cir. 2010)). Courts
look to 28 U.S.C. § 1404, the federal change of venue statue, for the principles that govern
transfer requests in each case. Research Automation, 626 F.3d at 978.
Under section 1404(a), "[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 or to any district or division to which all parties have consented."

To

evaluate the "convenience of parties and witnesses," courts consider, among other factors, (1)
the availability of and access to witnesses, (2) each party's access to and distance from
resources in each forum, (3) the location of material events, and (4) the relative ease of access
to sources of proof.

Research Automation, 626 F.3d at 978. For the "interest of justice"

evaluation, courts consider additional factors, including (1) docket congestion and likely speed
to trial in the transferor and potential transferee forums, (2) each court's relative familiarity with
the relevant law, (3) the respective desirability of resolving controversies in each locale, and (4)
the relationship of each community to the controversy. Id. Importantly, the "interest of justice"
element "may be determinative, warranting transfer or its denial even where the convenience of
the parties and witnesses points toward the opposite result." Id.
I.

Analysis of § 1404(a) Factors
In this case, the convenience of parties and witnesses does not weigh strongly either in

favor of or against transfer. Regarding the location of material events, it is true that Defendant
is headquartered in Illinois, and thus it is likely that many of the decisions about the marketing of
Defendant's products were made here. But it is also the case that Defendant's allegedly false
representations were part of a nationwide marketing scheme.

And although the fact that

Defendant is headquartered in Illinois means that there may be marginally greater access to
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sources of proof in Illinois, even Plaintiff Phung concedes that that factor is likely neutral in this
case. (Pl. Phung's Opp'n to Def.'s Mot. To Transfer or Stay ([13] in Phung) at 5.) "With the
advent of electronic discovery, where records are actually stored is less of a factor because
documents now are easily scanned, stored, and electronically transmitted and moving them no
longer creates the onerous burden it may once have imposed." Camarena v. Vanderbilt
Mortg. & Fin., Inc., No. 15 C 00656, 2015 WL 4036258, at *3 (N.D. Ill. July 1, 2015).
At first glance, it might appear that the Northern District of Illinois is a more convenient
forum than the Central District of California because Plaintiffs Aliano and Saenz are from the
district, Defendant has its headquarters here, and many of the company's witnesses are here.
But upon closer inspection, it is not clear that keeping the cases here would be more convenient
for the parties or witnesses. As Defendants point out, and Aliano does not dispute, Aliano (with
his same counsel) has filed multiple actions in the Central District of California in the past two
years and is still litigating those cases there. (Def.'s Mot. to Transfer or Stay [13] at 11–12.)
Aliano can hardly claim, therefore, that litigating in that district would be inconvenient for him.
Drey and Phung are California residents and thus cannot plausibly claim that the Northern
District of Illinois is a more convenient forum for them.

And although Defendant is

headquartered here, its counsel are located in Los Angeles and Washington, D.C., and
Defendant has consistently taken the position that it is equally convenient for it to litigate in
California as in Illinois. See Askin v. Quaker Oats Co., No. 11 CV 111, 2012 WL 517491, at *5
(N.D. Ill. Feb. 15, 2012) ("[A]lthough there may be more witnesses located in Illinois at Quaker's
headquarters, Quaker asserts that document production can move forward as easily in
California as in any other jurisdiction.") With regard to the convenience of witnesses, it is
important to keep in mind that should the Eisenlord case proceed to discovery or to trial,
witnesses will be deposed and expected to testify in a case in the Central District of California
concerning the same subject matter as this case. Requiring those same witnesses to testify in
this case as well does not appear to be a more convenient outcome. As another district court
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recognized, when faced with a similar situation, "convenience should not be assessed in a
vacuum." Wiley v. Gerber Prod. Co., 667 F. Supp. 2d 171, 173 (D. Mass. 2009). The "proper
inquiry is not whether [Illinois] is more convenient than California in the abstract but instead
whether sanctioning a second, nearly identical action here is more convenient than transferring
the case for the purpose of consolidation." Id. "When considered in that light, convenience
weighs in favor of transfer." Id.
When the court steps back and analyzes the convenience factors with the understanding
that the Eisenlord case will already be proceeding in California, it is difficult to conclude that the
convenience of the parties and witnesses militates in favor of keeping Plaintiffs' cases in this
district. And, notably, the "interest of justice" element may be determinative in particular cases
"even if the convenience of the parties and witnesses might call for a different result." Coffey v.
Van Dorn Iron Works, 796 F.2d 217, 220 (7th Cir. 1986). Cases in which the interest-of-justice
element may be determinative include those where there is related litigation in "a forum where
consolidation is feasible." Id. at 221.
As with the convenience factors, the traditional interest-of-justice factors do not cut
strongly in either direction. None of the parties has suggested that one of the districts has a
more congested docket or would be slower to proceed to trial. True, some of the Plaintiffs
assert claims under Illinois law, and this court may have some greater familiarity with Illinois law
than a court in California, but Defendant asserts that there is a threshold question of federal
preemption that is common to all the claims. This court has no greater expertise than any other
federal court in evaluating that question, nor have Plaintiffs identified any unique or idiosyncratic
aspect of Illinois law at issue here that would make this court’s purported greater familiarity with
Illinois law significant. Regarding the other traditional interest-of-justice factors, although Illinois
has some interest in ensuring that its consumer-protection laws are enforced against its own
companies, each state has an interest in ensuring that its consumer laws are enforced to
prohibit unfair and deceptive acts of all companies.
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And because Defendant's sale and

marketing of the products at issue was nationwide, "there is no compelling community interest
that would be preserved by the selection of one venue over another." Lafleur v. Dollar Tree
Stores, Inc., No. 1:11 CV 8473, 2012 WL 2280090, at *7 (N.D. Ill. June 18, 2012).
Ultimately, the interest-of-justice element "relates to the efficient administration of the
court system." Research Automation, 626 F.3d at 978. Allowing separate suits to proceed in
different districts—cases that involve the same defendant, seek the same remedy, and deal with
substantially similar factual and legal issues—would not serve the efficient administration of the
court system.

Cf. McReynolds v. Merrill Lynch & Co., 694 F.3d 873, 889 (7th Cir. 2012)

("[A]llowing a separate [class-action] suit seeking the same remedy [from the same defendant]
would be redundant."). As Aliano himself asserted in his memorandum before the J.P.M.L., the
cases at issue here are "nearly identical," and allowing the cases to proceed in separate
districts could lead to "duplication of discovery[,] . . . inconsistent pretrial rulings," and an
inefficient use of the parties' and judiciary's resources.

(Pl. Aliano's Mem. In Supp. of

Coordination or Consolidation [17] at 1, 3.). Thus the efficient administration of the court system
weighs in favor of transfer to the venue where the first "nearly identical" case was filed. 2
II.

Propriety of Transferring Aliano and Saenz
For the reasons discussed above, the court believes that the convenience of the parties

and witnesses and the interest of justice favor transferring the cases to the forum of the firstfiled case. Phung raises an additional wrinkle, however. Seventh Circuit appears to authorize

2

In most cases, courts give considerable weight to a plaintiff's choice of forum.
Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S. Ct. 839, 843 (1947) ("[U]nless the balance is
strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed.").
That factor does not carry much weight here, for two reasons. First, to the extent that the cases
would be best resolved in a single forum, the Eisenlord plaintiff's choice of forum should receive
at least as much weight as any of Plaintiff's choices. Second, where plaintiffs file suits that are
nearly identical to a previously-filed action in a different forum and then soon move to establish
an MDL in their preferred forum, there is at least a basis for concern that the plaintiffs (or their
counsel) are engaging in forum shopping. Such a concern would provide a reason to discount
their choice of forum. See Research Automation, 626 F.3d at 979 n.2.

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transfer of a case filed here to the district of an earlier-filed case only if section 1404(a)
authorizes such a transfer of venue. See Research Automation, 626 F.3d at 982. As Phung
points out, however, Defendant has not established that the Central District of California is a
"district or division where [Aliano's case] might have been brought" initially under section
1404(a). The alleged activities giving rise to Aliano's claim in this case—Defendant's marketing
and sale of its product and Aliano's purchase of the product—took place in Illinois. As a result,
it is unlikely that there would be a sufficient link between the "forum and the underlying
controversy" to allow the Central District of California to exercise specific personal jurisdiction
over Defendant in a suit brought by Aliano. Goodyear Dunlop Tires Operations, S.A. v. Brown,
564 U.S. 915, 919 (2011). And none of the parties have shown that Defendant's contacts with
California are so "constant and pervasive" as to render it "essentially at home" there, such that
the Central District of California could exercise general personal jurisdiction over Defendant.
Daimler AG v. Bauman, 134 S. Ct. 746, 751 (2014). Defendant, who is now seeking transfer to
that district, would surely consent to personal jurisdiction there, but the Supreme Court has
determined that a defendant's subsequent consent to jurisdiction is irrelevant to the question of
"where [the case] might have been brought" initially. Hoffman v. Blaski, 363 U.S. 335, 342–43
(1960).
Defendant argues that because Aliano brings his suit on behalf of a nationwide class,
including residents of California who purchased Defendant's products in California, the Central
District of California would have had specific personal jurisdiction if Aliano had brought his suit
there. This argument ignores that, for the determination of specific personal jurisdiction in a
class action, "it is the named plaintiff's claim that must arise out of or result from the defendant's
forum-related activities, not the claims of the unnamed members of the proposed class, who are
not party to the litigation absent class certification." Ambriz v. Coca Cola Co., No. 13-CV03539-JST, 2014 WL 296159, at *6 (N.D. Cal. Jan. 27, 2014) (internal quotation marks omitted).
Defendant also argues that the court should not consider whether Aliano's case could have
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been brought in the Central District of California because Aliano himself never raised that
argument and Phung, as a nonparty to Aliano's case, lacks standing to raise an argument on
Aliano's behalf. This court, too, is uncertain that Phung technically has standing to make this
argument. His case has been reassigned as related to Aliano’s, however; Phung therefore does
have an interest in whether Aliano's case is transferred, as that transfer might affect the
propriety of transferring Phung's case. In any event, regardless whether Phung has standing to
raise the argument, the court is inclined to consider it, in the same way that the court could
consider the argument from an amicus curiae who is not a party to a case. See Adams v. City
of Chicago, No. 94 C 5727, 1995 WL 491496, at *1 (N.D. Ill. Aug. 11, 1995) (citing cases to
support the proposition that "whether to allow the participation of an amicus curiae is firmly
within the discretion of the district court"). Defendant had the opportunity to respond to this
argument after Phung raised it, and the court sees no reason to turn a blind eye to the issue.
The court concludes that it would be inappropriate to transfer Aliano's case to a district in
which it could not have been brought initially. Because Saenz is also an Illinois plaintiff whose
claim is based on conduct that occurred in Illinois, the court similarly concludes that it would be
inappropriate to transfer her case. The court nevertheless stands by its conclusion that it would
be an inefficient use of judicial resources to allow those plaintiffs' cases to proceed in this district
at the same time that Eisenlord proceeds elsewhere. Thus the court will stay Aliano and Saenz
pending resolution of Eisenlord.

Of course, because both Aliano and Saenz are putative

members of the class in Eisenlord, they are free to voluntarily dismiss their cases in this court in
order to seek intervention in Eisenlord or to file suits in the Central District of California and seek
consolidation with the other related cases.

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CONCLUSION
For the reasons stated above, Defendant's motion to transfer or stay [Docket No. 31 in
Case No. 16 C 3087; Docket No. 8 in Case No. 16 C 4293] is granted. Aliano’s remaining
pending motions [Docket Nos. 4, 7, 11] in Case No. 16 C 3087 are terminated. The Clerk is
directed to transfer the cases of Drey v. Quaker Oats Co., Case No. 16 C 4293 (N.D. Ill.), and
Phung v. Quaker Oats Co., Case No. C 16 C 6215 (N.D. Ill.) to the Central District of California.
The cases of Aliano v. Quaker Oats Co., Case No. 16 C 3087 (N.D. Ill.), and Saenz v. The
Quaker Oats Co., Case No. 16 C 7395 (N.D. Ill.), are stayed pending the resolution of
Eisenlord v. Quaker Oats Co., Case No. 16 C 1442 (C.D. Cal.) (filed March 1, 2016).
ENTER:

Dated: January 4, 2017

_________________________________________
REBECCA R. PALLMEYER
United States District Judge

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