Hecker v. Petco Animal Supplies, Inc. et al
MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 6/7/17.Mailed notice(ca, )
Case: 1:16-cv-10857 Document #: 34 Filed: 06/07/17 Page 1 of 16 PageID #:310
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
JAMES HECKER, on Behalf
of Himself and All Others
PETCO ANIMAL SUPPLIES,
INC., PETCO ANIMAL
SUPPLIES STORES, INC.,
PETCO HOLDINGS, INC. LLC, )
and DOES 1 TO 100,
16 C 10857
Judge John Z. Lee
MEMORANDUM OPINION AND ORDER
Plaintiff James Hecker (“Hecker”) filed this action seeking unpaid overtime
compensation under the Illinois Minimum Wage Law, 820 Ill. Comp. Stat. 105/1 et seq.
(“IMWL”), and the Illinois Wage Payment and Collection Act, 820 Ill. Comp. Stat. 115/1 et seq.
(“IWPCA”). Defendants Petco Animal Supplies, Inc., Petco Animal Supplies Stores, Inc., and
Petco Holdings, Inc. LLC (“Defendants”) have moved to dismiss, transfer, or stay this case in
light of related litigation pending in the Southern District of California. For the reasons that
follow, Defendants’ motion  is granted in part and denied in part. Defendants’ motion to
dismiss or stay this action is denied, but the Court will transfer this action to the Southern
District of California pursuant to 28 U.S.C. § 1404(a).
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Hecker filed this action on November 23, 2016, on behalf of himself and similarly
situated former Petco assistant store managers. Compl. ¶ 1, ECF No. 1. He claims that Petco
improperly classified him and his putative class as exempt from Illinois’s overtime pay
requirements. See id. ¶¶ 11–26.
Prior to filing this action, Hecker opted in to a collective action brought under the Fair
Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”), in the Southern District of California:
Kellgren v. Petco Animal Supplies, Inc., No. 13-cv-00644-L-KSC (S.D. Cal. filed Mar. 19, 2013)
(“Kellgren”). Pl.’s Resp. 3, ECF No. 23. Like Hecker, Erik Kellgren (the lead plaintiff in
Kellgren) is a former Petco assistant store manager and worked for Petco in Illinois, and
Kellgren is represented by some of the same counsel as Hecker is in this case. Id. at 3, 6 n.3; see
Defs.’ Mem. Supp. Mot. Dismiss, Ex. 1(B), ECF No. 16-1. Kellgren similarly asserts that he and
assistant store managers across the country were misclassified as exempt from the FLSA’s
overtime pay requirements. Resp. at 1–3. The collective action has been conditionally certified
and involves no state law claims. Id. at 3. In addition to Hecker, twenty-one members (i.e.,
about 20 percent) of the putative class in this action have opted in to Kellgren. Approximately
80 percent of the putative class elected not to opt in or will have no involvement in Kellgren. Id.
at 4. 1
Kellgren has been actively litigated for over four years. Resp. at 3. The parties state that
the deadline to complete all discovery in Kellgren is August 2, 2017. Id.; see Defs.’ Mem., Ex.
1(K) ¶ 1. Other pretrial motions, including those related to decertification and final certification
of the collective action, are due by September 15, 2017. Defs.’ Mem., Ex. 1(K) ¶ 7.
The parties have identified an additional seventy-nine members of Hecker’s putative class, four of
whom did not receive notice in Kellgren because they became assistant store managers after the Kellgren
class notice was generated. Defs.’ Mem. at 9, ECF No. 16.
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Defendants have moved to dismiss Hecker’s case under the “first-filed doctrine,” more
commonly referred to as “the “first-to-file rule.” Alternatively, Defendants have asked the Court
to transfer the case to the Southern District of California under 28 U.S.C. § 1404(a) or to stay the
action. For the reasons discussed below, the Court concludes that the first-to-file rule does not
provide a basis for dismissal, but that transfer is appropriate. 2
The First-to-File Rule
In moving to dismiss this action under the first-to-file rule, Defendants represent that (1)
in the Seventh Circuit, there is a presumption that the first-to-file rule should apply unless the
principles guiding transfer under § 1404(a) dictate otherwise, and (2) it is generally proper,
where the first-to-file rule applies, to dismiss the second-filed suit. Defs.’ Mem. at 7, 11.
Neither representation, however, correctly characterizes the law. Rather, the interplay of these
doctrines and the proper standards of decision that apply in this area are somewhat murky,
necessitating some discussion here.
In Research Automation, Inc. v. Schrader-Bridgeport International, Inc., 626 F.3d 973
(7th Cir. 2010), the Seventh Circuit provided a lengthy discussion of the relationship between the
first-to-file rule and § 1404(a). The case involved parties to a contract that each party asserted
the other had breached. Id. at 975. Each party filed suit in its respective home venue, the first in
Illinois, and the second in Virginia. Id. The Illinois district court granted a motion to transfer
the Illinois case to Virginia, despite the fact that the Illinois case was filed first. Id. at 975–76.
On appeal, the party opposing transfer to Virginia—i.e., the party who had filed first in Illinois—
Defendants list a stay among the requested relief in their motion, but they advance no argument
as to why a stay (as opposed to other relief) is appropriate. In any case, because the Court grants
Defendants’ motion to transfer, it need not reach this issue.
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insisted that its status as first filer should prevail. Id. at 979. Rejecting this position, the Seventh
Circuit eschewed a rigid rule that a first-filed suit should proceed where filed. Id. at 980. In
doing so, the Court confronted the position that Defendants have taken here: namely, that “there
is a rebuttable presumption that the first case should proceed, ‘subject to the principles that
govern requests for transfer to a more convenient forum.’” Id. (quoting Asset Allocation &
Mgmt. Co. v. Western Emp’rs Ins. Co., 892 F.2d 566, 573 (7th Cir. 1989)). After undertaking a
thorough survey of the first-to-file rule as applied across various circuits, id. at 981–82, the court
concluded that there is “no such preference” for a first-filed case, and that
[w]here a case is filed first should weigh no more heavily in the district court’s
analysis than the plaintiff’s choice of forum in a section 1404(a) calculation. We
apply the same standard to a section 1404(a) motion regardless of whether there is
a second-filed case. The statutory language provides the ultimate touchstone,
while the considerations gleaned from judicial glosses will also be applicable to
many cases of this type in the sound discretion of the district judge.
Id. at 982. The court held that “where a district court faces one of two identical lawsuits and one
party moves to transfer to the other forum, the court should do no more than consider the order in
which the suits were filed among the factors it evaluates under 28 U.S.C. § 1404(a).” Id.
Research Automation, therefore, expressly disavows Defendants’ position that there is a
rebuttable presumption that a second-filed case should be dismissed unless the § 1404(a) factors
counsel otherwise. Rather, Research Automation indicates that the Seventh Circuit gives no
presumptive value to a case’s first-filed status. The first-filed status of a case should be no more
than a factor a court considers in performing a § 1404(a) analysis.
But McReynolds v. Merrill Lynch & Co., 694 F.3d 873 (7th Cir. 2012)—decided nearly
two years after Research Automation, and on which Defendants rely—suggests that the first-tofile doctrine nevertheless maintains a separate existence within a district court’s inherent
authority to promote judicial efficiency.
In McReynolds, the Seventh Circuit affirmed the
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dismissal of a case filed by a group of plaintiffs in the Northern District of Illinois that “simply
duplicated [earlier] litigation already underway” that the plaintiffs had filed in the district. Id. at
879. Without citing Research Automation (or referencing the first-to-file rule as such), the
Seventh Circuit stated that “[t]he district court has broad discretion to dismiss a complaint ‘for
reasons of wise judicial administration . . . whenever it is duplicative of a parallel action already
pending in another court.’” Id. at 888 (quoting Serlin v. Arthur Andersen & Co., 3 F.3d 221, 223
(7th Cir. 1993) (internal quotation marks omitted)). “A suit is duplicative,” the court explained,
“if the ‘claims, parties and available relief do not significantly differ between the two actions.’”
Id. at 889 (quoting Ridge Gold Standard Liquors, Inc. v. Joseph E. Seagram & Sons, Inc., 572 F.
Supp. 1210, 1213 (N.D. Ill. 1983)); see Northern v. Stroger, No. 16-3697, 2017 WL 716852, at
*1–2 (7th Cir. Feb. 23, 2017) (relying on McReynolds in affirming dismissal of a second-filed,
duplicative suit). 3
McReynolds also suggests that dismissal is a proper course of action for a district court to
take in applying the first-to-file rule to duplicative actions, at least where the actions are filed
within the same district. Where the cases are pending in different districts, the Seventh Circuit
recently has suggested that a stay, rather than an outright dismissal, may be the better approach
in some cases out of concern for comity. See Cent. States, Se. & Sw. Areas Pension Fund v.
Paramount Liquor Co., 203 F.3d 442, 445 (7th Cir. 2000) (“When comity among tribunals
justifies giving priority to a particular suit, the other action (or actions) should be stayed, rather
than dismissed, unless it is absolutely clear that dismissal cannot adversely affect any litigant’s
interest. There is no ‘first filed doctrine’ requiring dismissal of all suits after the first.”). The
While McReynolds involved duplicative suits filed within the same district, the principle on
which it relies has previously been applied to suits brought in different federal districts. See Calvert Fire
Ins. Co. v. Am. Mut. Reinsurance Co., 600 F.2d 1228, 1233 (7th Cir. 1979) (citing Kerotest Mfg. Co. v. CO-Two Fire Equip. Co., 342 U.S. 180 (1952)).
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court further observed that “[o]utright dismissal is most likely to be appropriate when . . . the
same party has filed all of the suits.” Id.
What can be gleaned from these cases is that dismissing a second-filed case, as
Defendants urge here, is appropriate in the narrow circumstance where a second-filed suit
duplicates claims brought in an earlier suit filed by the same party in the same district. But this
leaves the question of what importance first-filed status should have in deciding whether to
transfer or stay a second-filed case, particularly where the second-filed case is closely related but
not entirely duplicative of the first and filed in a different district. The most plausible approach
would be to read Research Automation as establishing that the first-filed status of a particular
suit, while relevant, is never dispositive of a party’s request to dismiss, transfer, or stay a secondfiled suit. Other district courts in this circuit have adopted this approach, considering the firstfiled nature of a suit in light of the other considerations relevant under § 1404(a), and have
refrained from dismissing second-filed, related suits. See Hyatt Franchising, L.L.C. v. Shen Zhen
New World I, LLC, No. 16 C 8306, 2017 WL 372313, at *3–6 (N.D. Ill. Jan. 26, 2017) (denying
a motion to transfer and noting that the opponent “achieved first-file status, and this is a fact that
weighs in [its] favor in the overall Section 1404 analysis”); Aliano v. Quaker Oats Co., No. 16 C
3087, 2017 WL 56638, at *2–4 (N.D. Ill. Jan. 4, 2017) (analyzing the first-filed status of a claim
as part of conducting a § 1404(a) analysis and finding transfer appropriate, but staying the
second-filed case due to improper venue in the transferee court); Humphrey v. United Healthcare
Servs., Inc., No. 14 C 1157, 2014 WL 3511498, at *3–4 (N.D. Ill. July 16, 2014) (applying the
first-to-file rule, confirming that § 1404(a) would not counsel a different result, and granting
transfer of the second-filed case); Askin v. Quaker Oats Co., No. 11 CV 111, 2012 WL 517491,
at *5–7 (N.D. Ill. Feb. 15, 2012) (applying the first-to-file rule, noting that § 1404(a) would not
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counsel a different result, and staying the second-filed case); Bell v. Bimbo Foods Bakeries
Distribution, Inc., No. 11 C 03343, 2011 WL 5981011, at *1–3 (N.D. Ill. Nov. 28, 2011) (noting
a “disinclination to dismiss” claims under the first-to-file rule, denying a motion to transfer due
to lack of argument, and reserving ruling on staying the case).
In this case, because Hecker is not a named plaintiff in Kellgren, his claims do not
duplicate those in Kellgren, and the two suits were filed in different districts, the Court denies
Defendants’ motion to dismiss this case on the basis of the first-to-file rule. The Court will,
however, entertain Defendants’ request to transfer the case to the Southern District of California
and consider the first-filed status of the Kellgren action in evaluating Defendants’ request under
Motion to Transfer Under 28 U.S.C. § 1404(a)
Under § 1404(a), courts consider “the convenience of parties and witnesses” and the
“interest of justice” in determining whether to transfer an action. 28 U.S.C. § 1404(a). 4 It is the
movant’s burden to establish, “by reference to particular circumstances, that the transferee forum
is clearly more convenient.” Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219–20 (7th Cir.
1986). With regard to convenience, “courts generally consider the availability of and access to
witnesses, and each party’s access to and distance from resources in each forum,” as well as “the
location of material events and the relative ease of access to sources of proof.” Research
Automation, 626 F.3d at 978. 5 The interest of justice element reflects concern for “efficient
Section 1404(a) also requires that the transferee district is one “where [the action] might have
been brought.” Id. Here, the parties do not dispute that this action could have been brought in the
Southern District of California, where Defendants are headquartered, and therefore reside, and substantial
events giving rise to Hecker’s claim occurred. Id. § 1391.
While the plaintiff’s choice of forum is often of significant importance in deciding whether to
grant a motion to transfer under § 1404(a), the Seventh Circuit has explained that “where, as here, the
case involves two identical suits in distinct venues, this factor loses its significance entirely.” Id. at 979.
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administration of the court system,” including factors such as “docket congestion and likely
speed to trial in the transferor and potential transferee forums,” “each court’s relative familiarity
with the relevant law,” “the respective desirability of resolving controversies in each locale,” and
“the relationship of each community to the controversy.” Id. 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. Evaluation of these factors is
entrusted to the discretion of the district court. Id. at 977–78.
Defendants contend that their “convenience would be maximized by litigating in
California, where [they are] headquartered and where discovery and motion practice are already
well under way, rather than duplicating efforts in Illinois.” Defs.’ Mem. at 12. They further
argue that the decisions giving rise to the assistant store manager wage classification were made
from Defendants’ headquarters in California, and that key witnesses and documents are located
there. Id. For his part, Hecker argues that it is more convenient for him to litigate in Illinois,
where he and the putative class members reside. Resp. at 9–10. He further asserts that “[m]ost
of the relevant documents and witnesses are in Illinois.” Id. at 10.
On balance, the Court is persuaded that California is a marginally more convenient venue
in which to hear this action. As explained in more detail below, Defendants are correct to point
out that this action, which is substantially related to Kellgren, would be more convenient for
them to litigate in California. By contrast, Hecker’s argument that Illinois is a more convenient
forum falls somewhat flat, given his decision to opt in to Kellgren in California, where Kellgren,
also an Illinois resident, is represented by some of the same counsel. See Aliano, 2017 WL
While the suits at issue in this case are not identical, they are significantly related, as explained below,
and even if the Court were to credit Hecker’s choice of forum despite his decision to opt in to Kellgren,
concern for the other convenience factors and the interest of justice would still warrant transfer.
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56638, at *3 (“[Plaintiff] (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. [Plaintiff] can hardly
claim, therefore, that litigating in that district would be inconvenient for him.”); Mazzantini v.
Rite Aid Corp., 829 F. Supp. 2d 9, 11 (D. Mass. 2011) (“The claim by Plaintiff that she would be
inconvenienced by having to travel to Pennsylvania rings hollow, given that she herself opted
into the [earlier] litigation in Pennsylvania as a plaintiff long before she even filed this lawsuit.”).
That said, Hecker is only an opt-in class member in Kellgren, as opposed to a named plaintiff,
and his class would likely prefer litigation in Illinois. But the potential preferences of the
putative class members are only a minor consideration, given that, at least at this juncture,
Hecker is the only plaintiff to this action, in which a class has not been certified. On balance,
consideration of the parties’ convenience weighs in favor of transfer given the parties’
participation in the Kellgren litigation, but only slightly.
The parties dispute whether California or Illinois would be more convenient for
witnesses, but neither identifies specific witnesses or what their testimony might be, and the
documents and evidence in this case are likely to be easily transferable between states. Taylor v.
Midland Funding, LLC, 94 F. Supp. 3d 941, 945–46 (N.D. Ill. 2015) (holding that the parties’
failure to identify specific witnesses and testimony prevented the court from determining what
would be more convenient); Landis v. Warner Chilcott (US), LLC, No. 10-CV-5283, 2010 WL
5373664, at *3 (N.D. Ill. Dec. 15, 2010) (“Because documents now are easily scanned, stored,
and electronically transmitted, moving them no longer creates the onerous burden it may once
Furthermore, to the extent any witnesses and documents relevant to
Defendants’ wage policies are more likely to be located in a particular forum, they are more
likely to be in California, where Defendants are headquartered and where their decisionmaking
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presumably took place. See Fryda v. Takeda Pharm. N. Am., Inc., No. 1:11-CV-00339, 2011
WL 1434997, at *3 (N.D. Ohio Apr. 14, 2011) (holding that, in “a wage dispute suit alleging
that, as a matter of policy, the [d]efendants mis-classified an entire class of their employees and
consequently withheld overtime pay,” the most significant witnesses and documents were likely
in the defendants’ principal place of business). Moreover, it is safe to conclude that, for reasons
explained in greater detail below, Hecker’s case will likely entail significant discovery that is
duplicative of that in Kellgren. Many of the key witnesses and documents have likely already
been subpoenaed and produced in connection with Kellgren. It would be inconvenient (not to
mention wasteful) to repeat this discovery in Illinois. Thus, the convenience of non-party
witnesses, as well as access to documents or other sources of proof, weighs in favor of transfer,
but again, only marginally.
Finally, while the policy decisions giving rise to Hecker’s claim took place in California,
he and the putative class members worked in Illinois, and their job duties and actions here may
be relevant to whether Defendants’ classification decision was proper. Thus, material events
giving rise to Hecker’s claims occurred in both venues, and this factor is neutral in regard to
On balance, therefore, California is a marginally more convenient forum in which to hear
Interest of Justice
While the convenience inquiry makes only a marginal case for transfer, the interest of
justice inquiry slants heavily in favor of transfer. First, this case is substantially similar to
Kellgren in a number of ways, such that it would be most efficient to transfer and consolidate or
otherwise coordinate this case with Kellgren. See Coffey, 796 F.2d at 221 (“[R]elated litigation
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should be transferred to a forum where consolidation is feasible.”). Where, as here, a party files
a class action that substantially overlaps with the parties, issues, and relief requested in an
earlier-filed class action in another district, transfer comports with the efficient administration of
justice. Rosen v. Spirit Airlines, Inc., 152 F. Supp. 3d 1055, 1063–64 (N.D. Ill. 2015) (“[T]he
apparent trend among Courts in this District is to grant transfer motions under the key
geographic factors present here: the defendant is located in the transferee district, two similar
class actions are pending in different federal districts and one of the class actions is pending in
the transferee district.”); accord Humphrey, 2014 WL 3511498, at *2–3; De Falco v. Vibram
USA, Inc., No. 12 C 7238, 2013 WL 1122825, at *10–11 (N.D. Ill. Mar. 18, 2013); Jaramillo v.
DineEquity, Inc., 664 F. Supp. 2d 908, 915–16 (N.D. Ill. 2009); see also Aliano, 2017 WL
56638, at *3 (“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.”).
Hecker disputes whether the actions are sufficiently similar. First, he argues that the
plaintiff groups are different because Hecker seeks to represent Illinois store managers, only
some of which have opted in to the nationwide collective action in Kellgren. Resp. at 4. This
argument has some superficial appeal. Because only 20 percent of the putative class members
have opted in to Kellgren, the composition of the class will differ considerably from that of the
Kellgren collective action. 6 As Defendants point out, however, there would nevertheless be
some unfairness in requiring Defendants to litigate a class action raising similar issues here, just
because members of Hecker’s putative class elected not to opt in to Kellgren. Castillo v. Taco
Defendants point out that courts have considered parties sufficiently similar where “class
members overlap.” Defs.’ Mem. at 9 (citing Humphrey, 2014 WL 3511498, at *3; Askin, 2012 WL
517491, at *4). But here, it is clear that the class members will not substantially overlap, because the
majority of putative class members in this action elected not to opt in to the Kellgren action.
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Bell of Am., LLC, 960 F. Supp. 2d 401, 405 (E.D.N.Y. 2013) (holding that the defendants
“should not be required to send a second class notice to individuals who have already received
such notice but have elected not to participate in [earlier, related litigation],” observing that “it is
precisely such concerns that have led courts here and in other jurisdictions to dismiss or transfer
second filed FLSA actions in favor of an earlier filed similar action,” and collecting cases); 7
accord Walker v. Progressive Cas. Ins. Co., No. C03-656R, 2003 WL 21056704, at *2 (W.D.
Wash. May 9, 2003).
In any case, because Hecker has opted in to Kellgren, his class-dissimilarity argument
puts the cart before the horse. As of now, Hecker is the only litigant in this action. As a member
of the Kellgren collective action, issues decided in that case, many of which are similar to this
case, could preclude or influence his pursuit of this action, and, at the very least, much of the
discovery he will seek is likely duplicative. His participation in each case supports transfer in
the interests of judicial economy and the efficient administration of justice. See Copello v.
Boehringer Ingelheim Pharm. Inc., 812 F. Supp. 2d 886, 888–90 (N.D. Ill. 2011) (dismissing the
claims of a plaintiff who had opted in to an earlier class action in another district that raised
To that end, the issues raised in Kellgren are sufficiently similar to those here such that
transfer serves the efficient administration of justice.
The factual basis and legal theory
underlying both cases are the same: Defendants misclassified Hecker and other assistant store
managers as exempt from overtime. See Defs.’ Mem., Ex. 1(B) ¶¶ 30–42; Compl. ¶¶ 12–26.
Granted, Kellgren is an FLSA case, whereas here, Hecker’s action arises under the IMWL and
IWPCA. But this difference is inconsequential, because each case involves the same core issue.
Hecker argues that Castillo is inapposite because the Castillo plaintiffs were permitted to opt in to
the earlier litigation after they filed their second, duplicative suit. Resp. at 8–9. The court did not rely on
this circumstance, however, in its reasoning.
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Kellgren presents the question of whether Defendants have properly classified Petco assistant
store managers as exempt under the FLSA’s exemption for employees “employed in a bona fide
executive, administrative, or professional capacity.” 29 U.S.C. § 213(a)(1); see Defs.’ Mem.,
Ex. 1(D), at 2. The same classification decision is at issue in this action, and Illinois’s exemption
mirrors the FLSA’s. 820 Ill. Comp. Stat. 105/4a(2)(E); Kennedy v. Commonwealth Edison Co.,
410 F.3d 365, 376 (7th Cir. 2005) (noting that a violation of the IMWL’s executive exemption is
“contingent on establishing a violation under the FLSA”); Delgado v. Roadco Transp. Servs.,
Inc., 159 F. Supp. 3d 865, 871 & n.3 (N.D. Ill. 2016) (holding that the plaintiff was “not exempt
from the FLSA’s overtime provisions under the executive exemption” and, therefore, “the result
would be the same under the IMWL”). Accordingly, whether the court in Kellgren determines
that Defendants misclassified Kellgren and Hecker will bear directly on Hecker’s claims here. 8
It would be inefficient to litigate this question simultaneously in two forums, which could
produce inconsistent results. This concern strongly weighs in favor of transfer.
The other factors relevant to the interest of justice inquiry are neutral or support transfer.
As a general matter, the Southern District of California’s caseload is smaller and its average
times from filing to disposition and trial are shorter, which favors transfer. See U.S. District
Courts—Combined Civil and Criminal Federal Court Management Statistics (Dec. 31 2016),
Hecker argues that his Illinois claims are meaningfully different because he might recover
punitive damages under Illinois law, but not under the FLSA. Resp. at 5. This difference in potential
relief, however, does not detract from the significant similarities between the two actions that support
their being considered together in the interest of justice. Hecker further argues that “Petco is not bound
by, and may raise different defenses and arguments than those it raised in Kellgren.” Id. at 5 n.2. But,
insofar as Kellgren proceeds and the court decides whether Defendants misclassified their assistant store
managers, both Defendants and Hecker, as a member of the class, may be bound by that result, given that
the IMWL’s exemption mirrors the FLSA. For these reasons, Hecker’s reference to Wilkie v. Gentiva
Health Services, Inc., No. CIV. 10-1451 FCD/GGH, 2010 WL 3703060 (E.D. Cal. Sept. 16, 2010), in
which the court denied a motion to transfer in part because “California law is significantly different than
[the] FLSA,” id. at *4, is unavailing.
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More to the point, Kellgren has progressed significantly, while Hecker’s case here is in its
infancy. If the two can be consolidated or coordinated, Hecker is likely to secure speedier relief
in the Southern District of California. Hecker believes otherwise, arguing that the progress of
Kellgren should militate against transfer and highlighting what he believes will be the need for
discovery that was not conducted in Kellgren and Kellgren’s upcoming fact discovery deadline.
Resp. at 6–7. Defendants disagree, maintaining that all necessary discovery is being or will be
conducted in Kellgren. Defs.’ Reply 5–7, ECF No. 25. But whether additional discovery is
needed is a determination that the Kellgren court is uniquely equipped to decide, having presided
over Kellgren for over four years. Transfer will permit the Kellgren court to determine the most
efficient way of proceeding, whether by consolidation or other coordination. Rosen, 152 F.
Supp. 3d at 1064 (listing the various means in which two related actions could be coordinated or
consolidated in the transferee district in the interests of judicial efficiency); De Falco, 2013 WL
1122825, at *11 (declining to “allow discovery and motion practice . . . to proceed in two
different district courts,” where doing so “would result in duplicative document productions,
depositions, and briefing”); HFC Commercial Realty, Inc. v. Levine, No. 90 C 2921, 1990 WL
186082, at *5 (N.D. Ill. Nov. 9, 1990) (noting the preference for transferring a related case to a
transferee district for consolidation, or at minimum, coordination of discovery efforts). 9
Moreover, while Hecker’s claims arise under Illinois law, this Court’s familiarity with
Illinois law does not weigh against transfer. While some federal courts sitting in diversity have
Hecker’s reference to Zajonc v. Morgan Stanley, No. 4:14-cv-05563-EMC (N.D. Cal. filed Dec.
19, 2014), and Devries v. Morgan Stanley, Case No: 9:12-cv-81223-KAM (S.D. Fla. filed Aug. 8, 2012),
does not persuade the Court otherwise. Resp. at 7–8. The defendants in these cases sought to consolidate
in Florida, but their motion to transfer was rejected, because the California case involved unique,
California-law claims that could not be accommodated with the discovery timeline in the Florida case.
See Reply, Ex. 2, at 5, ECF No. 25-2. Here, Hecker’s claims under state law are directly related to the
FLSA claims in the Kellgren action and thus can be more readily coordinated or consolidated with
Case: 1:16-cv-10857 Document #: 34 Filed: 06/07/17 Page 15 of 16 PageID #:324
emphasized the import of familiarity with state law to the interest of justice inquiry, e.g., Tawil v.
Ill. Tool Works Inc., No. 15 C 06808, 2015 WL 7889036, at *4 (N.D. Ill. Dec. 4, 2015), others
have downplayed its importance, e.g., Peterson v. U.S. Steel Corp., 624 F. Supp. 44, 46 (N.D. Ill.
1985) (“[F]ederal district courts must often undertake the task of deciding foreign law. Further,
familiarity with state law does not weigh heavily in consideration of a motion to transfer.”);
accord Hyatt Franchising, 2017 WL 372313, at *4; Jaramillo, 664 F. Supp. 2d at 917. Here,
however, because the Illinois and FLSA overtime exemptions mirror each other, this neutral
factor is of little significance.
In addition, Illinois and California each have an important
connection to and interest in resolving the controversy—Illinois because it will affect employees
here, and California because the conduct of three of its corporations is at issue. These concerns
are also neutral and do not significantly affect the interest of justice inquiry.
For these reasons, the Court concludes that, because of the substantial similarities
between this case and Kellgren, considerations underlying the interest of justice weigh heavily in
favor of transfer.
Given this, and in light of the Court’s determination that the relevant
convenience factors weigh slightly in favor of transfer, the Court grants Defendants’ request to
transfer this case to the Southern District of California. 10
In reaching this conclusion, the Court further notes that a New York district court presiding over a nearly
identical state law wage suit brought by a Kellgren collective class member recently reached the same conclusion on
similar grounds. See generally Michel v. Petco Animal Supplies Stores, Inc., No. 16CV1838LDHPK, 2017 WL
2198962 (E.D.N.Y. May 18, 2017).
Case: 1:16-cv-10857 Document #: 34 Filed: 06/07/17 Page 16 of 16 PageID #:325
For the foregoing reasons, Defendants’ motion to dismiss, transfer, or stay this case 
is granted in part and denied in part. Defendants’ motion to dismiss or stay this action is denied,
but the Court hereby transfers this case to the Southern District of California forthwith. This
case is hereby terminated on this Court’s docket.
IT IS SO ORDERED.
JOHN Z. LEE
United States District Judge
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