Johansen v. Blue Raven Solar, LLC et al

Filing 38

OPINION AND ORDER granting #31 Motion to Change Venue. This case is transferred to the United States District Court for the District of Nevada. The Court stays any responsive pleading deadlines pending scheduling by the transferee court. Signed by Magistrate Judge Elizabeth Preston Deavers on November 17, 2020. (jlk) [Transferred from Ohio Southern on 11/17/2020.]

Case 2:20-cv-02116-JCM-BNW Document 38 Filed 11/17/20 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

KENNETH JOHANSEN,
Plaintiff,
Civil Action 2:20-cv-2930
Chief Judge Algenon L. Marbley
Chief Magistrate Judge Elizabeth P. Deavers

v.

BLUE RAVEN SOLAR, LLC,
et al.,
Defendants.

OPINION AND ORDER
This matter, a putative class action alleging violations of the Telephone Consumer
Protection Act (“TCPA”), is before the Court on Defendant Blue Raven Solar, LLC’s motion to
transfer under either the first-to-file doctrine or, alternatively, under 28 U.S.C. § 1404(a). (ECF

No. 31.) Defendants Renovation Referral LLC and Gabriel Solomon have filed a notice joining
in Blue Raven’s motion. (ECF No. 32.) Plaintiff Kenneth Johansen has filed a notice of nonopposition (ECF No. 35.) For the following reasons, Defendant’s motion is GRANTED.
I.
“The first-to-file rule is a well-established doctrine that encourages comity among federal
courts of equal rank.” Aero Advanced Paint Tech., Inc. v. Int'l Aero Prod., LLC, 351 F. Supp. 3d
1067, 1070 (S.D. Ohio 2018) (citing Zide Sport Shop of Ohio, Inc. v. Ed Tobergte Assocs., Inc.,
16 F. App'x 433, 437 (6th Cir. July 31, 2001)). “’The rule provides that when actions involving
nearly identical parties and issues have been filed in two different district courts, the court in
which the first suit was filed should generally proceed to judgment.’” Id. (quoting Certified
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Restoration Dry Cleaning Network, LLC v. Tenke Corp., 511 F.3d 535, 551 (6th Cir. 2007))
(internal quotations omitted). If the rule applies, a court may transfer, stay, or dismiss the later
filed action. Id. (citing NCR Corp. v. First Fin. Comput. Servs., Inc., 492 F. Supp. 2d 864, 866
(S.D. Ohio 2004); see also Smithers-Oasis Co. v. Clifford Sales & Mktg., 194 F. Supp. 2d 685,
688 (N.D. Ohio 2002) (transferring action to first-filed court); Strategic Ambulance, Inc. v.
Martinez, No. 1:05-CV-598, 2006 WL 462430, at *3–4 (S.D. Ohio Feb. 24, 2006) (same).
In deciding whether the first-to-file rule applies, a court should look to three factors: (1)
the chronology of the actions; (2) the similarity of the parties involved; and (3) the similarity of
the issues at stake. Aero Advanced Paint, 351 F. Supp. 3d at 1070 (citing Plating Res., Inc. v.
UTI Corp., 47 F. Supp. 2d 899, 903 (N.D. Ohio 1999). “’The parties and issues need not be
identical but may be substantially similar.’” Id. (quoting AK Steel Corp. v. Jermax, Inc., No.
1:09-cv-620, 2010 WL 11538475, at *2 (S.D. Ohio May 17, 2010)).
Here, there is no dispute that the putative class action captioned as Naiman v. Blue Raven
Solar, LLC, Case No. 2:19-cv-01643 (D. Nev.) and filed on September 18, 2019, alleging
violations of the TCPA was filed first. Further, as Blue Raven explains, the parties in the two cases
are substantially similar, including identical defendants. Finally, Blue Raven asserts, and no party
disagrees, that the cases involve substantial overlap of identical and dispositive issues.

Because all three factors have been met, the Court concludes that the first-to-file rule is
applicable here. Nevertheless, the Court has the “’discretion to dispense with the first-to-file rule
where equity so demands.’” Aero Advanced Paint, 351 F. Supp. 3d at 1072 (citing AK Steel
Corp., 2010 WL 11538475, at *2 (S.D. Ohio May 17, 2010)). “’Factors that weigh against
enforcement of the first-to-file rule include extraordinary circumstances, inequitable conduct,
bad faith, anticipatory suits, and forum shopping.’” Id. (quoting Certified Restoration Dry
Cleaning Network, L.L.C., 511 F.3d at 551–52 (quoting Zide Sport Shop of Ohio, Inc., 16 F.
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Case 2:20-cv-02116-JCM-BNW Document 38 Filed 11/17/20 Page 3 of 3

App'x at 437)). No such extraordinary circumstance exists in this case such that the Court should
decline to apply the first-to-file rule. Accordingly, in the exercise of its discretion under the firstto-file rule, the Court will transfer this case to the District of Nevada, where the first-filed case is
currently pending. Moreover, in light of Plaintiff’s notice that he does not oppose, equity favors
transfer.
Finally, because this action will be transferred under the first-to-file rule, the Court does
not address, and expresses no opinion as to whether a transfer pursuant to Section 1404(a) would
be proper.
For the reasons set forth above, Blue Raven’s motion (ECF No. 31) is GRANTED. The
Clerk is DIRECTED to TRANSFER this action to the United States District Court for the
District of Nevada. Further, the Court stays any responsive pleading deadline pending scheduling
by the transferee court.
IT IS SO ORDERED.

Date: November 17, 2020

/s/ Elizabeth A. Preston Deavers_________
ELIZABETH A. PRESTON DEAVERS
CHIEF UNITED STATES MAGISTRATE JUDGE

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