Burns v. Gerber Products Company et al

Filing 46

ORDER GRANTING DEFENDANT'S MOTION TO TRANSFER, TRANSFERRING CASE TO THE DISTRICT OF NEW JERSEY, AND CLOSING FILE; granting 33 Motion to Change Venue. Case transferred to District of New Jersey. Signed by Senior Judge Edward F. Shea. (CV, Case Administrator)

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2
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

5
6

8
9

No.

RYAN BURNS, on behalf of himself
and all others similarly
situated,
Plaintiff,

7

11
12

ORDER GRANTING DEFENDANT’S MOTION
TO TRANSFER, TRANSFERRING CASE TO
THE DISTRICT OF NEW JERSEY, AND
CLOSING FILE

v.

10

CV-12-5027-EFS

GERBER PRODUCTS COMPANY d/b/a
NESTLE INFANT NUTRITION, and
NESTLE USA, INC.,
Defendants.

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14

I.

15

INTRODUCTION

16

This matter comes before the Court on Defendants Gerber Products

17

Company and Nestlé USA, Inc.’s (collectively, “Defendants”) Motion to

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Transfer, ECF No. 33.

19

and

20

pursuant to 28 U.S.C. § 1404(a), to the District of New Jersey, where

21

a consolidated class-action suit asserting near-identical claims is

22

currently pending.

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on February 5, 2013.

24

Plaintiff.

Dale

25

Defendants.

Having

26

applicable

authority,

Nestlé

USA

Defendants Gerber Products Company (“Gerber”)

(“Nestlé”)

ask

the

Court

to

transfer

this

case,

The Court heard telephonic argument on the motion
Jack Fitzgerald appeared and argued on behalf of

Joseph

Giali

reviewed
and

appeared
the

being

and

parties’

fully

argued

on

submissions

informed,

ORDER GRANTING DEFENDANT’S MOTION TO TRANSFER AND
TRANSFERRING CASE TO THE DISTRICT OF NEW JERSEY - 1

the

behalf

of

and

the

Court

orally

1

granted Defendant’s motion at the hearing.

2

and supplements the Court’s oral ruling.
II.

3

This Order memorializes

BACKGROUND

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This case is one of ten near-identical false advertising class

5

actions filed against Gerber and Nestlé between February 2012 and

6

April 2012 in various district courts throughout the country.

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least five of the ten suits have been consolidated in the District of

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New Jersey as In re Gerber Probiotic Sales Practices Litigation, Civ.

9

No. 12-835 (JLL) (CLW) (D.N.J. 2012) (“In re Gerber”), including the

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first-filed

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District of California to the District of New Jersey.

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cases remain in California.

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three groups of plaintiffs’ counsel: the Weston Firm (California), the

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Law Offices of Ronald A. Marron (California), and Carella, Byrne,

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Cecchi, Olstein, Brody & Agnello (New Jersey).

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counsel to Plaintiff in this instant case, is also counsel of record

17

in two of the pending California suits.

18

Siddiqi

case,

which

was

transferred

from

the

At

Central

Four other

Each of the ten suits was filed by one of

The Weston Firm,

On June 27, 2012, Defendants filed a Motion to Dismiss or, in

19

the Alternative, to Transfer, ECF No. 13.

While that motion was

20

pending, on August 3, 2012, Plaintiff filed a Motion to Stay Pending

21

Resolution of MDL Motion to Transfer, ECF No. 20.

22

this Court to stay proceedings in this suit while his motion for

23

consolidation was pending before the Judicial Panel on Multi-District

24

Litigation (“MDL Panel”).

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on the parties’ motions, the Court denied in part and held in abeyance

26

in part Defendants’ motion, finding that dismissal was not warranted

Plaintiff asked

On September 4, 2012, following a hearing

ORDER GRANTING DEFENDANT’S MOTION TO TRANSFER AND
TRANSFERRING CASE TO THE DISTRICT OF NEW JERSEY - 2

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but deferring judgment on the issue of transfer until the MDL Panel

2

had resolved Plaintiff’s consolidation motion.

3

granted Plaintiff’s motion to stay.

4

Panel denied Plaintiff’s motion to consolidate.

Id.

ECF No. 27.

The Court

On October 16, 2012, the MDL
ECF No. 28.

5

With the Court’s leave, Plaintiff filed an amended complaint,

6

asserting only Washington state-law claims on behalf of a putative

7

class of Washington consumers.

8

transfer to the District of New Jersey for consolidation with In re

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Gerber.

Defendants again seek

III. DISCUSSION

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11

ECF No. 32.

A.

Legal Standard

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A district court may transfer a civil action to another district

13

where it might have been brought “[f]or the convenience of parties and

14

witnesses [and] in the interest of justice[.]”

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Transfer is warranted “to prevent the waste of time, energy and money

16

and to protect litigants, witnesses and the public against unnecessary

17

inconvenience and expense.”

Van Dusen v. Barrack, 376 U.S. 612, 616

18

(1964)

omitted).

19

motions

20

consideration of convenience and fairness.”

21

Corp., 487 U.S. 22, 29 (1988) (internal quotations omitted).

22

factors the Court may consider in evaluating a motion to transfer

23

under § 1404(a) include:

24
25
26

(internal
for

quotations

transfer

according

to

an

28 U.S.C. § 1404(a).

Courts

are

“to

individualized,

adjudicate

case-by-case

Stewart Org. v. Ricoh

(1) the location where the relevant agreements were
negotiated and executed, (2) the state that is most
familiar with the governing law, (3) the plaintiff's choice
of forum, (4) the respective parties' contacts with the
forum, (5) the contacts relating to the plaintiff's cause

ORDER GRANTING DEFENDANT’S MOTION TO TRANSFER AND
TRANSFERRING CASE TO THE DISTRICT OF NEW JERSEY - 3

Some

3

of action in the chosen forum, (6) the differences in the
costs of litigation in the two forums, (7) the availability
of compulsory process to compel attendance of unwilling
non-party witnesses, and (8) the ease of access to sources
of proof.

4

Jones v. GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 2000)

5

(citing Stewart Org., 487 U.S. at 29).

6

soundly within the discretion of the trial court.

7

Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986).

8

B.

1
2

Transfer under § 1404(a) lies
Decker Coal Co. v.

Analysis

9

The MDL Panel initially denied consolidation under 28 U.S.C. §

10

1407, finding instead that “where a reasonable prospect exists that

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resolution

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character of a litigation, transfer under [§] 1404 is preferable.”

13

MDL Order Denying Transfer, ECF No. 28, at 3.

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has hinted that it expects the various district courts to transfer all

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of

16

willingness to revisit consolidation if the cases are not transferred:

17

We are sympathetic to the concern expressed by the
defendants at the hearing session that, if any of their
motions to transfer are denied, they may find themselves
litigating actions on opposite ends of the country
involving duplicative discovery and warring plaintiffs’
counsel.
Should that occur, the parties may file another
[§] 1407 motion, and the Panel will revisit the question of
centralization at that time.

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19
20

the

of

[§]

Gerber

1404

cases

to

motions

New

could

Jersey,

eliminate

the

the

multidistrict

Although the MDL Panel

panel

has

indicated

a

21
ECF No. 28, at 4.
22
As Defendants correctly observe, this transfer motion is unlike
23
the

typical

binary

“either-or”

transfer

motion,

because

the

24
consolidated

In

re

Gerber

action

will

continue

in

New

Jersey

25
regardless of the outcome of this transfer motion.
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ORDER GRANTING DEFENDANT’S MOTION TO TRANSFER AND
TRANSFERRING CASE TO THE DISTRICT OF NEW JERSEY - 4

Thus, the Court

1

cannot simply weigh the benefits and costs of Washington versus New

2

Jersey as the forum for Plaintiff’s case; instead, the question is

3

whether this suit should be consolidated with In re Gerber in New

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Jersey, or whether it should proceed simultaneously – and separately –

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in Washington.
Each of the Jones transfer factors is analyzed below.

6

But the

7

Court is also mindful that while the Jones factors may guide the Court

8

in determining whether transfer is warranted, those factors must also

9

be

weighed

against

another,

unnecessary

ultimately

limited judicial resources if transfer is denied.

12

judicial

13

Johansson v. Cent. Garden & Pet Co., No C 10-03771 MEJ, 2010 WL

14

4977725, at *3 (N.D. Cal. Dec. 2, 2010) (citing Stein v. Immelt, No.

15

3:09-CV-808 (RNC), 2010 WL 598925, at *2 (D. Conn. Feb. 18, 2010)

16

(emphasis added)).

in

situations

–

the

11

paramount

avoidable

factor:

significant,

are

and

dispositive

10

efficiency

–

potentially

burden

on

“Concerns over
such

as

this.”

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1.

Crux of the Case

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In this case, no agreement was directly negotiated or executed

19

between the parties; thus, in assessing the first Jones factor — “the

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location where the relevant agreements were negotiated and executed,”

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Jones, 211 F.3d at 498 — the proper question is instead where the

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“crux of the case” lies.

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DDP

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(evaluating where the crux of the case lies, regardless of where the

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underlying purchase of consumer goods occurred).

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false-advertising class-action, the court found that a plaintiff’s

(JCGx),

2012

WL

See Jovel v. i-Health, Inc., No. CV 12-05526
5470057,

at

*6

(C.D.

Cal.

Nov.

8,

2012)

In Jovel, a similar

ORDER GRANTING DEFENDANT’S MOTION TO TRANSFER AND
TRANSFERRING CASE TO THE DISTRICT OF NEW JERSEY - 5

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purchase of a product in her home district carried “little weight” in

2

determining proper venue.

3

crux of the case lies not in [plaintiff’s] act of purchasing the

4

product . . . but instead in issue of the alleged misrepresentations .

5

. . .”

6

(CAB), 2011 WL 1456096, at *2 (S.D. Cal. Apr. 13, 2011) (finding that

7

the “operative facts” in a false-advertising class action occurred in

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defendant’s preferred forum because defendant was headquartered and

9

made decisions regarding product marketing in that forum).

Id.

Instead, the Court concluded that “the

Id.; see also Rikos v. Procter & Gamble Co., No. 10CV1974 BEN

Thus, the crux of the present case is not Washington, the state

10
11

where

Plaintiff

12

product,

13

headquartered and allegedly issued misrepresentations concerning its

14

products.

15

marketing of certain Gerber consumer goods, and decisions about how

16

such goods were to be advertised to consumers.1

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weighs in favor of transfer to New Jersey.

but

purports
rather

to

New

have

purchased

Jersey,

the

a

state

falsely
where

advertised
Gerber

is

The primary focus of this action is the development and

This factor therefore

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2.

Familiarity with Governing Law

19

Another factor the Court must consider in weighing a transfer is

20

which

court

21

Jones, 211 F.3d at 498.

22

only Washington state-law claims.

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“this

Court

is

is

most

in

a

familiar

with

the

applicable

governing

law.

In his amended complaint, Plaintiff asserts

better

Accordingly, it might appear that

position

to

decide

the

claims

under

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25
26

1

Gerber alleges – and Plaintiff does not dispute – that Nestlé will
play little, if any, substantive role in this litigation.

ORDER GRANTING DEFENDANT’S MOTION TO TRANSFER AND
TRANSFERRING CASE TO THE DISTRICT OF NEW JERSEY - 6

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Washington [law]” than the New Jersey court would be.

2

Trailers, LLC v. Cozad Trailer Sales, LLC, No. CV-10-0111-EFS, 2010 WL

3

2985701, at *2

4

Litig., 768 F. Supp. 2d 1074, 1081 (S.D. Cal. 2011) (reaching the same

5

conclusion

6

federal

7

states.

8

are “not especially complex or specialized”; it seems likely that

9

“[t]he resolution of this action will depend less on expertise in

(E.D. Wash. July 21, 2010); accord In re Ferrero

for

courts

Pac. Coast

claims

asserted

routinely

and

under

California

competently

apply

law).

the

laws

However,
of

other

And importantly, the Washington laws at issue in this case

10

[Washington]

law

and

more

on

the

court’s

fact-finding

function.”

11

Barnstormers, Inc. v. Wing Walkers, LLC, No.09CV2367 BEN (RBB), 2010

12

WL 2754249, at *3 (S.D. Cal. July 9, 2010).

This factor is neutral.

13

3.

Plaintiff’s Choice of Forum

14

Ordinarily, a plaintiff’s choice of forum is generally accorded

15

“great weight,” Lou v. Belzberg, 834 F.2d 730, 739 (9th Cir. 1987),

16

and is not disturbed except on a “strong showing of inconvenience,”

17

Decker Coal, 805 F.2d at 843.

18

represents a class, the named plaintiff’s choice of forum is given

19

less weight.”

20

class-action plaintiff’s choice of forum, the Court weighs the extent

21

of the plaintiff’s contacts with the forum.

22

resides in Washington, and all putative class members purchased the

23

allegedly misadvertised products in Washington.

24

choice to bring suit in Washington is afforded substantial weight, and

25

this factor counsels against transfer.

26

//

However, “when an individual . . .

Lou, 834 F.2d at 739.

In judging the weight to give a

Id.

ORDER GRANTING DEFENDANT’S MOTION TO TRANSFER AND
TRANSFERRING CASE TO THE DISTRICT OF NEW JERSEY - 7

Here, Plaintiff

Thus, Plaintiff’s

1

Moreover, during the hearing on this motion, Plaintiff’s counsel

2

expressed concern that if this Court ordered consolidation with In re

3

Gerber,

4

representative for Washington consumers - or the Washington state-law

5

claims might be omitted from the consolidated litigation.

6

the Court is concerned about this possibility, the Court considers it

7

an

8

judicial officer in In re Gerber will preserve the Washington state-

9

law claims and Washington subclass to ensure no putative Washington

10

plaintiff in this action is denied the right to pursue their chosen

11

cause of action.

either

unlikely

Plaintiff

outcome.

Ryan

The

Court

Burns

is

-

as

the

confident

that

putative

the

class

Although

presiding

12

4.

Parties’ Contacts with Washington and New Jersey

13

The parties’ contacts with the two potential venues for this

14

suit

also

bear

15

overlaps somewhat with the “crux of the case” factor above, the Court

16

must consider the extent of each party’s contacts with each forum, not

17

just where the gravamens of the case lies.

18

in Washington, and he allegedly purchased misadvertised products in

19

this forum.

20

as substantial, they are not de minimis: Gerber markets and sells its

21

products in Washington to residents of this state, and it collects

22

revenue from the citizens of this state.

23

the

24

contact with New Jersey (at least, relevant to this lawsuit), whereas

25

Gerber’s contacts are systematic and extensive.

26

fact

parties’

that

on

the

transfer

analysis.

Although

this

factor

Plaintiff lives and works

Although Gerber’s contacts with Washington are not nearly

positions

Gerber

is

are

reversed:

headquartered

In contrast, in New Jersey,
Plaintiff

in

New

ORDER GRANTING DEFENDANT’S MOTION TO TRANSFER AND
TRANSFERRING CASE TO THE DISTRICT OF NEW JERSEY - 8

apparently

has

no

In addition to the
Jersey,

Gerber’s

1

manufacturing and marketing employees are presumably located in New

2

Jersey, and decisions related to the marketing of Gerber’s products

3

are

4

contacts with Washington but only Gerber has contacts with New Jersey,

5

this factor weighs against transfer to New Jersey.

made

in

New

Jersey.

On

balance,

because

both

parties

have

6

5.

Costs of Litigation

7

Because In re Gerber will proceed regardless of whether this

8

case is transferred, there will only be a marginal, if any, cost

9

associated with consolidating this case with In re Gerber.

On the

10

other hand, if the Court were to deny transfer, the overall cost of

11

litigation will be effectively doubled because both suits will proceed

12

independently — and possibly with different Plaintiff’s counsel.

13

light of the cost savings that will occur if this case is consolidated

14

in New Jersey, this factor weighs heavily in favor of transfer.

In

15

6.

16

A party may compel the testimony of its employees at trial.

17

STX, Inc. v. Trik Stik, Inc., 708 F. Supp. 1551, 1556 (N.D. Cal.

18

1988).

19

extends to anywhere within the district and one hundred miles of the

20

place

21

convenience of third-party witnesses is generally a more important

22

consideration than that of party witnesses.

23

F. Supp. 2d at 1080.

24

Availability of Compulsory Process

However, for non-party witnesses, the Court's subpoena power

of

trial.

Neither

party

Fed.

has

Defendants

R.

Civ.

yet
assert

P.

45(b)(2).

identified
that

most

For

these

reasons,

In re Ferrero Litig., 768

any
of

potential
their

non-party

25

witnesses.

26

“presumably located in New Jersey,” and Plaintiff contends that he

ORDER GRANTING DEFENDANT’S MOTION TO TRANSFER AND
TRANSFERRING CASE TO THE DISTRICT OF NEW JERSEY - 9

witnesses

are

1

expects

expert

2

Thus,

3

witnesses, this factor is neutral.

in

the

4

7.

5

witnesses
absence

Because

from

of

around

specificity

the
as

country
to

to

participate.

potential

third-party

Access to Evidence; Convenience of the Parties & Witnesses
most

documentary

evidence

can

now

be

produced

6

electronically, absent some unique and presently-unknown difficulty,

7

the documentary evidence in this case is not likely to create

8

greater or lesser burden depending on whether this matter proceeds in

9

Washington or in New Jersey.

10

a

Thus, access to sources of proof is a

neutral factor.

11

As

to

12

manufacturing

13

testimony are likely located in New Jersey, although at this stage of

14

the litigation, the extent of the potential witness list and the

15

locations of those witnesses is largely unknown.

16

other hand, contends that because he lives in Washington, he would

17

bear a disproportionate expense if he had to travel and stay in New

18

Jersey

19

Defendants, as corporate entities, are better able to shoulder costs

20

of travel than Plaintiffs.

21

action suit, Plaintiff has little reason to travel to New Jersey: if

22

his

23

Washington.

24

witnesses in Washington, other than Plaintiff, have been identified.

to

party
and

witnesses,
marketing

participate

deposition

is

Fed.

in

Civ.

suggests

employees

this

who

matter.

that

would

most
offer

of

its

relevant

Plaintiff, on the

Plaintiff

argues

that

However, as a named plaintiff in a class-

required,
R.

Gerber

that
P.

deposition

45(a)(2)(B),

will

be

conducted

(b)(2)(B).

No

in

party

25

Alternatively, Plaintiff argues that the convenience of party

26

witnesses is not a factor warranting consideration, and that instead,

ORDER GRANTING DEFENDANT’S MOTION TO TRANSFER AND
TRANSFERRING CASE TO THE DISTRICT OF NEW JERSEY - 10

1

the Court should only consider the convenience of non-party witnesses,

2

such as experts.

3

who are employees of the defendant requesting transfer is entitled to

4

less weight” than the convenience of non-party witnesses.

5

v. Offshore Oil Servs., Inc., Civ. No. G-06-275, 2006 WL 2670984, at

6

*6 (S.D. Tex. Sept. 14, 2006) (internal quotation omitted).

7

convenience of party witnesses “is still a factor this Court may

8

consider,” Rikos, 2011 WL 1456096, at *2, and it favors transfer.

9

It is true that “the convenience of key witnesses

Hartfield

But the

As to non-party witnesses, neither Plaintiff nor Defendants have

10

specifically identified any.

11

that most non-party witnesses are likely to be experts, if the Court

12

declined to transfer this matter, those experts would presumably have

13

to travel twice: to New Jersey, for In re Gerber depositions, and to

14

Washington, for Burns depositions.

15

required should both matters proceed to trial.

16

showing that New Jersey is a less convenient forum for non-party

17

witnesses than Washington, and indeed, common sense suggests that it

18

is more convenient to consolidate all witness participation in one

19

forum and to reduce unnecessary travel.

20

favors transfer.

21

Accepting as true Plaintiff’s contention

Duplicative travel would also be
There has been no

Accordingly, this factor also

Finally, New Jersey is plainly the more convenient forum for

22

counsel.

Plaintiff’s counsel hails from San Diego; and while the

23

travel costs from California to New Jersey might be slightly higher

24

than the costs of travel from California to Washington, they are not

25

disproportionately

26

already be present in (or will be required to travel to) New Jersey to

so.

On

the

other

hand,

defense

ORDER GRANTING DEFENDANT’S MOTION TO TRANSFER AND
TRANSFERRING CASE TO THE DISTRICT OF NEW JERSEY - 11

counsel

will

1

participate in In re Gerber.

2

defense counsel would be also be required to travel to Washington for

3

proceedings in this matter.

5

Thus, this factor too favors transfer.
IV.

4
On

balance,

most

If this case were not transferred,

of

CONCLUSION
the

Jones

factors

favor

transfer.

6

Plaintiff’s choice of forum, and the extent of the parties’ contacts

7

with Washington, weigh against transfer.

8

case belongs in New Jersey; further, the convenience of the parties,

9

witnesses, and counsel, as well as the costs of litigation weigh just

However, the crux of the

10

as strongly — if not more so — in favor of transfer.

But ultimately,

11

Plaintiffs have not presented a compelling case sufficient to overcome

12

the “paramount” factor weighing in favor of transfer: judicial economy

13

and the conservation of limited judicial resources.

14

WL 4977725, at *3.

Johansson, 2010

Transfer is plainly warranted.

15

Accordingly, IT IS HEREBY ORDERED:

16

1.

Defendant’s Motion to Transfer, ECF No. 33, is GRANTED.

17

2.

This

matter

is

Court

hereby

18

District

19
3.

21

IT IS SO ORDERED.

22
23

the

District

to

of

the

New

United

for

all

The Clerk’s Office is directed to CLOSE this file.
The Clerk’s Office is directed to enter this

Order and provide copies to all counsel.
DATED this

12th

day of February 2013.

24
25

Jersey

States

subsequent proceedings.

20

for

TRANSFERRED

s/ Edward F. Shea
EDWARD F. SHEA
Senior United States District Judge

26
Q:\EFS\Civil\2012\5027.transfer.grant.lc2.docx

ORDER GRANTING DEFENDANT’S MOTION TO TRANSFER AND
TRANSFERRING CASE TO THE DISTRICT OF NEW JERSEY - 12