PONTRELLI v. MONA VIE, INC. et al

Filing 70

OPINION. Signed by Magistrate Judge Mark Falk on 10/27/2017. (JB, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

LISA PONTRELLI, in her individual
capacity and on behalf of all others
similarly situated,

Civil Action No. 13-4649 (WJM)

Plaintiff,
OPINION

v.
MONAVIE, INC. a Utah Corporation,
MONAVIE, LLC, a Delaware Limited
Liability Company, and DOES 1-10,
inclusive,
Defendants.

Falk, U.S.M.J.
This matter comes before the Court upon Plaintiff’s motion to transfer venue to the
United States District Court for the District of Utah pursuant to 28 U.S.C. § 1404(a).
(CM/ECF No. 59.) The motion is opposed. The motion is decided on the papers. Fed. R.
Civ. P. 78(b). For the reasons set forth below, Plaintiff’s motion to transfer is granted.

BACKGROUND
A.

The Instant Action
This is a putative class action for consumer fraud. Plaintiff Lisa Pontrelli

(“Plantiff” or “Pontrelli”) is a New Jersey resident. Defendant MonaVie, Inc. is a Utah
corporation. Defendant MonaVie, LLC is a limited liability company organized under the
laws of Delaware. MonaVie, Inc. and MonaVie, LLC (collectively “MonaVie” or
“Defendants”) have their principal place of business in South Jordan, Utah. (FAC at ¶
10.) MonaVie is in the business of manufacturing, distributing and advertising juice
products (“MonaVie Products”).1
Plaintiff purchased MonaVie Products in New Jersey for her personal use. (FAC ¶
54.) According to Plaintiff, Defendants advertised the health benefits of MonaVie
Products to include, among other things, extending life, managing diabetes, relieving
headaches and dizziness, and preventing morning sickness. (FAC ¶ 35.) Prior to
purchasing MonaVie Products, Plaintiff claims she relied upon advertisements,
representations, and statements made by Defendants about the alleged health benefits of
drinking MonaVie Products. (Id.) Plaintiff claims that she did not receive the advertised
benefits of MonaVie Products, that Defendants knew that their products did not provide
the health benefits purported in their advertising, and that she would not have purchased

1

“MonaVie Products” collectively refers to Defendants’ juice products known as
MonaVie Original, MonaVie Essential, MonaVie Active, Mona Vie Pulse, MonaVie (M)mun,
MonaVie Kosher, MonaVie E and MonaVie Lite. (FAC ¶ 1.)
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MonaVie Products had she known that Defendants’ representations were false. (FAC ¶¶
9, 41.)
Plaintiff commenced this class action on August 1, 2013. Plaintiff filed an
Amended Complaint on December 9, 2013, on behalf of herself and all other similarly
situated purchasers of MonaVie Products. The three-count Amended Complaint asserts
claims for violation of the New Jersey Consumer Fraud Act, N.J.S.A. § 56:8-1, et seq.,
common law fraud, and unjust enrichment. Plaintiff principally alleges that Defendants
falsely advertised MonaVie Products’ health benefits with the intent that consumers
would rely upon such misrepresentations. (FAC ¶ 70.)
Following dispositive motion practice, and prior to the close of discovery and class
certification briefing, the Court entered a consent order on January 22, 2016, staying the
case pending settlement negotiations in a companion action involving MonaVie’s
marketing of its juice products, Harbut v. MonaVie, Inc.,12-1983 (C.D. Cal. 2013)
(“Harbut”), then pending in the Central District of California. On February 21, 2017,
Pontrelli and the plaintiff in Harbut moved before the U.S. Judicial Panel on Multidistrict
Litigation (“MDL Panel”) under 28 U.S.C. § 1407 to authorize an MDL in the District of
Utah where an important declaratory judgment action, Starr Indem. & Liab. Co. v.
MonaVie, Inc. Inc., 14-393 (D.Utah May 23, 2014) (“Starr”), is pending. The MDL
Panel denied the motion on May 31, 2017. (CM/ECF No. 55).
On June 16, 2017, the Court entered an Order directing that all fact discovery
proceed on an expedited basis, closing discovery on August 21, 2017, and providing that
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any motion to transfer be filed by June 23, 2017. On June 21, 2017, Plaintiff moved to
transfer venue to the District of Utah. Subsequent to the filing of the instant motion, the
Central District of California transferred Harbut to the District of Utah.2
B.

The Starr Action
According to Plaintiff, Starr Indemnity and Liability Company (“Starr Indemnity”)

issued two insurance policies (“policies”) to MonaVie. Starr Indemnity and MonaVie
dispute whether the policies cover the claims filed by Pontrelli. On May 23, 2014, Starr
Indemnity filed a declaratory judgment action to resolve the coverage dispute (“Starr”).
MonaVie filed an Answer and Counterclaim on July 7, 2014.
On November 14, 2016, counsel for MonaVie filed a motion to withdraw stating
that MonaVie’s assets “were foreclosed upon” and that MonaVie was “no longer in
business.” On December 1, 2016, the District Court granted the motion. MonaVie failed
to have new counsel enter an appearance on its behalf. On December 22, 2016, Starr
Indemnity moved for entry of default. On December 23, 2016, Pontrelli and the plaintiff
in Harbut moved to intervene in Starr. (Pl.’s Br. 5.)3 According to Plaintiff, the motions
remain pending.

2

The Harbut court originally denied a motion to transfer to the District of Utah on June
23, 2017. However, on July 10, 2017, the court reconsidered and granted Harbut plaintiff’s
motion to transfer. Following the dismissal of defendant Juicey Acai, LLC (“Acai”), the court
concluded that only one fact connected the case to California–plaintiff’s purchase from Acai’s
website. Recognizing that all remaining parties, claims and alleged conduct occurred in Utah,
the court, in the interests of justice, granted the motion to transfer.
3

Citing Starr Indem. & Liab. Co. v. MonaVie, Inc. Inc., 14-393 (D.Utah May 23, 2014)
(ECF Nos. 39, 41, 44, 45).
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C.

Motion to Transfer
Plaintiff moved to transfer this case to the District of Utah pursuant to 28 U.S.C. §

1404(a) arguing that transfer is in the interests of justice and contending that changed
circumstances–MonaVie’s now defunct status and the repercussions from it– have
radically altered the litigation and make the District of Utah the only logical place to
continue this case. (Reply Br. 1.) Plaintiff argues that MonaVie’s foreclosure and total
lack of funds makes the case nearly impossible to resolve in the District of New Jersey
because the only asset from which Defendants can pay anything are insurance policies,
which are the subject of the Starr litigation in Utah. Plaintiff contends that MonaVie no
longer exists and is no longer in New Jersey. Plaintiff contends that a disposition in Starr
will have a direct implication on the instant case to the extent it determines whether the
policies are available to pay for the defense, and settlement or judgment in this case.
Plaintiff also points out that the majority of MonaVie’s now former employees who
Plaintiff seeks to depose, and who may be called to testify at trial, are based in Utah.4
Plaintiff maintains that transfer would reduce the cost of litigation for MonaVie which is
headquartered in Utah, as well as make it more convenient for the parties. Finally,
Plaintiff notes that she has moved to intervene in Starr in an effort to prevent the entry of

4

At the time Plaintiff filed this motion, discovery was still open. According to Plaintiff,
MonaVie stated that it would not be representing the ex-employees and therefore Plaintiff would
be required to secure their depositions in Utah by way of subpoena. Because discovery has since
closed, Plaintiff’s argument with respect to the impact of MonaVie’s defunct status on discovery
in this case is diminished.
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a declaratory judgment by default against MonaVie and hoping to preserve insurance
policies at issue to satisfy any judgment or pay for counsel in this case.
Somewhat strangely, MonaVie opposes the motion arguing that the factors to be
considered by the Court weigh against transferring this litigation to the District of Utah.5
MonaVie contends that the insurance coverage dispute in Starr has nothing to do with the
legal and factual issues raised in Plaintiff’s Amended Complaint. Asserting that there has
been no change of circumstances since the institution of this lawsuit that would warrant
transfer now, Defendants contend that Plaintiff’s motion is actually a strategic attempt to
engage in forum shopping. Finally, Defendants point to Plaintiff’s failed attempt to
centralize this case with the Harbut case before the MDL Panel as further reason why this
case should not be transferred to the District of Utah now.

DISCUSSION
A.

Transfer Standard Pursuant to § 1404(a)
Section 1404(a) confers federal courts with authority to transfer a case to another

district “where it may have been brought,” when doing so is “in the interest of justice”
and serves “the convenience of parties and witnesses.” 28 U.S.C. § 1404(a). The decision

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MonaVie also relies on the Harbut court’s original denial of a motion to transfer that
case to the District of Utah on June 23, 2017. However, as explained above, on July 10, 2017,
subsequent to the filing of the instant motion to transfer, the Harbut court reconsidered and
granted Harbut plaintiff’s motion to transfer. For this reason, MonaVie’s reliance on this
argument is diminished.
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to transfer a case under § 1404(a) rests within the sound discretion of a district court. See
Plum Tree, Inc. v. Stockment, 488 F.2d 754, 756 (3d Cir. 1973); Cadapult Graphic Sys.,
Inc. v. Tektronix, Inc., 98 F. Supp. 2d 560, 564 (D.N.J. 2000). The purpose of section
1404(a) “is to prevent the waste of ‘time, energy and money’ and to ‘protect litigants,
witnesses and the public against unnecessary inconvenience and expenses. . . .’” Ricoh
Co., Ltd. v. Honeywell, Inc., 817 F.Supp. 473, 479 (D.N.J. 1993) (quoting Van Dusen v.
Barrack, 376 U.S. 612, 616 (1964)).
The moving party bears the burden of establishing (1) that the proposed transferee
forum is one in which the case “might have been brought,” and (2) that in the interest of
justice, the proposed transferee forum is more convenient for the parties and witnesses.
See CIBC World Mkts., Inc. v. Deutsche Bank Sec., Inc., 309 F. Supp. 2d 637, 643
(D.N.J. 2004) (citations omitted). The moving party, however, is not required to show
“truly compelling circumstances for . . . change . . . [of venue, but rather, that] all relevant
things considered, the case would be better off transferred to another district.” In re
United States, 273 F.3d 380, 388 (3d Cir. 2001) (citations omitted).6

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As a threshold matter, the reviewing court must first determine whether the action could
have been brought in the transferee district. Shutte v. Armco Stell Co., 431 F.2d 22, 25 (3d Cir.
1970), cert. denied, 401 U.S. 910 (1971). The venue statute limits transfer to a district or
division “where [the case] may have been brought.” 28 U.S.C. § 1404(a). An action may be
transferred to another district only if that district would be proper venue for the action and that
forum is capable of asserting subject matter jurisdiction over the claims and in personam
jurisdiction over the defendants. See Yang v. Odom, 409 F. Supp. 2d 599, 604 (D.N.J. 2006).
There is subject matter jurisdiction over this action under the Class Action Fairness Act, 28
U.S.C. § 1332 (d). (Am. Compl.) The District of Utah has personal jurisdiction over both
defendants as they are residents of Utah. See 28 U.S.C. § 1332(c)(1). The parties do not dispute
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The court balances private and public interest factors to determine whether the
litigation would more conveniently proceed and the interests of justice would be better
served by a transfer. See Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d. Cir. 1995).
The private factors may include: (1) plaintiff’s original choice of venue; (2) defendant’s
forum preference; (3) where the claim arose; (4) convenience to the parties in light of
their financial and physical condition; (5) availability of witnesses in each of the fora; and
(6) the location of books and records. Jumara v. State Farm Ins. Co., 55 F.3d at 879.
Public concerns include but are not limited to: (1) the ability of each forum to enforce the
judgment; (2) practical considerations that would make trial more expeditious or
inexpensive; (3) court congestion; (4) local interest in deciding the controversy; (5) public
policies of each fora; and (6) familiarity with state law in diversity cases. Id. Thus,
courts consider “all relevant factors to determine whether on balance the litigation would
more conveniently proceed and the interest of justice be better served by transfer to a
different forum.” Id.; see also Clark v. Burger King Corp., 255 F. Supp. 2d 334, 337
(D.N.J. 2003). The “analysis is flexible and must be made on the unique facts of each
case.” Calkins v. Dollarland, Inc., 117 F. Supp. 2d 421, 428 (D.N.J. 2000) (citations
omitted).

that the case could have been brought in the District of Utah.
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B.

Anaysis under the Transfer Stardard
The Court finds that the interests of justice would be better served by transfer of

the case to the District of Utah given that any remnants of MonaVie are in Utah. In light
of the factually similar Harbut action recently having been transferred to Utah, and given
that Starr is also pending in Utah, transfer will likely promote judicial efficiency,
conserve judicial resources, and eliminate expense if all three matters are litigated there.
Moreover, changed circumstances which have arisen since this lawsuit was instituted–
specifically MonaVie going out of business and a foreclosure of its assets–favors transfer,
not to mention the fact that MonaVie’s former employees are in Utah. To permit this
litigation to continue here would be the precise wastefulness that section 1404(a) was
designed to prevent. For the reasons set forth more fully below, including the changed
circumstances impacting this litigation, the Court finds that transfer is appropriate here.
A plaintiff’s initial choice of venue generally is entitled to due consideration.
Shutte v. Armco Stell Co., 431 F.2d 22, 24 (3d Cir. 1970), cert. denied, 401 U.S. 910
(1971) (citation omitted.) This is particularly true when the plaintiff selects his home
forum. Sandvik, Inc. v. Continental Ins. Co., 724 F. Supp. 303, 307 (D.N.J. 1987)
(quoting Piper Aircraft Co. v. Reyno, 545 U.S. 235, 255 (1981)). Courts also give less
weight to a plaintiff’s forum preference when it chooses a forum that has little connection
to the facts of a case. See Tischio v. Bontex, Inc., 16 F. Supp. 2d 511, 521 (D.N.J. 1998);
Honeywell, 817 F. Supp. at 481-482; American Tel. & Tel. Co. v. MCI Communications

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Corp., 736 F. Supp. 1294, 1306 (D.N.J. 1990) (citations omitted). A plaintiff’s decision
to move to transfer the action undermines any weight given its initial choice of venue.
See Broadcom Corp. v. Qualcomm Inc., 2008 WL 3821404, *3 (D.N.J. Aug. 12 2008)
(citing Rappoport v. Steven Spielberg, Inc., 16 F. Supp. 2d 481, 500 (D.N.J. 1998)).
This is a somewhat unusual situation in that it is Plaintiff and not Defendants
moving to transfer venue. Although Plaintiff brought this action in New Jersey, her initial
choice of forum is not really important because she is the moving party under changed
circumstances. See Broadcom Corp., 2008 WL 3821404, *3. Furthermore, because
decisions to be rendered in two other cases pending in the District of Utah–namely Harbut
and Starr– will likely have implications on the parties’ claims in the instant case,
Plaintiff’s original choice to venue the case in New Jersey does not weigh against transfer
now. While Defendants point out that the case has been pending here for sometime, the
fact is that Plaintiff’s counsel only first learned of the pendency of Starr in July 2016.
(Declaration of George V. Granade (“Granade Dec.”) ¶¶ 6-7). Moreover, this case was
effectively stayed from January 22, 2016, through June 5, 2017. (CM/ECF No. 46.)
Given these events, it is not unreasonable that Plaintiff did not file her motion to transfer
until June 21, 2017, following the Court’s entry of an amended scheduling order.
Defendants’ preference to have the case continue in New Jersey is of little weight.
The fact is both Defendants have their principal place of business in Utah. MonaVie is no
longer in business and has no connection to New Jersey. To the extent it exists it is in
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Utah. Moreover, Defendants will now have to litigate the nearly identical Harbut case in
Utah since it was transferred from California to Utah on July 10, 2017. In light of these
circumstances, and the fact that class certification motions have yet to be filed and no trial
date has been set in this case, Defendants’ preference to proceed in this District is of
limited import.
Plaintiff concedes that consideration of where the claim arose weighs in favor of
keeping the case in New Jersey. Plaintiff purchased MonaVie Products in New Jersey in
reliance upon Defendants’ allegedly false and misleading representations in advertising.
But, as in Harbut, it is of little moment under the current circumstances.
The convenience of the parties weighs in favor of transfer. Courts look to the
relative physical and financial condition of parties in evaluating convenience. Santi v.
Nat’l Business Records Management, LLC, 722 F. Supp. 2d 602, 608 (D.N.J. 2010).
Defendants are headquartered in Utah. MonaVie is also a defendant in the Harbut and
Starr actions, both pending in Utah. It would appear that it would be more convenient for
Defendants to litigate this case in Utah, along with the other cases pending there.
Moreover, the financial condition of MonaVie weighs in favor of transfer to Utah. As
stated above, MonaVie is out of business and lacks assets other than potentially the Starr
insurance policies. At this juncture, Plaintiff claims that the insurance policies at issue
are her only source of possible recovery. While Plaintiff is a New Jersey resident, she
currently has a motion to intervene pending in the Starr action, and should it be granted,
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she will be litigating that case in Utah. Therefore, it would be more convenient for all
parties given their relative physical and financial condition to litigate all claims in Utah
where two of the three cases naming MonaVie as a defendant are already pending.
Plaintiff has said all witnesses are in Utah. However, in fairness, she has not been
very specific. But the fact is, all of the defense witnesses are in Utah. So this supports
transfer. See Teleconference Sys. v. Proctor & Gamble Pharm., Inc., 676 F. Supp.2d 321,
331 (D. Del. 2009) (convenience of witnesses and access to sources of proof are
important considerations in the 1404(a) analysis).
Practical considerations also weigh in favor of transfer. For one, a decision in
Starr could implicate the interests of Plaintiff, as is evidenced by her motion to intervene
in the case. Additionally, “[w]here related lawsuits exist, it is in the interest of justice to
permit suits involving the same parties and issues to proceed before one court and not
simultaneously before two tribunals.” Liggett Group v. R.J. Reynolds Tobacco Co., 102
F.Supp.2d 518, 537 (D.N.J. 2000). While neither the Harbut or Starr actions are
completely comprised of the same parties that are in this case, they share common issues
of fact and the resolution, at least of Starr, arguably will effect Plaintiff’s ability to settle
or obtain and collect on a judgment against MonaVie.
In addition, the relative congestion of the two districts as a factor strongly favors
transfer to Utah. The District of New Jersey is a heavily trafficked district. The Official

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Court statistics maintained by the Administrative Office of the U.S. Courts indicate that
New Jersey’s weighted case average is heavier than Utah’s.7
C.

Change in Circumstances
A change in circumstances may be a factor considered by the Court when deciding

a motion to transfer. Broadcom Corp., 2008 WL 3821404, *6 (citations omitted). The
presence of related cases in a transferee forum is a basis to grant a transfer. This
consideration tilts the balance in favor of transfer even when the convenience of the
parties and witnesses would suggest the opposite (which is not the case here). See id.
(quoting Weber v. Basic Comfort Inc., 155 F. Supp. 2d 283, 286 (E.D. Pa. 2001)).
The Court is satisfied that there has been a change in circumstances since the filing
of this lawsuit to warrant transfer of this case to the District of Utah. First, subsequent to
the commencement of this litigation, MonaVie went out of business. (Granade Dec. ¶ 5.)
Its assets were overtaken by foreclosure. Simply put, the company is no longer in
existence and MonaVie has no assets here. MonaVie’s defunct status now makes this
case nearly impossible to resolve in this District and proceeding with the litigation here is
dubious, given the possibility that MonaVie is not here and there will be no assets to
satisfy any possible judgment. While Starr is an action for indemnification and may not
7

Administrative Office of the U.S. Courts, Judicial Business, Table C-1; U.S. District
Courts–Civil Cases Commenced, Terminated, and Pending During the 12 Month Period Ending
September 30, 2016 (Sept. 30, 2016) http://www.uscourts.gov/sites/default/files
/data_tables/jb_c1_0930.2016.pdf.
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share the same facts and causes of action asserted here, its disposition implicates
Plaintiff’s interests in this case. In fact, Plaintiff has moved to intervene in Starr to
protect her interest in the insurance policies in the face of Starr Indemnity’s pending
motion for default against MonaVie. Second, since the filing of this action and more
particularly, since the filing of this motion, Harbut has been transferred to Utah. At this
juncture, it makes sense that the three actions related in some way to MonaVie or
MonaVie Products be disposed of in the same court. Broadcom Corp., 2008 WL
3821404, *6 (citations omitted).8
CONCLUSION
In sum, upon consideration of the totality of the circumstances, the Court
concludes that the District of Utah is the most appropriate forum for litigation of this
case. For the reasons stated above, Plaintiff’s motion to transfer venue to the United
States District Court for the District of Utah is granted. (CM/ECF No. 59.) A separate
Order accompanies this Opinion.

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Defendants point to the MDL Panel’s denial of Plaintiff’s application to centralize the
actions as a reason to deny transfer here. However, the MDL Panel’s decision was rendered prior
to the transfer of Harbut. More significantly, in denying the transfer, the MDL’s Order provided
that “cooperation among a few involved courts and counsel regarding discovery (such as on
coverage issues or other matters here) is a preferable alternative to centralization.” (CM/ECF
No. 55.) Given the timing of the denial, and the MDL Panel’s suggestion that centralization is
not necessarily the right vehicle when only a few cases are involved, its actions are not
particularly instructive on this motion.
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s/Mark Falk
MARK FALK
United States Magistrate Judge
DATED: October 27, 2017

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