Michel v. Petco Animal Supplies Stores, Inc. et al
MEMORANDUM OF DECISION AND ORDER: As set forth in the Court's May 18, 2017 Memorandum of Decision and Order, Defendants' motion to dismiss, or in the alternative to transfer or stay the case #24 , is GRANTED in part and DENIED in part. The case is hereby TRANSFERRED to the Southern District of California. See attached Memorandum and Order for details. The Clerk of the Court is respectfully directed to transfer this matter to the Southern District of California. Ordered by Judge LaShann DeArcy Hall on 5/18/2017. (Valentin, Winnethka)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
DESERIE MICHEL, on behalf of herself and all others
DECISION AND ORDER
16-cv-1838 (LDH) (PK)
-againstPETCO ANIMAL SUPPLIES STORES, INC., and PETCO
LASHANN DEARCY HALL, United States District Judge:
Plaintiff Deserie Michel brings the instant action against Defendants Petco Animal
Supplies Stores, Inc. and Petco Holdings, Inc. (collectively, “Petco” or “Defendants”) on behalf
of a purported class of Assistant Store Managers at Petco in New York, alleging violations of the
New York Labor Law (“NYLL”).
The Kellgren Action
Kellgren v. Petco, which is pending in the Southern District of California, is a nationwide
Fair Labor Standards Act (“FLSA”) collective action brought by Assistant Store Managers at
Petco against Petco Animal Supplies, Inc., Petco Holdings, Inc., and “Does 1 to 100.” (See Am.
Compl. ¶ Introduction, Kellgren v. Petco, No. 13-cv-644 (S.D. Cal.), ECF No. 20. (“Kellgren
Compl.”).) The Kellgren complaint alleges that the defendants improperly classified Assistant
Store Managers as exempt from overtime pay and accordingly failed to pay proper overtime
wages. (Id. ¶¶ 34-36.) The Kellgren complaint alleges only violations of the FLSA. (Id. ¶¶ 4759.) Discovery in Kellgren is still progressing and is scheduled to be completed by August 2,
2017. (Second Am. Scheduling Order, Kellgren v. Petco, No. 13-cv-644 (S.D. Cal.), ECF No.
184.) One hundred and fifty-eight New York Assistant Store Managers were sent a notice and
consent form to join the Kellgren action. (Reply Decl. of Maneker ¶ 10, ECF No. 26-1.) Thirtythree individuals chose to opt in, including Michel. (Id.; see Notice of Filing Consents to
Become Party Plaintiffs, Kellgren v. Petco, No. 13-cv-644 (S.D. Cal.), ECF No. 118.)
The Instant Action
Michel filed the instant complaint on April 14, 2016, two weeks after she opted into the
Kellgren case on March 31, 2016. (Compl., ECF No. 1 (“Michel Compl.”); see Notice of Filing
Consents to Become Party Plaintiffs, Kellgren v. Petco, No. 13-cv-644.) Michel was employed
by Defendants from September 2013 to February 2015 as an Assistant Store Manager at a Petco
store in Brooklyn, New York. (Michel Compl. ¶ 2.) Michel alleges that Defendants improperly
classified Assistant Store Managers as exempt from the overtime pay requirements of the NYLL,
resulting in a failure to pay overtime wages. (Id. ¶¶ 25, 41-45.) In addition, Michel alleges that
Defendants failed to comply with the NYLL’s wage statement and record-keeping requirements.
(Id. ¶¶ 46-53.) The complaint is limited to New York state law claims and does not allege any
violations of the FLSA. On September 15, 2016, Defendants moved to dismiss the complaint or,
in the alternative, to transfer the case to the Southern District of California or stay the case.
(Defs.’ Notice of Mot., ECF No. 24.) Defendants’ motion to dismiss or stay the case is denied. 1
For the reasons discussed below, Defendants’ motion to transfer the case is granted.
A stay would not be appropriate in this case because “[r]etaining jurisdiction for subsequent adjudication of the
instant action would unnecessarily require the Court to reexamine parallel issues” that will be raised in the Kellgren
case. Wyler-Wittenberg v. MetLife Home Loans, Inc., 899 F. Supp. 2d 235, 247 (E.D.N.Y. 2012). Such a reexamination would be a waste of the parties’ time and the Court’s resources. The Court declines to dismiss the case
pursuant to the first-filed rule out of its concern that the thirty-seven purported New York Plaintiffs who did not
have the opportunity to opt into the Kellgren case will lose the opportunity to have their claims heard.
A court typically evaluates a motion to transfer under 28 U.S.C. § 1404 under a two-
pronged inquiry. First, the court must determine whether the proposed venue is proper. That is,
“whether the action sought to be transferred is one that ‘might have been brought’ in the district
court in which the movant seeks to have the case litigated.” Blechman v. Ideal Health, Inc., 668
F. Supp. 2d 399, 403 (E.D.N.Y. 2009) (quoting Frasca v. Yaw, 787 F. Supp. 327, 330 (E.D.N.Y.
Second, if the proposed venue is proper, the court considers “whether the transfer will
serve the convenience of witnesses and parties and is in the interests of justice.” Id. In making
this second inquiry, the court takes into account several factors, including: (1) the convenience
of the parties; (2) the convenience of witnesses; (3) the relative means of the parties; (4) the
locus of operative facts and relative ease of access to sources of proof; (5) the attendance of
witnesses; (6) the weight accorded the plaintiff’s choice of forum; (7) calendar congestion;
(8) the desirability of having the case tried by the forum familiar with the substantive law to be
applied; (9) practical difficulties; and (10) trial efficiency and how best to serve the interests of
justice, based on an assessment of the totality of material circumstances. Id. (collecting cases
and outlining factors for fairness analysis). None of these factors are singularly dispositive, and
the court has “broad discretion in determining whether transfer is warranted.” Id.; see also In re
Cuyahoga Equip. Corp., 980 F.2d 110, 117 (2d Cir. 1992) (“[M]otions to transfer lie within the
broad discretion of the district court and are determined upon notions of convenience and
fairness on a case-by-case basis.”); Am. Steamship Owners Mut. Prot. and Indem. Ass’n, Inc. v.
Lafarge North Am., Inc., 474 F. Supp. 2d 474, 480 (S.D.N.Y. 2007) (“‘There is no rigid formula
for balancing these factors and no single one of them is determinative’ in what is ‘essentially an
equitable task left to the Court’s discretion.’”). The party moving for a change of venue bears
the burden to clearly establish that transfer is appropriate. Longo v. Wal-Mart Stores, Inc., 79 F.
Supp. 2d 169, 170 (E.D.N.Y. 1999).
However, when more than one court has concurrent jurisdiction over an action involving
the same parties and issues, a threshold inquiry will be made under the “first-filed rule.”
Blechman, 668 F. Supp. 2d at 404 (outlining first-filed rule). The first-filed rule is a “wellsettled legal doctrine, instructing that ‘where there are two [or more] competing lawsuits, the first
suit should have priority, absent the showing of balance of convenience or special circumstances
giving priority to the second.’” Wyler-Wittenberg., 899 F. Supp. 2d at 243 (quoting First City
Nat. Bank and Trust Co. v. Simmons, 878 F.2d 76, 79 (2d Cir. 1989). This approach “enables
courts to prevent ‘duplicative litigation by adhering to the inherently fair concept that the party
who commenced the first suit should generally be the party to attain its choice of venue.’” Id.
(quoting Ontel Prods., Inc. v. Project Strategies Corp., 899 F. Supp. 1144, 1150 (S.D.N.Y.
1995)). The burden of showing such special circumstances or balance of convenience is on the
party seeking to proceed with the second action. Quality King Distribs., Inc. v. KMS Research,
Inc., 946 F. Supp. 233, 237 (E.D.N.Y. 1996).
a. The First Filed Rule Favors Transfer
The first-filed rule favors transfer in this case. Kellgren is the first-filed action. Proper
application of the first-filed rule requires that the first and subsequently filed cases have
substantially similar—but not identical—parties and claims. Wyler-Wittenberg, 899 F. Supp. 2d
at 244, 249 (citing Spotless Enters. Inc. v. The Accessory Corp., 415 F. Supp. 2d 203, 205-06
(E.D.N.Y. 2006)) (“[A]pplication of the rule does not require identical parties in the cases, but
merely requires ‘substantial overlap.’”). These requirements are met in this case.
First, the parties substantially overlap. Michel is a plaintiff in both cases, and Petco
Animal Supplies, Inc. and Petco Animal Holdings, Inc. are the defendants in both cases.
(Compare Michel Compl., with Kellgren Compl. and Notice of Filing Consents to Become Party
Plaintiffs, Kellgren v. Petco, No. 13-cv-644.) Both Michel and Kellgren are brought on behalf of
Assistant Store Managers at Petco. (Michel Compl. ¶¶ Introduction, 16; Kellgren Compl. ¶ 1.)
Although the putative class in the instant case is limited to Assistant Store Managers in New
York, Kellgren is a collective action brought on behalf of current and former Assistant Store
Managers nationwide. (Michel Compl. ¶¶ Introduction, 16; Kellgren Compl. ¶ 1.) Indeed, one
hundred and fifty-eight of one hundred and ninety-five putative class members in the instant case
were served with a notice and consent form in Kellgren. (Maneker Reply Decl. ¶ 10.) Thirtythree of those individuals opted into that action. (Id.) It follows, then, that Kellgren’s
nationwide collective class covers a substantial proportion of the putative class members in the
instant case. See Wyler-Wittenberg, 899 F. Supp. 2d at 244 (finding “vast similarities” among
the individual plaintiffs in the putative collective and class actions because each plaintiff had a
similar job title and worked for the same defendant employer, even though seventy-five plaintiffs
who opted in to second-filed action were not plaintiffs in first-filed case); Fisher v. Rite Aid
Corp., No. 09-cv-1909, 2010 WL 2332101, at *2 (D. Md. June 8, 2010) (“Although the classes
in the two cases may eventually include different individuals, each class is similarly defined to
include current and former assistant managers of [defendant-corporation].”). Accordingly, the
parties sufficiently overlap under the first-filed rule.
Second, Kellgren and the instant case involve substantially similar claims. The Kellgren
complaint consists of one cause of action regarding the failure to pay overtime wages. (Kellgren
Compl. ¶¶ 47-59.) The instant complaint consists of two causes of action: failure to pay
overtime wages under the NYLL and failure to comply with the NYLL’s record-keeping
requirements. (Michel Compl. ¶¶ 41-45, 46-53.) The core inquiry of the two cases concerns
whether Petco violated labor laws by misclassifying their Assistant Store Managers as exempt
from overtime requirements and thereby failing to compensate them for overtime. Indeed, courts
analyzing NYLL overtime claims have applied the same analysis used to evaluate FLSA
overtime claims due to the substantial similarity in their provisions. Ethelberth v. Choice Sec.
Co., 91 F. Supp. 3d 339, 360 (E.D.N.Y. 2015) (quoting Santillan v. Henao, 822 F. Supp. 2d 284,
292 (E.D.N.Y. 2011)) (noting that, as the state analogue to the federal FLSA, the NYLL largely
mirrors the FLSA in compensation provisions regarding minimum hourly wages and overtime);
see also Lloyd v. J.P. Morgan Chase & Co., No. 11-cv-9305, 2012 WL 3339045, at *2
(S.D.N.Y. Aug. 14, 2012) (“Courts that transfer wage and hour actions under the first-filed rule
generally do so when the collective identified in a state-law based second-filed action falls within
the scope of a nationwide FLSA collective asserted in the first-filed action.”). Based on the
allegations raised in both complaints, the Court finds that the two actions raise substantially
Plaintiff argues against this conclusion, contending that the claims in the instant case are
not substantially similar to those alleged in Kellgren. Plaintiff primarily relies on the fact that
the alleged NYLL wage notice and record-keeping violations at issue in the instant case have no
counterpart under the FLSA and are not at issue in Kellgren. (Pl. Mem. Law in Opp. to Mot. to
Dismiss, Stay, or Transfer Action 6, ECF No. 25.) However, the Kellgren complaint contains
factual allegations that are identical to Plaintiff’s NYLL recordkeeping claim. Specifically, the
Kellgren complaint states that, “Defendants’ willful violations of the FLSA are further
demonstrated by the fact that throughout the Collective Action Period and continuing to the
present, Defendants failed to maintain accurate and sufficient time records[.]” (Kellgren Compl.
¶ 41.) This language is remarkably similar to the language that Michel uses in the instant
complaint: “Throughout the relevant time periods, including during Plaintiff’s own employment,
Defendants failed to maintain accurate and sufficient time records, as required by the NYLL.”
(Michel Compl. ¶ 40.) Plaintiff’s argument is simply unpersuasive.
b. The Balance of Convenience Favors Transfer
Having determined that the first-filed rule favors transfer, the Court must still assess
whether countervailing factors articulated under 28 U.S.C. § 1404 require the denial of transfer.
See Blechman, 668 F. Supp. 2d at 404 (“[I]f ‘there are countervailing factors, transfer may be
denied even if the existence of a pending related action in the proposed transferee district would
otherwise favor transfer.’” (quoting Am. Steamship Owners Mut. Prot. and Indem. Ass’n, Inc.,
474 F. Supp. 2d at 482)). As a threshold issue, there is no dispute that this action could have
been brought in the Southern District of California. A civil action may be brought in a judicial
district in which any defendant resides, if all defendants are residents of the state in which the
district is located. 28 U.S.C. § 1391(b)(1); see also Scherillo v. Dun & Bradstreet, Inc., 684 F.
Supp. 2d 313, 318 (E.D.N.Y. 2010) (finding, for purposes of transfer analysis, that action could
have been brought in District of New Jersey because defendant’s principal place of business was
in New Jersey). Defendants reside within the Southern District of California, with their principal
place of business in San Diego. (Michel Compl. ¶ 4.) Accordingly, the Court is satisfied that
Michel could have filed her complaint in the Southern District of California in the first instance.
Further, countervailing factors do not require that transfer be denied in this case. As to
the convenience to the parties, Plaintiff argues that she will be inconvenienced if the case is
transferred to the Southern District of California. (Pl.’s Opp. 16-17.) It is true that a plaintiff’s
choice of forum is generally entitled to considerable weight and should not be disturbed unless
other factors weigh strongly in favor of transfer. Wyler-Wittenberg, 899 F. Supp. 2d at 249.
However, Plaintiff’s argument is unavailing because she opted into the Kellgren litigation in
advance of filing the instant complaint. See Mazzatini 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 first-filed case] in Pennsylvania
as a plaintiff long before she even filed this lawsuit.”) Further, the presumption favoring a
plaintiff’s chosen forum has been afforded little weight in situations where, as here, the first-filed
rule favors litigation in the forum in which the first suit was brought. See Wyler-Wittenberg, 899
F. Supp. 2d at 249 (“[B]ecause the ‘first-filed’ rule favors litigation in the forum in which the
first suit is brought, the Court finds that [plaintiff’s] choice of forum is not entitled to substantial
The Court is also unpersuaded by Plaintiff’s argument that a federal court in New York is
in a substantially better position to interpret New York law than a federal court in California.
(See Pl. Opp. 16.) The NYLL “is not overly complex so as to unduly burden the California
district court.” Wyler-Wittenberg, 899 F. Supp. 2d at 249. As to the relative means of the
parties, the parties have not provided the Court with evidence of this factor. However, the Court
finds it fair to assume that, as Defendants are corporate entities and Plaintiffs are individual
employees thereof, this factor weighs against transfer. The question of the locus of the operative
facts, witnesses and evidence are factual issues in dispute, and as such, the Court cannot make a
determination as to this factor.
The factor of trial efficiency and how best to serve the interest of justice weighs strongly
in favor of transfer. The instant case is still in its early stages, and discovery in Kellgren has
been underway for a significant time. See Wyler-Wittenberg, 899 F. Supp. 2d at 250 (early stage
of second-filed case weighed in favor of transfer). Further, because discovery is not scheduled to
close in Kellgren until August 2017, Plaintiff and her fellow purported class members will have
ample time to participate in the discovery process. No economies would be gained by requiring
the parties to conduct duplicative discovery and dispositive motion practice in two different
In light of the application of the first-filed rule and based upon the totality of the
circumstances, transfer is appropriate.
For the foregoing reasons, Defendants’ motion to dismiss, stay, or transfer the case is
granted. The case is transferred to the Southern District of California.
LASHANN DEARCY HALL
United States District Judge
Dated: Brooklyn, New York
May 18, 2017
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