PANITCH et al v. THE QUAKER OATS COMPANY

Filing 21

MEMORANDUM. AN APPROPRIATE ORDER FOLLOWS. SIGNED BY HONORABLE PAUL S. DIAMOND ON 4/5/17. 4/5/17 ENTERED AND COPIES E-MAILED TO COUNSEL, 1 COPY TO LEGAL BIN.(nl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
OREN PANITCH, et al.,
Plaintiffs,
v.
THE QUAKER OATS COMPANY,
Defendant.

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Civ. No. 16-4586

Diamond, J.

April 5, 2017
MEMORANDUM

This is the last of seven putative class actions filed across the country in which the
plaintiffs make the same key allegation: that the “100% Natural” labels on certain Quaker Oats
products are false and misleading. (Compl., Doc. No. 1.) Five of the earlier-filed cases are
proceeding in a consolidated action in the Northern District of Illinois. See Gibson v. Quaker
Oats Co., No. 16-4853 (N.D. Ill.). A sixth case was voluntarily dismissed. Quaker asks me to
transfer this case to the Northern District of Illinois under either the first-filed rule or 28 U.S.C.
§ 1404(a) or, in the alternative, to stay the case pending Gibson’s resolution. (Doc. No. 5.)
Because transfer is appropriate under both the first-filed rule and § 1404(a), I will grant Quaker’s
Motion and transfer this case to the Northern District of Illinois.
I.

Procedural History
A. The Six Earlier-Filed Complaints and the Consolidated Action

Between April 29, 2016 and May 4, 2016, plaintiffs filed five putative class actions,
alleging that the “100% Natural” labels on certain Quaker Oats products are false and misleading
because the oats contain detectable quantities of the herbicide glyphosate. See Compl., Daly v.
Quaker Oats Co., No. 16-2155, Doc. No. 1 (E.D.N.Y. Apr. 29, 2016); Compl., Cooper v. Quaker
Oats Co., No. 16-2364, Doc. No. 1 (N.D. Cal. Apr. 29, 2016); Compl., Gibson v. Quaker Oats

Co., No. 16-4853, Doc. No. 1 (N.D. Ill. May 2, 2016); Compl., Jaffee v. Quaker Oats Co., No.
16-21576, Doc. No. 1 (S.D. Fla. May 3, 2016); Compl., Kinn v. Quaker Oats Co., No.
16-2-10756-7 (Wash. Super. Ct. King Cty. May 4, 2016). On June 1, 2016, a sixth, materially
identical action was filed in the Northern District of Illinois. See Compl., Wheeler v. Quaker
Oats Co., No. 16-5776, Doc. No. 1 (N.D. Ill. June 1, 2016).
In July 2016, the plaintiffs in Jaffee, Daly, and Cooper agreed to transfer their cases to
the Northern District of Illinois for consolidation. See Jaffee, No. 16-21576, Doc. No. 12 (S.D.
Fla. July 8, 2016) (order granting stipulation to transfer case); Daly, No. 16-2155, Doc. No. 12
(E.D.N.Y. July 13, 2016) (same); Cooper, No. 16-2364, Doc. No. 16 (N.D. Cal. July 13, 2016)
(same). The cases were consolidated with Gibson, and on August 11, 2016, the plaintiffs filed
their consolidated amended complaint. See Consolidated Am. Compl., Gibson, No. 16-4853,
Doc. No. 28 (N.D. Ill. Aug. 11, 2016).
On the same day, Quaker removed Kinn to the Western District of Washington. See
Notice of Removal, Kinn, No. 16-1262, Doc. No. 1 (W.D. Wash. Aug. 11, 2016). On August 23,
2016, Quaker moved to transfer Kinn to the Northern District of Illinois. See Def.’s Mot. to
Transfer, Kinn, No. 16-1262, Doc. No. 10 (W.D. Wash. Aug. 23, 2016).
On September 26, 2016, the plaintiff in Wheeler—which was not consolidated with
Gibson—voluntarily dismissed her case. See Notice of Voluntary Dismissal, Wheeler, No.
16-5776, Doc. No. 19 (N.D. Ill. Sept. 26, 2016).
On November 3, 2016, the Washington District Court granted Quaker’s motion to
transfer. See Kinn, No. 16-1262, Doc. No. 22 (W.D. Wash. Nov. 3, 2016) (order granting
motion to transfer). All the earlier-filed cases are now pending before Judge Charles Norgle of
the Northern District of Illinois in one consolidated proceeding.

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B. The Instant Complaint
On August 22, 2016—months after the other cases were initiated, and nearly two weeks
after the Gibson plaintiffs filed their consolidated amended complaint—Named Plaintiffs Oren
Panitch, Gina Davis, and Margie Rizika filed the instant Complaint, which was assigned to Judge
Dalzell. (Compl., Doc. No. 1.) Acting on behalf of a putative nationwide class and putative
Pennsylvania, New Jersey, and Texas subclasses, Plaintiffs allege that Quaker has deceptively
marketed certain oatmeal products as “100% Natural,” when the products actually contain
glyphosate. (Id. ¶¶ 1-25.) Plaintiffs bring claims on behalf of the putative nationwide class for
breach of express warranty, breach of implied warranty, unjust enrichment, negligent
misrepresentation, and injunctive relief. (Id. ¶¶ 120-143, 200-214 (Counts I-III, VII-VIII).) On
behalf of the putative state subclasses, Plaintiffs allege violations of the states’ consumer
protection statutes.

(Id. ¶¶ 144-199 (Counts IV-VI).)

They seek damages, restitution,

disgorgement, injunctive relief, counsel fees, and costs. (Id. at 41 (Prayer for Relief).)
On October 11, 2016, Quaker moved to transfer this case to the Northern District of
Illinois under both the “first-filed rule” and 28 U.S.C. § 1404(a) or, in the alternative, to stay the
case pending the resolution of Gibson. (Doc. No. 5.) On October 25, 2016, Plaintiffs responded.
(Doc. No. 9.) The Parties have exhaustively briefed the matter. (Doc. Nos. 5, 9, 14, 19, 20.)
On January 4, 2017, the case was reassigned to me. (Doc. No. 17.)
II.

Legal Standards
A. The First-Filed Rule

As long explained by the Third Circuit:
The first-filed rule encourages sound judicial administration and promotes comity
among federal courts of equal rank. It gives courts ‘the power’ to enjoin the
subsequent prosecution of proceedings involving the same parties and the same
issues already before another district court.
3

E.E.O.C. v. Univ. of Pa., 850 F.2d 969, 971 (3d Cir. 1988); accord Crosley Corp. v. Hazeltine
Corp., 122 F.2d 925, 929 (3d Cir. 1941) (“In all cases of concurrent jurisdiction, the court which
first has possession of the subject must decide it.” (quoting Smith v. McIver, 22 U.S. (9 Wheat.)
532, 535 (1824))); see also 15 Charles Alan Wright et al., Fed. Prac. & Proc. § 3854 & n.12 (4th
ed. Jan. 2017) (“[W]hen two courts have concurrent jurisdiction over a dispute involving the
same parties and issues, as a general proposition, the forum in which the first-filed action is
lodged has priority.”) (collecting cases). The rule “permits courts to consolidate similar cases by
transferring later-filed cases for consolidation with the first-filed case.” Palagano v. NVIDIA
Corp., No. 15-1248, 2015 WL 5025469, at *1 (E.D. Pa. Aug. 19, 2015); see also Chavez v. Dole
Food Co., Inc., 836 F.3d 205, 217 & n.48 (3d Cir. 2016) (en banc) (citing 15 Wright et al., Fed.
Prac. & Proc. § 3854 & n.12, at 339-43 (4th ed. 2013)).
Although courts differ with respect to the degree of similarity required, a more “flexible
approach [is] proper because it is more consistent with the purposes of the first-filed rule.”
Palagano, 2015 WL 5025469, at *2; see also Chavez, 836 F.3d at 216 (“[T]he first-filed rule is
‘grounded on equitable principles’ and requires district court judges to ‘fashion[] a flexible
response to the issue of concurrent jurisdiction.’” (second alteration in original) (footnotes
omitted) (quoting E.E.O.C., 850 F.2d at 977)). Accordingly, in adopting this “more flexible
approach,” courts in this Circuit have repeatedly held that “the rule applies to cases that are
substantially similar.” Palagano, 2015 WL 5025469, at *2 (collecting cases). With this greater
flexibility, “[t]he applicability of the first-filed rule is not limited to mirror image cases where the
parties and the issues perfectly align. Rather, the principles underlying the rule support its
application where the subject matter of the later filed case substantially overlaps with that of the
earlier one.”

Villari Brandes & Kline, P.C. v. Plainfield Specialty Holdings II, Inc., No.
4

09-2552, 2009 WL 1845236, at *6 (E.D. Pa. June 26, 2009). The “substantive touchstone of the
first-to-file inquiry is subject matter.” Id. (quoting Shire U.S., Inc. v. Johnson Matthey, Inc., 543
F. Supp. 2d 404, 409 (E.D. Pa. 2008)).
“[R]are or extraordinary circumstances, inequitable conduct, bad faith, or forum
shopping” are proper bases upon which a court may retain jurisdiction of a later-filed action.
E.E.O.C., 850 F.2d at 976.
B. Transfer
For the convenience of parties and witnesses, in the interest of justice, a district
court may transfer any civil action to any other district or division where it might
have been brought or to any district or division to which all parties have
consented.
28 U.S.C. § 1404(a).
Congress enacted § 1404(a) “to prevent the waste ‘of time, energy, and money’ and ‘to
protect litigants, witnesses and the public against unnecessary inconvenience and expense.’”
Van Dusen v. Barrack, 376 U.S. 612, 616 (1964) (quoting Cont’l Grain Co. v. Barge FBL-585,
364 U.S. 19, 26-27 (1960)). “A motion to transfer under § 1404(a) thus calls on the district court
to weigh in the balance a number of case-specific factors.” Stewart Org., Inc. v. Ricoh Corp.,
487 U.S. 22, 29 (1988). “[C]ourts through the decades have recognized that each case must turn
on its particular facts, and the trial court must consider and balance all the relevant factors to
determine whether the litigation would proceed more conveniently and whether the interests of
justice would be better served by transfer to a different forum.” 15 Wright et al., Fed. Prac. &
Proc. § 3847 (footnote omitted) (citing cases). Although “there is no definitive formula or list
of . . . factors to consider, courts have considered many variants of the private and public
interests protected by the language of § 1404(a).” Jumara v. State Farm Ins. Co., 55 F.3d 873,
879 (3d Cir. 1995) (citation omitted).
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The Jumara Court set out private and public interests that all the Circuits have reiterated:
The private interests have included: plaintiff's forum preference as manifested in
the original choice; the defendant’s preference; whether the claim arose
elsewhere; the convenience of the parties as indicated by their relative physical
and financial condition; the convenience of the witnesses—but only to the extent
that the witnesses may actually be unavailable for trial in one of the fora; and the
location of books and records (similarly limited to the extent that the files could
not be produced in the alternative forum).
The public interests have included: the enforceability of the judgment; practical
considerations that could make the trial easy, expeditious, or inexpensive; the
relative administrative difficulty in the two fora resulting from court congestion;
the local interest in deciding local controversies at home; the public policies of the
fora; and the familiarity of the trial judge with the applicable state law in diversity
cases.
Id. at 879-880 (citations omitted); accord Royal Bed & Spring Co., Inc. v. Famossul Industria e
Comercio de Moveis Ltda., 906 F.2d 45, 52 (1st Cir. 1990); N.Y. Marine & Gen. Ins. Co. v.
Lafarge N. Am., Inc., 599 F.3d 102, 112 (2d Cir. 2010); Landers v. Dawson Constr. Plant, Ltd.,
201 F.3d 436 (4th Cir. 1999) (unpublished table decision); In re Volkswagen of America, Inc.,
545 F.3d 304, 315 (5th Cir. 2008) (en banc); Cherokee Exp. Co. v. Chrysler Int’l Corp., 142 F.3d
432

(6th

Cir. 1998) (unpublished

table decision);

Research

Automation,

Inc.

v.

Schrader-Bridgeport Int’l, Inc., 626 F.3d 973, 977-78 (7th Cir. 2010); Terra Int’l, Inc. v. Miss.
Chem. Corp., 119 F.3d 688, 691 (8th Cir. 1997) (citing Jumara); Jones v. GNC Franchising, Inc.,
211 F.3d 495, 498 (9th Cir. 2000); Emp’rs Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153,
1167-70 (10th Cir. 2010); Manuel v. Convergys Corp., 430 F.3d 1132, 1135 n.1 (11th Cir.
2005); see also 15 Wright et al., Fed. Prac. & Proc. § 3847 & n.7 (courts employ a “wide variety
of verbal formulations” of the 1404(a) factors, but there is a “general commonality of analysis”)
(collecting cases).

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III.

Discussion
A. The First-Filed Rule

Plaintiffs’ Complaint is substantially identical to the consolidated amended complaint in
Gibson, with many paragraphs copied verbatim. (See Def.’s Mem. in Supp. of Mot. to Transfer
at 6, Doc. No. 5 (identifying several paragraphs copied word-for-word from Gibson complaint).)
Indeed, the factual allegations underlying the claims here are the same as in Gibson. In both
cases, the named plaintiffs allege that the same defendant (Quaker Oats) made the same claims
(e.g., “100% Natural,” “100% Natural Whole Grain,” “heart healthy,” etc.) respecting the same
three products (Quaker Oats Old-Fashioned, Quaker Oats Quick 1-Minute, and Quaker Steel Cut
Oats) across the same geographic region (nationwide), and that these claims misled the public for
the same reason (products “are not 100% natural, but instead contain the chemical glyphosate”).
(Compare, e.g., Compl. ¶¶ 1, 3, 6, 105), with Consolidated Am. Compl. ¶¶ 1, 4, 5, 126, Gibson.
“[I]n a class action, the classes, and not the class representatives, are compared.”
Catanese v. Unilever, 774 F. Supp. 2d 684, 688 (D.N.J. Mar. 28, 2011) (quoting Ross v. U.S.
Bank Nat’l Ass’n, 542 F. Supp. 2d 1014, 1020 (N.D. Cal. 2008)); accord Wilkie v. Gentiva
Health Svcs., Inc., No. 10-1451, 2010 WL 3703060, at *3 (E.D. Cal. Sept. 16, 2010)
(“Substantial similarity of the parties is determined by comparing the proposed classes as they
currently stand.”).

The named plaintiffs here and in Gibson seek to represent identical

nationwide classes of all persons “who have purchased the Products, for personal use, and not for
resale, within any applicable limitations period until Notice is provided to the class.” (Compl.
¶ 105); Consolidated Am. Compl. ¶ 126, Gibson. “Where each set of named plaintiffs intends to
represent the other set, the underlying principles of the first-filed rule . . . permit this Court to
defer to the court of first jurisdiction.” Abushalieh v. Am. Eagle Exp., 716 F. Supp. 2d 361, 366

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(D.N.J. 2010). Because the cases are brought on behalf of the same putative nationwide class
and “the exact same representations are at the heart of each lawsuit,” the cases’ “substantial
similarity is sufficient to trigger the first-filed rule.” Palagano, 2015 WL 5025469, at *4.
Plaintiffs here argue that transfer is inappropriate because they seek to represent state
subclasses different from those in Gibson, and to bring an additional nationwide class claim for
breach of the implied warranty of merchantability. (See Pls.’ Mem. in Opp. at 8-10, Doc. No. 9.)
Yet, Plaintiffs acknowledge that the two proceedings considerably overlap, with nationwide class
claims for “breach of express warranty, negligent misrepresentation, unjust enrichment, and
beach [sic] of state consumer statutes” in both actions. (Id. at 9.) The additional claims in this
action do not render the first-filed rule inapplicable. See Catanese, 774 F. Supp. 2d at 688
(“[D]ifferences in the causes of action . . . are insufficiently material to prevent application of the
first-filed rule.

The factual allegations underlying these claims are exactly the

same. . . . [O]verlapping subject matter is the key; exact identity of claims is not required.”).
Were the rule otherwise, it could easily be circumvented: plaintiffs in materially identical,
nationwide class actions would evade transfer simply by adding claims. See id. (“Indeed, in a
class action situation such as this, it would be impossible for the claims to overlap exactly where
the actions are brought in different states, and the purpose of the rule would be defeated. There
would be nothing to stop plaintiffs in all 50 states from filing separate nationwide class actions
based upon their own state’s law.”); see also Worthington v. Bayer Healthcare, LLC, No.
11-3017, 2012 WL 1079716, at *6 (D.N.J. Mar. 30, 2012) (“Finding an insubstantial overlap
because of the fact that the claims are asserted under different state laws would defeat the
judicial efficiency rationale undergirding the first-filed rule.”).
Plaintiffs also argue that they base the instant case on a theory of harm different from that

8

in Gibson:
In this case, Plaintiffs are pursuing claims under a theory that glyphosate removed
the heart healthy, cholesterol lowering benefits of the oat promoted by Defendant
and Defendant knew or should have known of the impact glyphosate had on the
representations it made. The plaintiffs in the Consolidated Proceeding instead
focus solely on the ingestion glyphosate [sic] rather than the impact glyphosate
has on the merchantable and warranted qualities of the oat.
(Pls.’ Mem. in Opp. at 10, Doc. No. 9.) This is a distinction without a difference. In both cases,
the named plaintiffs base their claims on “a theory that glyphosate removed the heart healthy,
cholesterol lowering benefits of the oat.” Indeed, Plaintiffs here copied this allegation nearly
verbatim from the Gibson consolidated amended complaint. (Compare Compl. ¶ 74 (“When
added to oats, glyphosate reduces the level of beta glucan, a soluble fiber linked to
cardiovascular health and improvements in cholesterol levels.”)), with Consolidated Am. Compl.
¶ 74, Gibson (“[T]he presence of glyphosate in Quaker Oats reduces the level of beta glucan, a
soluble fiber linked to improvements in cholesterol levels and cardiovascular health.”).
Although Plaintiffs argue that Quaker is forum shopping, the record suggests the
opposite. (See Pls.’ Mem. in Opp. at 2, 10-11, Doc. No. 9.) “Normally, a plaintiff must establish
that the defendant in the second action . . . filed the first action . . . to avoid the second forum.”
Catanese, 774 F. Supp. 2d at 690-91 (citing E.E.O.C., 850 F.2d at 978, and FMC Corp. v.
AMVAC Chem. Co., 379 F. Supp. 2d 733 (E.D. Pa. 2005)). Quaker filed none of the prior
actions. Plaintiffs filed their Complaint here months after the other six actions were initiated and
after four of those actions had been consolidated in Illinois. In these circumstances, Plaintiffs
appear to be forum shopping; Quaker’s desire to litigate in one forum all the identical class
claims filed against it is entirely understandable. See, e.g., Palagano, 2015 WL 5025469, at *2
(finding “it would be extremely difficult to ignore the efficiency gains that might result from
consolidation” of substantially similar putative class actions); Worthington, 2012 WL 1079716,
9

at *7 (allowing similar putative class actions to proceed in different fora “would cause
substantial duplication of effort, and worse, potentially inconsistent rulings” (quoting Catanese,
774 F. Supp. 2d at 688)); Catanese, 774 F. Supp. 2d at 690 (allowing class actions to proceed in
two fora would force defendant “to defend identical actions on opposite ends of the country”);
see also Castillo v. Taco Bell of America, LLC, 960 F. Supp. 2d 401, 405 (E.D.N.Y. 2013) (“[I]t
would be patently unfair to require Defendants to litigate the class issues here at the same time as
those matters are being litigated in the first-filed action.”).
In sum, sound judicial administration and comity weigh strongly in favor of transfer
under the first-filed rule. See E.E.O.C., 850 F.2d at 971.
B. Transfer
In the alternative, I conclude that the Jumara factors also weigh strongly in favor of
transfer.
The Parties’ Forum Preferences
Plaintiffs argue that their choice of forum “is perhaps the most important consideration in
light of the fact that [Quaker] seeks to force Plaintiffs to try their cases hundreds or thousands of
miles from their homes, and seeks to force Plaintiffs to give up their rights to trial in a local
forum.” (Pls.’ Mem. in Opp. at 13, Doc. No. 9.) I disagree.
Although ordinarily entitled to great weight, a “plaintiff's choice of forum becomes
‘substantially less important’ when he sues representatively on behalf of a class.” MP Vista, Inc.
v. Motiva Enters. LLC, No. 07-99, 2008 WL 5411104, at *2 (D. Del. Dec. 29, 2008) (quoting
Yang v. Odom, 409 F. Supp. 2d 599, 606 (D.N.J. 2006)); accord Freeman v. Hoffmann-La
Roche Inc., No. 06-13497, 2007 WL 895282, at *3 (S.D.N.Y. Mar. 21, 2007) (“[A] plaintiff's
choice of forum ‘is afforded little weight’ in a purported class action, as here, where ‘numerous

10

potential plaintiffs [are] each possibly able to make a showing that a particular forum is best
suited.’”); see also 15 Wright et al., Fed. Prac. & Proc. § 3848 (“[I]n representative actions,
where the plaintiff seeks to vindicate rights of others[,] the plaintiff’s venue preference is
weakened. Thus, courts have held that the factor is entitled to little weight in shareholder
derivative litigation and in class actions.” (footnotes omitted)).
Moreover, “courts in our district have held that where there is a strong likelihood of
consolidation with a related action, a transfer of venue is warranted.” Palagano, 2015 WL
5025469, at *3 (quoting Villari Brandes & Kline, P.C., 2009 WL 1845236, at *5); accord
Catanese, 774 F. Supp. 2d at 690 (“This factor alone favors transfer.”). “In fact, the presence of
a related action in the transferee forum is such a powerful reason to grant a transfer that courts do
so even where other Jumara factors, such as the convenience of the parties and witnesses, would
suggest the opposite.” Villari Brandes & Kline, P.C., 2009 WL 1845236, at *5. Accordingly,
“the existence of a related action in another district is a sound reason for favoring transfer when
venue is proper there, even though the transfer conflicts with the plaintiff’s choice of forum.” Id.
Plaintiffs concede that they “originally could have bright [sic] this action in the Northern
District of Illinois, because the Defendant resides there for venue purposes.” (Pls.’ Mem. in
Opp. at 13, Doc. No. 9.) “Thus, Defendant’s preference under these circumstances is not
overshadowed by Plaintiff’s choice of forum, but rather overcomes that ordinarily ‘paramount
concern.’” Palagano, 2015 WL 5025469, at *5 (citation omitted). The pendency of Gibson—
which comprises all the pending earlier-filed cases—alone warrants transfer.
Whether the Claims Arose Elsewhere
This factor also favors transfer. “Where plaintiff’s cause of action arises from strategic
policy decisions of a defendant corporation, the defendant’s headquarters can be considered the

11

place where events giving rise to the claim occurred.” Id. (quoting Ayling v. Travelers Prop.
Cas. Corp., No. 99-3243, 1999 WL 994403, at *5 (E.D. Pa. Oct. 28, 1999)). “More specifically,
in the context of claims based on misrepresentations or omissions, ‘misrepresentations and
omissions are deemed to occur in the district where they were transmitted or withheld, not where
they are received.’” Id. (quoting Kerik v. Tacopina, No. 14-488, 2014 WL 1340038, at *5
(D.N.J. Apr. 3, 2014)). Accordingly, Plaintiffs’ claims arose in the Northern District of Illinois,
where Quaker is headquartered. (See Compl. ¶ 41 (“At all times mentioned herein, Quaker Oats
Company was a Chicago, Illinois-based division of PepsiCo, Inc.”)).
The Parties’ Convenience
Once again, this factor weighs in favor of transfer.

Although Quaker’s financial

resources exceed Plaintiffs’, the burden imposed on the company by litigating identical
nationwide class claims in two districts would be considerable. See, e.g., Palagano, 2015 WL
5025469, at *6 (“To the extent that fact witnesses are employees of [the defendant], while they
may be available for trial in any forum, the extreme inconvenience and expense to [the
defendant] of bringing them to trial in Philadelphia relates to the relative convenience of the
parties to the suit.” (citation omitted)).

Moreover, requiring Quaker to defend materially

identical suits in two districts would inevitably lead to duplication of voluminous discovery and
documentary evidence, the burden of which would fall almost entirely on the company. See
Catanese, 774 F. Supp. 2d at 690 (“[D]efend[ing] identical actions on opposite ends of the
country . . . would inevitably include duplication of a large amount of discovery and
documentary evidence.”); see also Worthington, 2012 WL 1079716, at *7. Litigating in the
Northern District of Illinois would not impose any greater burden on Plaintiffs—whose
involvement is limited to having purchased oatmeal—than litigating here. See Catanese, 774 F.

12

Supp. 2d at 690 (“In comparison, there is very little burden on the plaintiffs. Their involvement
is limited to purchasing ice cream. They will have little, if any, documentary evidence to
contribute.”). Further, any burden on Plaintiffs is minimized by Quaker’s offer to depose them
in their home states. (See Mot. to Transfer at 11, Doc. No. 5); cf. 15 Wright et al., Fed. Prac. &
Proc. § 3849 (“The economic burdens of transfer on the nonmoving parties sometimes have
been avoided, or at least reduced, by . . . the defendant’s willingness to bear specified expenses
of the plaintiff.” (footnotes omitted)).
The Convenience of the Witnesses
This factor is neutral. Because “party witnesses are presumed to be willing to testify in
either forum despite any inconvenience,” “convenience of non-party witnesses is the main
focus.” Palagano, 2015 WL 5025469, at *6 (quoting Hillard v. Guidant Corp., 76 F. Supp. 2d
566, 570 (M.D. Pa. 1999)); see also Jumara, 55 F.3d at 879 (limiting consideration of the
convenience of witnesses “to the extent that the witnesses may actually be unavailable for trial in
one of the fora”); 15 Wright et al., Fed. Prac. & Proc. § 3851 (“[T]he fact that important
nonparty witnesses may be within the subpoena power of one court but not the other is a
significant issue.”). Although Plaintiffs argue that “the witnesses with respect to Plaintiffs’
specific experiences reside in or near the Eastern District of Pennsylvania,” neither party has
identified any non-party witnesses who would be unavailable in either forum. (Pls.’ Mem. in
Opp. at 11, Doc. No. 9.)
The Location of Books and Records
This factor is also neutral. “The Third Circuit has stated that this factor should be limited
to the extent that the files could not be produced in the alternative forum.” Lomanno v. Black,
285 F. Supp. 2d 637, 646 (E.D. Pa. 2003) (citing Jumara, 55 F.3d at 879). “[T]he technological

13

advances of recent years have significantly reduced the weight of this factor in the balance of
convenience analysis.” Id. (citation omitted). “In earlier times, reviewing documents required
physical presence in the situs where they were kept or stored. Transporting hard copies to a
distant court was often cumbersome and expensive. Technology has changed things.” 15
Wright et al., Fed. Prac. & Proc. § 3853. “Today, with digitization, many documents exist in
electronic format, which can be sent over the Internet.” Id. No party has asserted that relevant
records could not be produced in either forum.
Public Interest
The public is obviously well-served by avoiding duplicative litigation. “To permit a
situation in which two cases involving precisely the same issues are simultaneously pending in
different District Courts leads to the wastefulness of time, energy and money that § 1404(a) was
designed to prevent.” Cont’l Grain Co. v. Barge FBL-585, 364 U.S. 19, 26 (1960). Plaintiffs
nonetheless argue that the public interest does not favor transfer because Gibson is in its early
stages, and “no discovery has taken place in any action.” (Pls.’ Mem. in Opp. at 14-15, Doc. No.
9.) Plaintiffs thus seek to stand the public interest factor on its head. That Gibson has not yet
significantly progressed favors transfer, which will preclude the needless duplication of judicial,
lawyer, and party resources. See, e.g., Elan Suisse Ltd. v. Christ, No. 06-3901, 2006 WL
3838237, at *3 (E.D. Pa. Dec. 29, 2006) (“[T]he pendency of a related case in its early phases in
the transferee forum is a powerful reason to grant a change of venue.”); see also A.J. Indus., Inc.
v. U.S. Dist. Ct., 503 F.2d 384, 389 (9th Cir. 1974) (“The feasibility of consolidation is a
significant factor in a transfer decision, although even the pendency of an action in another
district is important because of the positive effects it might have in possible consolidation of
discovery and convenience to witnesses and parties.” (citation omitted)); cf., e.g., Zelenkofske

14

Axelrod Consulting, L.L.C. v. Stevenson, No. 99-3508, 1999 WL 592399, at *2 (E.D. Pa. Aug.
5, 1999) (transfer may be inappropriate “where the second-filed suit had developed further at the
time the [transfer] motion was made”).
Plaintiffs also argue that because I am more familiar with the governing law, transfer to
the Northern District of Illinois is less desirable. Again, I disagree. “[A]lthough the familiarity
of the trial judge with applicable state law . . . is a consideration that could tip the balance in an
otherwise close call, this factor is of little weight.” Palagano, 2015 WL 5025469, at *7 (internal
quotation marks and citations omitted); McCraw v. GlaxoSmithKline, No. 12-2119, 2014 WL
211343, at *7 (E.D. Pa. Jan. 17, 2014) (governing law will not weigh in transfer analysis where
case does not implicate “the law of a foreign nation” or something akin to “the difference
between Pennsylvania’s common law system and Louisiana’s civil code system”); accord
Brozoski v. Pfizer Inc., 00-4215, 2001 WL 618981, at *3 (S.D.N.Y. June 6, 2001) (“[T]he fact
that the law of another jurisdiction governs the outcome of the case is a factor accorded little
weight on a motion to transfer. This is especially true where—as here—there are no complex
questions of foreign law involved.” (citation omitted)); see also 15 Wright et al., Fed. Prac. &
Proc. § 3854 (state law considerations are “given significantly less weight, however, when the
case involves basic or well-established, as opposed to complex or unsettled, issues of state law”).
Moreover, my purported familiarity with governing law is no greater than that of Judge
Norgle. In addition to their Pennsylvania statutory claim, Plaintiffs bring claims under New
Jersey and Texas law, and the applicable law for the nationwide class claims has yet to be
determined. Judge Norgle and I would thus have to apply the laws of other jurisdictions—a
common enough occurrence. See, e.g., Palagano, 2015 WL 5025469, at *7 (“Federal district
courts are regularly called upon to interpret the laws of jurisdictions outside of the states in

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which they sit.” (citation omitted)). Regardless of which law applies, “the district court in either
state is more than capable of applying that law to the case.” McCraw, 2014 WL 211343, at *7.
Finally, Pennsylvania has no significant interest in having the matter decided here.
“[T]he fact that [Quaker oatmeal] was sold nationwide and that numerous other actions alleging
substantially similar misconduct by [Quaker] were filed in other districts and are now pending in
[Illinois] suggests that (1) this is not a ‘local controversy’ in Pennsylvania that should clearly be
decided in Pennsylvania, and (2) [Illinois] may have the strongest interest in deciding what most
closely resembles a ‘local controversy’ to [Illinois].” Palagano, 2015 WL 5025469, at *7.
*

*

*

In sum, Quaker has plainly shown that the private and public Jumara factors weigh in
favor of transfer under § 1404(a).
IV.

Conclusion

For the foregoing reasons, I will grant Quaker’s Motion and transfer this matter to the
Northern District of Illinois under the first-filed rule; in the alternative, I will order transfer under
28 U.S.C. § 1404(a).
An appropriate Order follows.
/s/ Paul S. Diamond
________________________
Paul S. Diamond, J.

April 5, 2017

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