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Michael Kurtz, Individually and On v. Intelius

September 8, 2011

MICHAEL KURTZ, INDIVIDUALLY AND ON BEHALF OF ALL OTHER SIMILARLY SITUATED CALIFORNIA RESIDENTS, PLAINTIFF,
v.
INTELIUS, INC., A DELAWARE CORPORATION; INTELIUS SALES COMPANY LLC, A/K/A INTELIUS SALES, LLC, A NEVADA LIMITED LIABILITY COMPANY; AND ADAPTIVE MARKETING LLC, A DELAWARE LIMITED LIABILITY COMPANY, DEFENDANTS.



ORDER GRANTING DEFENDANTS' MOTION TO TRANSFER

This matter comes before the Court on Defendants Intelius, Inc. and Intelius Sales Company, LLC's (collectively "Defendants") Motion to Transfer this action to the Central District of California (Doc. #13), which Plaintiff Michael Kurtz ("Plaintiff") opposes (Doc. #34).*fn1

For the reasons set forth below(and not because this Court found either Yogi Berra or Sun Tsu to be persuasive authority), Defendants' Motion to Transfer is granted.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case was initiated as a class action suit. The named Plaintiffs, and proposed putative class of California consumers, 5 seek relief based on allegedly deceptive advertisements that 6 appeared on Defendants' website. See Defendants' Motion to 7 Transfer, Doc. #13-1 ("Defs MT") at pg. 1.

Prior to the filing of this case, Plaintiffs' attorneys filed 9 an identical action in the Central District of California through different named plaintiffs, seeking relief under various California laws. Compare Doc. #1 with Baxter v. Intelius, et al., Case No. 09-1031 AG (second amended complaint filed June 11, 2010). This previous case was summarily dismissed with prejudice. Importantly, in lieu of paying sanctions, the Baxter plaintiffs, represented by the same attorneys as the Plaintiffs in this case, stipulated to not file another case against Intelius involving the same facts. See Defs MT at pg. 1-2.

II. OPINION

A. Legal Standard

1. Motion to Transfer

28 U.S.C. section 1404(a) authorizes the transfer of any case to a more convenient forum if transfer is in the interest of justice. Specifically, "[f]or the convenience of the 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. (28 U.S.C. § 1404(a)). Indeed, district courts have discretion to adjudicate motions for transfer according to "an individualized, case-by-case consideration of 2 convenience and fairness," Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988), and the burden is on the moving party to show 4 that transfer is appropriate. See Commodity Futures Trading Com. v. 5 Savage, 611 F.2d 270, 279 (9th Cir. 1979).

In determining whether transfer is warranted, the Ninth Circuit requires district courts to weigh multiple factors, 8 including: (1) the location where the relevant agreements were 9 negotiated and executed, (2) the state most familiar with the governing law, (3) the plaintiff's choice of forum, (4) the parties' contacts with the forum, (5) the contacts relating to the plaintiff's cause 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. Jones v. GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 2000).

2. Request for Judicial Notice

A court may consider material beyond the pleadings if the material is attached to, or relied on by, the complaint, or the court takes judicial notice of matters of public record, provided the facts are not subject to reasonable dispute. E.g., Sherman v. Stryker Corp., 2009 WL 2241664 at *2 (C.D. Cal. Mar. 30, 2009) (citing Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) and FED. R. EVID. 201).

Defendants have requested this Court take judicial notice of public records. Defendants' Request for Judicial Notice, Doc. #14. These documents are relevant to the pending motion to transfer, and are not subject to reasonable dispute. See FED. R. EVID. 201.

Accordingly, this Court grants Defendants' request in its entirety 3 and considers the proffered ...


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