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Lestarea Williams and Carlos Porro, On Behalf of Themselves and All Others Similarly Situated v. Winco Foods

January 9, 2013



This case is before the court on defendant WinCo's motion to transfer venue. (ECF 7.) The motion was decided without a hearing. For the reasons outlined below, defendant's motion is GRANTED.


A. This Action

Named plaintiffs are two former night shift assistant managers who worked for defendant WinCo, a company that operates a chain of supermarkets throughout California. (Pls.' Am. Compl. ¶¶ 1-6, Ex A., ECF 2 ("FAC.").) Plaintiffs seek to bring a class action alleging defendant intentionally misclassified night shift assistant managers as exempt from overtime under California law. (Id. ¶¶ 5-6.) As a result of this misclassification, plaintiffs allege they are owed compensation for unpaid overtime, missed meal and rest periods, and inaccurate wage statements. (Id. ¶ 3.) Plaintiffs bring three causes of action: 1) unlawful failure to pay overtime wages; 2) unfair competition; and 3) a claim under the California Labor Code Private Attorneys General Act of 2004. (Id. ¶¶ 19-30.) Plaintiffs seek to represent a class that consists of "persons employed in California by WinCo as assistant store managers who worked the night or graveyard shift for the four year period preceding the filing of the complaint in Gales v. WinCo Foods [ . . . ] to the present . . . ."*fn1 (Id. ¶ 13.) Plaintiffs anticipate this class will consist of at least fifty but fewer than one-hundred persons. (Id. ¶ 14.)

Plaintiff Williams resides in this District. (Williams Decl. ¶ 3.) Plaintiff Porro resides in Victorville, in the Central District of California. (Porro Decl. ¶ 3.) Plaintiff Williams worked at defendant's store in this District. (Williams Decl. ¶ 2.) Plaintiff Porro worked at defendant's store in the Central District. (Porro Decl. ¶ 2.) Defendant is a limited liability company incorporated in Delaware, with its principal place of business in Idaho. (Stinger Decl. ¶ 2.)

Plaintiffs initially filed suit on August 2, 2012 in California Superior Court, County of Sacramento. (Def.'s Notice of Removal ¶ 2, ECF 2.) Plaintiff filed an amended complaint on September 20, 2012, which was served on defendant on October 1, 2012. (Id.) Defendant removed the action to this court on October 25, 2012. (Id. ¶ 1.) On November 9, 2012, defendant filed the current motion to transfer venue, seeking to move the case to the Northern District of California because a judge there had recently heard an essentially identical class action brought by the same class counsel on behalf of essentially identical plaintiffs. (Def.'s Mot. Transfer at 1, ECF 7-1.) Plaintiff timely filed an opposition on November 30, strongly urging this court not to disrupt plaintiff's choice of forum in large part because the convenience of the parties and witnesses favors this District. (Pls.' Opp'n, ECF 8.) Defendant timely filed a reply on December 7. (Def.'s Reply, ECF 11.)

B. Northern District of California Action: Gales

In September 2009, the same attorneys that represent plaintiffs in this case filed Gales in state court, in the County of San Francisco, on behalf of a single named plaintiff from Washington state. (State Court Compl. in Gales, Pls.' Req. Judicial Notice at 2, Ex. A, ECF 7-4.)*fn2 Defendant removed that case to the Northern District. Gales v. WinCo Foods, No. C 09--05813 CRB, 2011 WL 3794887, at *1 (N.D. Cal. Aug. 26, 2011). Gales brought the same three claims as plaintiffs in this case (Second Am. Compl. in Gales, Ex. D, ECF 7-7), on behalf of three classes of assistant managers: those who worked, one, the day shift; two, the night shift from 2008 to the present; and third, the night shift from September 2005 to 2008, Gales, 2011 WL 3794887, at *1.*fn3 Over the nearly three years the Gales case was pending, the Gales court heard several discovery and evidentiary disputes and other motions. See Gales, Northern District of California, Case No. C 09--05813 CRB (docket). On August 26, 2011, the court issued an order denying class certification, because plaintiff's three proposed classes did not meet Federal Rules of Civil Procedure Rule 23(b)(3)'s predominance and superiority requirements. Gales, 2011 WL 3794887, at *4. The Gales class certification order demonstrates that the court delved rather deeply into the merits of that case, as it had to evaluate the nature of plaintiff's evidence for its three causes of action to determine whether the proposed classes satisfied Rule 23(b)(3). Gales, 2011 WL 3794887, at *3-4. After class certification was denied, Gales resolved his individual dispute with WinCo and dismissed the case. (McKelvey Decl., Ex. I.) Both of the named plaintiffs in this action gave declarations in the Gales litigation. (Id. Dec., ¶¶ 7-8, Exs. F, G and H.)


When the district court finds that venue is proper, it is still within its discretion, "[f]or the convenience of the parties and witnesses, [and] in the interest of justice," to transfer an "action to any other district or division where it might have been brought." 28 U.S.C. § 1404(a). "Section 1404(a) is intended to place discretion in the district court to adjudicate motions for transfer according to an 'individualized, case-by-case consideration of convenience and fairness.'" Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)). "In ruling on a motion to transfer pursuant to § 1404(a), the Court must evaluate three elements: (1) convenience of the parties; (2) convenience of the witnesses; and (3) interests of justice." Safarian v. Maserati N. Am., Inc., 559 F. Supp. 2d 1068, 1071 (C.D. Cal. 2008) (citations omitted). "Once the court determines that venue is proper, the movant must present strong grounds for transferring the action . . . ." Id. (citing Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986)). "[A] motion to transfer venue for convenience pursuant to 28 U.S.C. § 1404(a) does not concern the issue 'whether and where' an action may be properly litigated. It relates solely to the question where, among two or more proper forums, the matter should be litigated to best serve the interests of judicial economy and convenience to the parties." Injen Tech. Co. v. Advanced Engine Mgmt., 270 F. Supp. 2d 1189, 1193 (S.D. Cal. 2003) (citations omitted).

In determining whether transfer is proper, the court must "balance the preference accorded plaintiff's choice of forum with the burden of litigating in an inconvenient forum." Decker Coal, 805 F.2d at 843 (citations omitted). According to the Ninth Circuit, relevant factors determining whether transfer is appropriate include: (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 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), cert. denied, 531 U.S. 928 (2000) (citing Stewart Org. Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988)).

The court attaches a "strong presumption in favor of plaintiff's choice of forum." Piper Aircraft v. Reyno, 454 U.S. 235, 255 (1981). However, a plaintiff's choice of forum should receive less deference when suit is brought in a representative capacity, such as in the case of a class action suit. Wireless Consumers Alliance, Inc. v. T-Mobile USA, Inc., No. C 03-3711 MHP, 2003 WL 22387598, at *3 (N.D. Cal. Oct. 14, 2003) (citing Lou v. Belzberg, 834 F.2d 730, 739 (9th Cir. 1987)). "Even then, the burden, albeit a lighter one, remains on the moving party to demonstrate that the combined concerns of convenience and the interest of justice are sufficiently strong to tip the balance in favor of the transfer." Id. (citing Mayer v. Dev. Corp. of Am., 396 F. Supp. 917, 932 n.26 (D. Del .1975)).


There is no dispute that this action "might have been brought" in the Northern District of California. 28 U.S.C. ยง 1404(a). A nearly identical class action was recently brought against defendant in the Northern District, and that suit ...

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