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Wallerstein v. Dole Fresh Vegetables, Inc.

United States District Court, N.D. California

September 13, 2013

TRACI WALLERSTEIN, individually and on behalf of all others similarly situated, Plaintiff,
v.
DOLE FRESH VEGETABLES, INC., Defendant

Page 1290

For Traci Wallerstein, on behalf of herself and all others similarly situated, Plaintiff: Douglas Greg Blankinship, LEAD ATTORNEY, Meiselman Denlea Packman Carton Eberz PC, White Plains, NY; Jon A Tostrud, LEAD ATTORNEY, Tostrud Law Group, P.C., Los Angeles, CA; Todd S. Garber, PRO HAC VICE, Meiselman, Packman, Nealon, Scialabba and Baker P.C., White Plains, NY.

For Dole Fresh Vegetables, Inc., Defendant: Charles Andrew Danaher, McKenna Long and Aldridge LLP, San Diego, CA; Theona Zhordania, McKenna Long, Los Angeles, CA.

OPINION

Page 1291

Order Granting Defendant Dole Fresh Vegetables, Inc.'S Motion to Transfer Action to the Central District of California

YVONNE GONZALEZ ROGERS, UNITED STATES DISTRICT COURT JUDGE.

Plaintiff Traci Wallerstein (" Plaintiff" or " Wallerstein" ) filed this putative class action against Defendant Dole Fresh Vegetables, Inc. (" Defendant" or " Dole" ) on March 21, 2013. (Compl. [Dkt. No. 1].) Plaintiff seeks monetary damages and injunctive relief on the grounds that the " All Natural" label on Dole Salad Kits is " false, deceptive, and unfair to consumers because the Salad Kits contain synthetic (man made) ingredients" and consumers are misled into purchasing those products. (First Amended Class Action Complaint [" Wallerstein FAC" ] ¶ ¶ 1-3 [Dkt. No. 8].) Dole is also a defendant in another putative class action filed on February 26, 2013 in the Northern District of California, Park v. Dole Fresh Vegetables, Inc., Case No. 13-cv-00872-LHK (" Park Action" ). That case was subsequently transferred to the Central District of California. ( See Park Action at Dkt. No. 45.)

Dole has filed a Motion to Transfer Plaintiff Traci Wallerstein's Action to the Central District of California Pursuant to the First-to-File Rule and/or 28 U.S.C. § 1404(a) or, in the Alternative, to Dismiss or Stay the Action. (" Motion" [Dkt. No. 29].) [1] Wallerstein filed an Opposition to Defendant's Motion to Transfer Pursuant to 28 U.S.C § 1404(a) or, in the Alternative, to Dismiss or Stay the Action. (" Opposition" [Dkt. No. 34].) Dole filed a reply in turn. (Dkt. No. 37.)

Having carefully considered the papers submitted and the pleadings in this action, and for the reasons set forth below, the Court hereby Grants Dole's Motion to Transfer based on the first-to-file rule. [2]

I. Factual and Procedural Background

A. The Instant Action

On March 21, 2013, Wallerstein filed this putative class action in the Northern District of California. (Dkt. No. 1.) On May 10, 2013, Plaintiff filed an amended complaint " on behalf of herself and all those who purchased an All Natural Dole Salad Kit (the 'Salad Kits') at any time from January 1, 2009 through the present." ( Wallerstein FAC ¶ 1.) Dole Fresh Vegetables, Inc. is a subsidiary of Dole Food Company, Inc., one of the world's largest food suppliers, who produces the Dole Salad Kits as well as " over 200 brands of food that are sold throughout the United States and the world." ( Id. ¶ 9.)

Wallerstein alleges that the following varieties of Salad Kits contain synthetic ingredients: (1) Asian Island Crunch Salad Kit; (2) Caesar Salad Kit; (3) Endless Summer Salad Kit; (4) Garlic Caesar Salad Kit; (5) Light Caesar Salad Kit; (6) Perfect Harvest Salad Kit; (7) Southwest Salad Kit; (8) Spinach Cherry Almond Bleu Salad Kit; (9) Ultimate Caesar Salad Kit; and (10) Value Size Caesar Salad Kit.

Page 1292

( Id. ¶ 10.) Wallerstein further alleges that Dole Salad Kits cannot be natural because they contain xanthan gum and ascorbic acid. ( Id. ¶ ¶ 19-20.)

Wallerstein asserts six claims in the FAC: (1) violation of the Consumer Legal Remedies Act, Cal. Civ. Code section 1750, et seq. (" CLRA" ); (2) violation of the unlawful, unfair, and fraudulent prongs of Cal. Bus. & Prof. Code section 17200, et seq. (" UCL" ); (3) violation of California's False Advertising Law, Cal. Bus. & Prof. Code section 17500, et seq. (" FAL" ); (4) breach of implied-in-law contract/quasi-contract under California Law; (5) deceptive acts and practices in violation of N.Y. Gen. Bus. Law section 349, et. seq. ; and (6) unjust enrichment under New York law.

B. The Park Action

On February 26, 2013, plaintiff Andrew Park initiated the Park Action in the Northern District of California. On April 25, 2013, Park filed an amended complaint " on behalf of a nationwide class of all consumers who purchased Dole Salad Kit products that were deceptively labeled as 'All Natural' . . . when in fact those products contain unnaturally processed and synthetic ingredients." (First Amended Class Action Complaint in Park Action at Dkt. No. 22 [" Park FAC" ] ¶ 1.) [3]

Park alleges that the same ten varieties of Dole Salad Kits are deceptively labeled. ( Park FAC ¶ 23.) Further, Park alleges that the Salad Kits are unnatural because they contain synthetic ingredients, namely ascorbic acid and/or xanthan gum. ( Id. ¶ ¶ 26-27.) Park alleges two claims for ...


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