United States District Court, C.D. California
ORDER DENYING DEFENDANTS' MOTION TO TRANSFER
VENUE [12]
Otis
D. Wright, II United States District Judge
I.
INTRODUCTION
On
September 28, 2015, Plaintiff Kimberly Colvig filed this
action in the Los Angeles County Superior Court against
Defendants Marianna Industries, Inc. ("Marianna")
and Atef Halaka (collectively, "Defendants").
(Complaint ("Compl."), ECF No. 1, Ex. A.) On
November 20, 2015, Defendants removed this action to this
Court. (Def.'s Not. of Removal ("NOR"), ECF No.
1.) Defendants now move to transfer the matter to the
District of Nebraska. (Def.'s Mot. to Transfer Venue
("Mot."), ECF No. 12.) For the reasons stated
herein, the Court DENIES this Motion to
Transfer Venue.[1]
II.
FACTUAL BACKGROUND
Colvig,
a California resident, alleges that after she refused to
sleep with a client, her employment with Marianna was
wrongfully terminated. (Declaration of Kimberly Colvig
("Colvig Decl."), ECF No. 13-1, ¶ 2.)
Marianna's headquarters and principal place of business
are located in Omaha, Nebraska. (Declaration of Atef Halaka
("Halaka Decl."), ECF No. 12-1, ¶¶ 2-3.)
Marianna is a supplier of professional beauty products for
brands, salons, and beauty schools. Halaka is the CEO of
Marianna, and a resident of Omaha, Nebraska. (Id.
¶ 4.)
This
Motion to Transfer Venue stems from a wrongful termination
and harassment action arising under the California Fair
Employment and Housing Act (FEHA). (Compl. ¶¶
42-108.) In her Complaint, Colvig alleges: (1) hostile work
environment; (2) sex discrimination; (3) retaliation; (4)
retaliation in violation of public policy; (5) wrongful
termination; and (6) negligent hiring/retention.
(Id.)
Colvig
and Halaka were friends and former co-workers. In March 2015,
while in California, Halaka asked Colvig if she would be
interested in leaving her current employment to work for
Marianna as a sales executive. (Id. ¶ 8.) On
June 15, 2015, Colvig began working for Marianna as the Vice
President of Contract Manufacturing Sales. (Colvig Decl., ECF
No. 13-1, Ex. 1.) It was agreed that Colvig would work
primarily from her home office in Windsor, California, and
would take sales trips when needed. (Colvig Decl. ¶ 7;
Halaka Decl. ¶ 9.)
Shortly
thereafter, on June 22, 2015, Colvig flew out to
Marianna's corporate headquarters in Omaha, Nebraska for
orientation. (Compl. ¶ 14.) While there, Colvig alleges
that she discovered Occupational Safety and Health
Administration (OSHA) violations in a Marianna storage
warehouse, and that she was treated with hostility by various
executives. (Id. ¶¶ 19, 21.) Halaka, on
the other hand, states that he received numerous complaints
from employees stating that Colvig was boasting about being
their boss and saying she would be the President of Marianna
in a few weeks. (Halaka Decl. ¶ 11.)
In July
2015, Colvig, Halaka, and other Marianna employees traveled
to Las Vegas, Nevada for a cosmetics industry convention
called CosmoProf. (Compl. ¶ 30; Mot. 3.) On the first
day of the event, Colvig and the Marianna team met with Al
Dignon, the Vice President of the Supply Chain at Kenra, LLC
("Kenra"), a client of Marianna. (Compl. ¶
33.) Halaka alleges that Colvig was highly unprofessional
during two separate sales meetings at CosmoProf, and, due to
that unprofessional conduct, Halaka was forced to have two
stern talks with Colvig. (Mot. 3.) Colvig, on the other hand,
alleges that on the second day of the event, Halaka
approached her and told her that if she did not have sex with
Dignon, Dignon would not increase the volume of the Kenra
account. (Compl. ¶ 34.) Colvig further alleges that
Halaka told her that her refusal would count against her and
that she would be fired. (Id.) On July 17, 2015,
upon returning home from CosmoProf, Colvig received a letter
from Patty Kousgaard, the Director of Human Resources at
Marianna, informing her that she had been fired. (Compl., Ex.
3.)
On
September 28, 2015, Plaintiff filed this action in the Los
Angeles County Superior Court. On November 20, 2015,
Defendants removed this action to this Court. (ECF No. 1.) On
March 15, 2016, Defendants filed this Motion to Transfer
Venue to the United States District Court for the District of
Nebraska. (Mot. 1.) The Motion is now before the Court for
consideration.
III.
LEGAL STANDARD
Even
where venue is proper in a particular district, a court has
discretion to transfer a case "to any other district or
division where it might have been brought." 28 U.S.C.
§ 1404(a). A decision "to transfer requires an
individualized, case-by-case consideration of convenience and
fairness." Jones v. GNC Franchising, Inc., 211
F.3d 495, 498 (9th Cir. 2000) (citing Stewart Org. v.
Ricoh Corp., 487 U.S. 22, 29 (1988)).
Analysis
under § 1404 is two-fold. First, it must be shown that
subject matter jurisdiction, personal jurisdiction, and
proper venue exist in the transferee court. Metz v. U.S.
Life Ins. Co. in City of New York, 674 F.Supp.2d 1141,
1145 (C.D. Cal. 2009); see also Hoffman v. Blaski,
363 U.S. 335, 344 (1960).[2]
Second,
the court must weigh a multitude of factors to consider to
determine whether transfer pursuant to § 1404(a) 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 ...