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Colvig v. Marianna Industries, Inc.

United States District Court, C.D. California

July 12, 2016

KIMBERLY COLVIG Plaintiff,
v.
MARIANNA INDUSTRIES, INC., ATEF HALAKA, and DOES 1-100, inclusive, Defendants.

          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 ...


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