Cantley v. Radiancy, Inc.

          ORDER LIFTING STAY ORDER GRANTING DEFENDANTS’ MOTION FOR A CHANGE OF VENUE (DOC. 24)

          JENNIFER L. THURSTON, UNITED STATES MAGISTRATE JUDGE

         Plaintiff April Cantley asserts Defendants Radiancy, Inc. and Photomedex, Inc. are liable for false and misleading business practices in violation of California’s Unfair Competition Law, False Advertising Law, and the Consumer Legal Remedies Act. Defendants seek a change of venue to the District of Columbia, where a matter with similar claims is currently pending. (Doc. 24) Plaintiff opposes the motion, arguing the proper district is the Eastern District of California. The Court heard the oral arguments of the parties on May 9, 2016 and, at that time, stayed the matter to allow the motion practice in the District of Columbia to settle. Because that has occurred, the stay is LIFTED. Also, for the reasons set forth below, Defendants’ motion for a change of venue is GRANTED.

         I. Background

         Plaintiff, a resident of Kern County, alleges that she viewed a “no!no!^TM Hair Product Line television and advertisement/infomercial and visited the no!no!^TM Hair Product Line website.” (Doc. 1-1 at 35-37, ¶¶ 5 and 14) She asserts that no!no!^TM Hair Product Line use “Thermicon Technology, ” which Defendants described as “patented technology to conduct a gentle pulse of heat to the hair.” (Id. at 40, ¶ 17) Plaintiff alleges Defendants made “representations, including, but not limited to, ‘painless, ’ ‘no hair with no pain, ’ ‘laser-like results without the high cost, ’ ‘smooth skin without the pain, ’ and ‘the most effective, long term hair removal system ever created, ’ and that hair ‘stays away for weeks with no pain’ in the product name, no the product label (which was prominently featured in advertisements for the no!no!^TM Hair Product Line), as well as in the product advertisements she viewed in print, television, and online advertisements on the www.my-no-no.com and other websites.” (Id. at 39, ¶ 14)

         According to Plaintiff, prior to purchasing the product, she “was exposed to print, television and online advertisements stating that she could receive a full refund of the product price, shipping and handling, and return shipping within 60 days if she was unhappy with the no!no!^TM Hair product.” (Doc. 1-1 at 39, ¶15) Plaintiff contends that “Defendants represented, through print, television and online advertisements, including but not limited to the www.my-no-no.com website, that the no!no!^TMHair Product Line was backed by a ‘60-Day Triple Guarantee!’” (Id. at 39-40, ¶15) She asserts Defendants’ advertisement also “make conflicting representations that the no!no!^TM Hair Product Line ‘carries a 30-day money back guarantee, ’ and that “[i]f you choose to return before you’ve used the unit for at least 45 days then we will gladly refund your purchase price but the cost of postage to return is your responsibility.” (Id. at ¶16, footnotes omitted)

         Plaintiff alleges she “purchased the no!no!^TM Hair 8800 for approximately $270.00 from the www.my-no-no.com website, from her home in Bakersfield, California.” (Doc. 1-1 at 41, ¶ 21) She asserts she purchased the product “for personal use in reliance upon the ‘no hair with no pain, ’ ‘painless, ’ ‘laser-like results without the high cost, ’ ‘smooth skin without the pain, ’ ‘the most effective, long-term hair removal system ever created, ’ and that ‘hair stays away for weeks with no pain’ representations.” (Id., ¶ 22) However, Plaintiff contends that after using the “as directed, . . . [she] experienced pain when using the no!no!^TM Hair 8800, including burn marks on her skin and irritated skin, and the product did not effectively remove hair or leave her skin smooth after its use as advertised.” (Id., ¶ 23) Thus, Plaintiff asserts “the advertised claims upon which she had relied in purchasing the high-cost product were false.” (Id.)

         Plaintiff reports she “called Defendants to take advantage of the 60-Day Triple Guarantee and/or refund policy, ” but was told by a representative “that she was required to use the product for a minimum of 45 days before she would qualify for a refund of the purchase price.” (Doc. 1-1 at 41, ¶ 25) She asserts, “Defendants fail to honor the 30-day money back guarantee contained in the no!no!^TM Hair Line Product Return Policy and fail to honor their representations that consumers may choose to return the no!no!^TM Hair products before using the unit for at least 45 days for a refund of the complete purchase price, less postage.” (Id.) Rather, Plaintiff contends the “60-Day Triple Guarantee is actually a 15-day refund policy that is tolled until 45 days after the consumer receives the no!no!^TM Hair product.” (Id. at 41-42, ¶ 25)

         Plaintiff asserts, “Members of the public are likely to be deceived by Defendants’ misrepresentations as to the pain and efficacy associated with the use of the no!no!^TM Hair Product Line.” (Doc. 1-1 at 40, ¶18) In addition, she alleges the public is “likely to be deceived by Defendants’ misrepresentations as to the money back guarantee, Triple Guarantee, and return policy associated with the purchase of the no!no!^TM Hair Product Line.” (Id. at ¶19) Plaintiff concludes that “[a]s a proximate result of Defendants’ false and misleading claims, Plaintiff and other similarly situated consumers have suffered injury in fact and have lost money or property as a result of Defendants’ false and deceptive advertising and unfair business practices.” (Id. at 42, ¶ 26)

         Accordingly, Plaintiff filed a complaint in Kern County Superior Court, on behalf of herself and all others similarly situated in the state of California. (Doc. 1-1 at) She filed an amended complaint on July 27, 2014, alleging the defendants are liable for false and misleading business practices in violation of California’s Unfair Competition Law (Cal. Bus. & Prof. Code §§ 17200), False Advertising Law (Cal. Bus. & Prof. Code §§17500-17536), and the Consumer Legal Remedies Act (Cal. Civ. Code §§ 1770). She seeks to represent a class defined as follows:

All persons who purchased a no!no!^TM Hair Product, including: (1) no!no!^TM Hair 8800; (2) no!no!^TM Hair Classic; (3) no!no!^TM Hair Plus; or (4) no!no!^TM Hair Pro, in the state of California at any time during the time period beginning four years prior to the inception of this action through the conclusion of this action.

(Doc. 1-1 at 42, ¶ 28) However, “individuals who received a full refund for any or all purchases of the product” are excluded from the class. (Id., ¶ 29)

         On October 29, 2015, Defendants filed a Notice of Removal, thereby initiating the matter in this Court. (Doc. 1) Defendants filed the Motion to Transfer Venue Pursuant to 28 U.S.C. § 1404(a) on March 11, 2016, asserting the action should be transferred to the United States District Court for the District of Columbia, where a consolidated action is currently pending with “the same Defendants, identical California consumer law claims, and nearly identical fraud-based allegations concerning the same products.” (Doc. 24 at 7) Plaintiff filed her opposition to the motion on April 8, 2016 (Doc. 26), to which Defendants filed a reply on April 20, 2016 (Doc. 28).

         II. Legal Standard

         “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil matter to any other district or division where it might have been brought.” 28 U.S.C. § 1404(a). The Supreme Court explained the § 1404(a) analysis should be an “individualized, case-by-case consideration of convenience and fairness.” ...