United States District Court, E.D. California
APRIL CANTLEY, individually and behalf of all other similarly situated, Plaintiff,
v.
RADIANCY, INC., et al., Defendants.
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.” ...