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Santich v. GNC Holdings, Inc.

United States District Court, S.D. California

November 21, 2017

MELISSA SANTICH and KEITH BLACKMER, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
GNC HOLDINGS, INC., Defendant.

          ORDER GRANTING DEFENDANT'S MOTION TO DISMISS PLAINTIFFS' AMENDED COMPLAINT

          HON. DANA M. SABRAW UNITED STATES DISTRICT JUDGE

         This case comes before the Court on Defendant's motion to dismiss Plaintiffs' Amended Complaint. Plaintiffs filed an opposition to the motion, and Defendant filed a reply. The motion came on for hearing on November 17, 2017. James Shah appeared for Plaintiffs and Sean Sullivan appeared for Defendant. After thoroughly considering the issues, the Court grants the motion.

         I.

         BACKGROUND

         On March 17, 2017, Plaintiffs filed the present case, on behalf of themselves and a proposed class of California and nationwide consumers, alleging claims against Defendant for breach of contract, violation of California's Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, et seq. (“UCL”), California's Consumers Legal Remedies Act, Cal. Civ. Code § 1750, et seq. (“CLRA”), and California's False Advertising Law, Cal. Bus. & Prof. Code § 17500, et seq. (“FAL”). In response to the Complaint, Defendant filed a motion to dismiss, or in the alternative, to transfer this case to the United States District Court for the Western District of Pennsylvania, presumably so it could be consolidated with Cook v. General Nutrition Corp., Case No. 17-135. The Court denied the motion to transfer, and granted in part and denied in part the motion to dismiss. Specifically, the Court denied the motion to dismiss Plaintiffs' breach of contract claim and granted the motion to dismiss Plaintiffs' remaining claims with leave to amend.

         Plaintiffs filed their Amended Complaint on September 18, 2017. In response, Defendant filed the present motion.

         II.

         DISCUSSION

         As in the first motion to dismiss, Defendant argues Plaintiffs' claims should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendant also asserts, for the first time, that the case should be dismissed pursuant to the first-to-file rule.[1]

         The first-to-file rule “is a generally recognized doctrine of federal comity which permits a district court to decline jurisdiction over an action when a complaint involving the same parties and issues has already been filed in another district.” Pacesetter Sys. v. Medtronic, Inc., 678 F.2d 93, 94-95 (9th Cir. 1982) (citations omitted). See also Alltrade, Inc. v. Uniweld Prods., 946 F.2d 622, 623 (9th Cir. 1991). (stating first-to-file rule gives federal district courts discretion “to transfer, stay, or dismiss an action when a similar complaint has already been filed in another federal court[.]”) “The first-to-file rule was developed to serve[ ] the purpose of promoting efficiency well and should not be disregarded lightly.” Alltrade, 946 F.2d at 625 (internal quotation marks and citations omitted). Courts analyze three factors to determine the applicability of the first-to-file rule: (1) “chronology of the lawsuits, ” (2) “similarity of the parties, ” and (3) “similarity of the issues.” Kohn Law Grp., Inc. v. Auto Parts Mfg., Miss., Inc., 787 F.3d 1237, 1240 (9th Cir. 2015).

         A. Chronology of the Lawsuits

         The first factor, chronology of the lawsuits, “simply requires that the case in question was filed later in time.” Therapy Stores, Inc. v. JGV Apparel Grp., LLC, No. 4:16-CV-02588-YGR, 2016 WL 4492583, at *4 (N.D. Cal. Aug. 26, 2016) (citations omitted). Here, there is no dispute this case was filed after Cook. (Mem. of Law in Opp'n to Mot. at 16.)

         Plaintiffs argue, however, that the Cook case “no longer exists” because the district court dismissed the case with prejudice. (Mem. of Law in Opp'n to Mot. at 14.) In this situation, Plaintiffs assert the first-to-file rule no longer applies because “there is no concurrent action pending.” (Id.) Plaintiffs cite a number of cases to support this argument, but each is distinguishable from the facts of the present case. In ABB Automation, Inc. v. Honeywell Inc., No. C-2-01-325, 2002 WL 483523 (S.D. Ohio Mar. 20, 2002), and Freed Designs, Inc. v. Sig Sauer, Inc., No. 2:14-cv-09068-ODW(AGRx), 2015 WL 12656279 (C.D. Cal. June 10, 2015), the first-filed case was dismissed for lack of standing. In Wallerstein v. Dole Fresh Vegetables, Inc., 967 F.Supp.2d 1289 (N.D. Cal. 2013), the first-filed case was voluntarily dismissed by the plaintiffs. And in Executive Law Group, Inc. v. Executive Law Group PL, No. SACV 13-01823 MMM (RNBx), 2014 WL 12577090 (C.D. Cal. Mar. 24, 2014), the first-filed case was dismissed for lack of personal jurisdiction. Under these circumstances, it makes sense that the first-to-file rule would not apply because there was no decision on the merits, and hence no efficiencies to be gained by consolidating the cases in one court. Here, by contrast, Cook was dismissed on the merits in a lengthy order. Furthermore, unlike in any of the cases cited by Plaintiffs, the plaintiffs in Cook have appealed the dismissal of their case. Thus, although the case is not currently active in the district court, it is pending before the United States Court of Appeals for the Third Circuit.[2] Plaintiffs' suggestion that the first-to-file rule does not apply here because Cook was dismissed is, therefore, not persuasive. Rather, Cook remains pending, and it is the first-filed case.

         B. ...


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