-MLG Michael Kurtz v. Intelius, Inc et al, No. 8:2011cv01382 - Document 54 (C.D. Cal. 2011)

Court Description: ORDER granting 13 Motion to Transfer signed by Judge John A. Mendez on 9/8/11: CASE TRANSFERRED to Central District of California. It is further ordered that all other filed motions are stayed pending transfer. CASE CLOSED. (Kaminski, H)[Transferred from California Eastern on 9/9/2011.]

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-MLG Michael Kurtz v. Intelius, Inc et al Doc. 54 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 19 MICHAEL KURTZ, individually and ) on behalf of all other similarly ) situated California Residents, ) ) Plaintiff, ) ) v. ) ) INTELIUS, INC., a Delaware ) Corporation; INTELIUS SALES ) COMPANY LLC, a/k/a INTELIUS ) SALES, LLC, a Nevada Limited ) Liability Company; and ADAPTIVE ) MARKETING LLC, a Delaware ) Limited Liability Company, ) ) Defendants. ) 20 Case No. 2:11-CV-01009-JAM-JFM ORDER GRANTING DEFENDANTS’ MOTION TO TRANSFER This matter comes before the Court on Defendants Intelius, 21 Inc. and Intelius Sales Company, LLC’s (collectively “Defendants”) 22 Motion to Transfer this action to the Central District of 23 California (Doc. #13), which Plaintiff Michael Kurtz (“Plaintiff”) 24 opposes (Doc. #34).1 25 For the reasons set forth below(and not because this Court 26 found either Yogi Berra or Sun Tsu to be persuasive authority), 27 1 28 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was originally scheduled for August 3, 2011. 1 Dockets.Justia.com 1 Defendants’ Motion to Transfer is granted. 2 I. 3 FACTUAL AND PROCEDURAL BACKGROUND This case was initiated as a class action suit. The named 4 Plaintiffs, and proposed putative class of California consumers, 5 seek relief based on allegedly deceptive advertisements that 6 appeared on Defendants’ website. 7 Transfer, Doc. #13-1 (“Defs MT”) at pg. 1. 8 9 See Defendants’ Motion to Prior to the filing of this case, Plaintiffs’ attorneys filed an identical action in the Central District of California through 10 different named plaintiffs, seeking relief under various California 11 laws. 12 09-1031 AG (second amended complaint filed June 11, 2010). 13 previous case was summarily dismissed with prejudice. 14 in lieu of paying sanctions, the Baxter plaintiffs, represented by 15 the same attorneys as the Plaintiffs in this case, stipulated to 16 not file another case against Intelius involving the same facts. 17 See Defs MT at pg. 1-2. Compare Doc. #1 with Baxter v. Intelius, et al., Case No. This Importantly, 18 19 20 II. A. 21 22 OPINION Legal Standard 1. Motion to Transfer 28 U.S.C. section 1404(a) authorizes the transfer of any case 23 to a more convenient forum if transfer is in the interest of 24 justice. 25 witnesses, in the interest of justice, a district court may 26 transfer any civil action to any other district or division where 27 it might have been brought. 28 district courts have discretion to adjudicate motions for transfer Specifically, “[f]or the convenience of the parties and (28 U.S.C. § 1404(a)). 2 Indeed, 1 according to “an individualized, case-by-case consideration of 2 convenience and fairness,” Stewart Org., Inc. v. Ricoh Corp., 487 3 U.S. 22, 29 (1988), and the burden is on the moving party to show 4 that transfer is appropriate. See Commodity Futures Trading Com. v. 5 Savage, 611 F.2d 270, 279 (9th Cir. 1979). 6 In determining whether transfer is warranted, the Ninth 7 Circuit requires district courts to weigh multiple factors, 8 including: (1) the location where the relevant agreements were 9 negotiated and executed, (2) the state most familiar with the 10 governing law, (3) the plaintiff's choice of forum, (4) the 11 parties’ contacts with the forum, (5) the contacts relating to the 12 plaintiff's cause of action in the chosen forum, (6) the 13 differences in the costs of litigation in the two forums, (7) the 14 availability of compulsory process to compel attendance of 15 unwilling non-party witnesses, and (8) the ease of access to 16 sources of proof. 17 498-99 (9th Cir. 2000). 18 19 2. Jones v. GNC Franchising, Inc., 211 F.3d 495, Request for Judicial Notice A court may consider material beyond the pleadings if the 20 material is attached to, or relied on by, the complaint, or the 21 court takes judicial notice of matters of public record, provided 22 the facts are not subject to reasonable dispute. 23 Stryker Corp., 2009 WL 2241664 at *2 (C.D. Cal. Mar. 30, 2009) 24 (citing Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 25 2001) and FED. R. EVID. 201). 26 E.g., Sherman v. Defendants have requested this Court take judicial notice of 27 public records. Defendants’ Request for Judicial Notice, Doc. #14. 28 These documents are relevant to the pending motion to transfer, and 3 1 are not subject to reasonable dispute. See FED. R. EVID. 201. 2 Accordingly, this Court grants Defendants’ request in its entirety 3 and considers the proffered documents in ruling on Defendants’ 4 Motion to Transfer. 5 B. Defendants’ Motion to Transfer 6 As set forth in Defendants’ motion, this Court must find that 7 the pending action could have originally been brought in the 8 Central District, and that the transfer would be convenient and in 9 the interests of justice. Defendants’ motion demonstrates that 10 both of these requirements for transfer are satisfied, and the 11 factors provided by the Ninth Circuit weigh in favor of transfer, 12 as discussed below. 13 First, Defendants established that they could be subject to 14 suit in any district in California, which Plaintiffs did not 15 dispute in their Opposition. 16 See Defs MT at pg. 7-8. Next, Defendants argue that transferring this action is in the 17 interests of justice. Defs MT at pg. 8-12 (citing Wireless 18 Consumers Alliance v. T-Mobile USA, Inc., 2003 WL 22387598 (N.D. 19 Cal. 2003)). 20 determining whether transfer is appropriate is conservation of 21 judicial resources, and Defendants argue that this factor weighs 22 heavily in favor of transfer. 23 that judicial resources are conserved when an action is adjudicated 24 by a court that has already “committed judicial resources to the 25 contested issues and is familiar with the facts of the case.” 26 Rainin Instrument, LLC v. Gilson, Inc., 2006 WL 708660 at *4 (N.D. 27 Cal. 2004). 28 been litigated in the Central District, making that court An important factor for this Court to consider in Id. at pg. 9-11. This Court agrees See An identical case, brought by the same attorneys, has 4 1 intimately familiar with the issues in the case. Moreover, as 2 Defendants point out, had this case been initiated in the Central 3 District, it would have been related to the Baxter matter and heard 4 by the same judge. 5 Rule 83 (“At the time a civil action . . . is filed, the attorney 6 shall file . . . a Notice of Related Case(s), stating whether any 7 action previously filed . . .: (a) [arises] from the same or a 8 closely related transaction, happening or event; or (b) [requires] 9 determination of the same or substantially related or similar See Central District of California Local Rules, 10 questions of law and fact; or (c) . . . would entail substantial 11 duplication of labor if heard by different judges.”). 12 accusation that Defendants are forum shopping is unfounded. 13 Instead, it is Plaintiffs that seek to get around an adverse ruling 14 by finding new named Plaintiffs and filing in a different district. 15 Defendants have also established that transfer of this case to Plaintiffs’ 16 the Central District is convenient because the Baxter matter, 17 involving the same facts, witnesses, and evidence, was conveniently 18 venued in the Central District. 19 the named Plaintiff in this case resides in the Eastern District, 20 Defendants note that the class of Plaintiffs are located throughout 21 California. 22 District should be discounted in light of the Baxter holding, as 23 the judicially noticed matters before this Court make clear that 24 Plaintiffs are simply attempting to re-litigate an unsuccessful 25 case in another forum. Defs MT at pg. 12-15. Although Moreover, Plaintiffs’ choice of forum in the Eastern 26 Finally, this Court notes that the Keithly decision does not 27 affect the outcome of this case, nor does Plaintiffs’ citation to 28 the “ROSCA” statute. See Keithly v. Intelius, Inc., et al., 764 5 1 F.Supp.2d 1257 (W.D. Wash. 2011). 2 decision helps Defendants. 3 dismissed all of the plaintiffs’ claims, several of which are 4 presented in this case, and were presented in Baxter, but found 5 that plaintiffs had stated a claim under Washington State Law. 6 id. 7 therefore has no bearing on Defendants’ Motion to Transfer. 8 does the ROSCA statute merit any consideration, as it does not 9 appear in Plaintiffs’ complaint. 10 If anything, the Keithly In that case, the district court See Keithly is clearly distinguishable from the case at bar, and Nor In light of Plaintiffs’ attempt to re-litigate a previously 11 filed, and dismissed action, Defendants’ Motion to Transfer is 12 granted. 13 C. Other Pending Motions 14 In light of this Court’s ruling on Defendants’ Motion to 15 Transfer, all other pending motions will not be considered by this 16 Court and may be considered in the Central District. 17 American Pipe & Constr. Co., 316 F. Supp. 837, 839 (C.D. Cal. 1970) 18 (transferor court loses jurisdiction over action upon transfer). See Utah v. 19 20 21 III. ORDER After carefully considering the papers submitted in this 22 matter, it is hereby ordered that Defendants’ Motion to Transfer is 23 GRANTED and this case shall be transferred to the Central District 24 of California, Southern Division. 25 other filed motions are stayed pending transfer. 26 27 It is further ordered that all IT IS SO ORDERED. Dated: September 8, 2011 ____________________________ JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE 28 6

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