Prescott et al v. Bayer HealthCare Pharmaceuticals Inc. et al, No. 5:2020cv00102 - Document 46 (N.D. Cal. 2020)
Court Description: ORDER DENYING Defendant's Motion to Dismiss for Lack of Personal Jurisdiction and to Transfer Venue. Re: Dkt. No. 25 . Signed by Judge Nathanael Cousins. (lmh, COURT STAFF) (Filed on 6/29/2020)
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Prescott et al v. Bayer HealthCare Pharmaceuticals Inc. et al Doc. 46 Case 5:20-cv-00102-NC Document 46 Filed 06/29/20 Page 1 of 12 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 STEVEN PRESCOTT et al., 8 Plaintiffs, 9 v. 10 BAYER HEALTHCARE LLC, et al., United States District Court Northern District of California 11 Defendants. 12 Case No. 5:20-cv-00102 NC ORDER DENYING DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND TO TRANSFER VENUE Re: Dkt. No. 25 13 Plaintiffs Steven Prescott and Mike Xavier bring this putative class action against 14 15 defendants Bayer HealthCare LLC and Beiersdorf, Inc. for (1) unfair and unlawful 16 business practices, (2) deceptive advertising practices, (3) violation of the Consumers 17 Legal Remedies Act, (4) breach of express warranty, and (5) unjust enrichment. See Dkt. 18 No. 1; Dkt. No. 28. Before the Court are Defendants’ motions to dismiss for lack of 19 personal jurisdiction and to transfer venue. See Dkt. No. 25. The Court concludes that 20 Defendants are subject to this Court’s personal jurisdiction and that transferring this case 21 to the District of New Jersey would not substantially increase convenience or fairness. 22 Accordingly, the Court DENIES Defendants’ motion. 23 I. 24 25 Background A. Factual Allegations Plaintiffs Steven Prescott and Mike Xavier are residents of California. Dkt. No. 28 26 (“FAC”) ¶¶ 10–11. In 2017, both men bought various Coppertone sunscreen lotions 27 because the products’ label and advertising claimed the lotions were “mineral based.” Id. 28 The lotions, however, allegedly contain more chemical active ingredients than mineral Dockets.Justia.com Case 5:20-cv-00102-NC Document 46 Filed 06/29/20 Page 2 of 12 1 active ingredients. See id. ¶¶ 4, 31–32. If Prescott and Xavier knew that the lotions 2 contained chemical active ingredients, they would not have purchased it. Id. 3 Bayer HealthCare LLC is a Delaware company that has its principal place of 4 business in Whippany, New Jersey. Id. ¶ 12. Bayer owned, manufactured, or distributed 5 Coppertone sunscreen products and had created or authorized the labeling for those 6 products. Id. ¶ 12. Beiersdorf, Inc. is also a Delaware corporation and has its principal 7 place of business in Wilton, Connecticut. Id. ¶ 13. Both Bayer and Beiersdorf conduct 8 business in California. Id. ¶ 12–13. In September 2019, Bayer’s parent company sold the Coppertone brand, including United States District Court Northern District of California 9 10 the Coppertone sunscreen lotions, to Beiersdorf’s parent company. Id. ¶ 14. Beiersdorf, in 11 turn, now owns, manufactures, and distributes the Coppertone products, and also created or 12 authorized the labeling for the products. Id. ¶ 13. 13 B. Procedural History Plaintiffs filed their initial complaint on January 3, 2020. See Dkt. No. 1. After 14 15 Defendants filed the instant motion to dismiss for lack of personal jurisdiction and motion 16 to transfer venue (see Dkt. No. 25), Plaintiffs filed their first amended complaint alleging 17 (1) unfair and unlawful business practices, (2) deceptive advertising practices, (3) violation 18 of the Consumers Legal Remedies Act, (4) breach of express warranty, and (5) unjust 19 enrichment. See FAC. The amended complaint dropped Bayer HealthCare 20 Pharmaceuticals, Inc., Bayer AG, Beiersdorf North America, Inc., and Beiersdorf AG as 21 defendants. Id. All parties consented to the jurisdiction of a magistrate judge. See Dkt. 22 Nos. 8, 24. 23 II. 24 25 Legal Standard A. Personal Jurisdiction When a defendant moves to dismiss a complaint for lack of personal jurisdiction, 26 the plaintiff bears the burden to show that jurisdiction is appropriate. Sher v. Johnson, 911 27 F.2d 1357, 1361 (9th Cir.1990). When no evidentiary hearing is held regarding personal 28 jurisdiction, “the plaintiff need only make a prima facie showing of jurisdictional facts to 2 Case 5:20-cv-00102-NC Document 46 Filed 06/29/20 Page 3 of 12 1 withstand the motion to dismiss.’” Brayton Purcell LLP v. Recordon & Recordon, 606 2 F.3d 1124, 1127 (9th Cir. 2010) (quoting Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 3 (9th Cir. 2006)). “[W]e may not assume the truth of allegations in a pleading which are 4 contradicted by affidavit, but we resolve factual disputes in the plaintiff’s favor.” Mavrix 5 Photo, Inc. v. Brand Technologies, Inc., 647 F.3d 1218, 1223 (9th Cir. 2011) (citing Data 6 Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d 1280, 1284 (9th Cir. 1977)). The plaintiff 7 cannot “simply rest on the bare allegations of its complaint,” but uncontroverted 8 allegations in the complaint must be taken as true. Schwarzenegger v. Fred Martin Motor 9 Co., 374 F.3d 797, 800 (9th Cir. 2004) (quoting Amba Mktg. Sys., Inc. v. Jobar Int’l, Inc., 10 United States District Court Northern District of California 11 551 F.2d 784, 787 (9th Cir. 1977)). Due process requires that a defendant “have certain minimum contacts” with the 12 forum state “such that the maintenance of the suit does not offend ‘traditional notions of 13 fair play and substantial justice.’” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). 14 There are two forms of personal jurisdiction: specific jurisdiction or general jurisdiction. 15 Daimler AG v Bauman, 571 U.S. 117, 127. General jurisdiction exists when a defendant is 16 domiciled in the forum state or his activities in the forum are “substantial” or “continuous 17 and systematic.” Panavision Intern., L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir. 1998) 18 (internal quotation marks omitted). Typically, a forum has general jurisdiction over a 19 business only if it is incorporated in the forum state or has its principal place of business in 20 the forum state. See Daimler AG, 571 U.S. at 139. When the nonresident defendant’s 21 contacts with the forum are insufficiently pervasive to subject it to general jurisdiction, the 22 court must ask whether the “nature and quality” of his contacts are sufficient to exercise 23 specific jurisdiction. Data Disc, 557 F.2d at 1287. Specific jurisdiction exists when the 24 case arises out of the defendant’s conduct in the forum state. Ranza v. Nike, Inc., 793 F.3d 25 1059, 1068 (9th Cir. 2015). 26 27 28 B. Transfer Venue 28 U.S.C. § 1404(a) provides: “For the convenience of the parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or 3 Case 5:20-cv-00102-NC Document 46 Filed 06/29/20 Page 4 of 12 1 division where it might have been brought.” The purpose of the statute is “to prevent the 2 waste of time, energy and money and to protect litigants, witnesses and the public against 3 unnecessary inconvenience and expense.” Van Dusen v. Barrack, 376 U.S. 612, 616 4 (1964). In order to transfer venue pursuant to § 1404(a), the court “requires two 5 findings—that the [transferee] district court is one where the action ‘might have been 6 brought’ and that the convenience of parties and witnesses in the interest of justice favor 7 transfer.” Hatch v. Reliance Ins. Co., 758 F.2d 409, 414 (9th Cir. 1985) 8 United States District Court Northern District of California 9 To determine whether an action “might have been brought” in a district, the court looks to whether the action initially could have been commenced in that district. See Van 10 Dusen, 376 U.S. at 620. If the transferee district is appropriate, the court then considers 11 whether the transfer would be convenient and fair. Jones v. GNC Franchising, Inc., 211 12 F.3d 495, 498–99 (9th Cir. 2000). When conducting that analysis, the court must weight 13 several factors including: “(1) the location where the relevant agreements were negotiated 14 and executed, (2) the state that is most familiar with the governing law, (3) the plaintiff’s 15 choice of forum, (4) the respective parties’ contacts with the forum, (5) the contacts 16 relating to the plaintiff’s cause of action in the chosen forum, (6) the differences in the 17 costs of litigation in the two forums, (7) the availability of compulsory process to compel 18 attendance of unwilling non-party witnesses, and (8) the ease of access to sources of 19 proof.” Id. 20 III. Discussion 21 22 23 24 25 As previewed above, Defendants move to dismiss for lack of personal jurisdiction and to transfer venue. The Court discusses each ground for dismissal in turn. A. Personal Jurisdiction 1. Claims by Non-California Plaintiffs Plaintiffs concede that the Court does not have general jurisdiction over any 26 Defendant. See Dkt. No. 29 at 23 n.6. Instead, they contend that the Court can exercise 27 specific jurisdiction over all claims. While Defendants concede that the Court has specific 28 jurisdiction over claims brought by Prescott, Xavier, and putative California class 4 Case 5:20-cv-00102-NC Document 46 Filed 06/29/20 Page 5 of 12 1 members, they argue that the Court does not have specific jurisdiction over claims brought 2 by absent non-California class members. See Dkt. No. 25 at 11. United States District Court Northern District of California 3 Defendants rely on the Supreme Court’s holding in Bristol-Myers Squibb Co. v. 4 Superior Court of California., 137 S. Ct. 1773, 1778 (2017), which involved a mass tort 5 action brought by individuals that took a blood thinning drug, Plavix. In Bristol-Meyers, 6 the Supreme Court applied “settled principles regarding specific jurisdiction” and held that 7 California state courts cannot exercise specific personal jurisdiction using a “sliding scale 8 approach” where “the strength of the requisite connection between the forum and the 9 specific claims at issue is relaxed if the defendant has extensive forum contacts that are 10 unrelated to those claims.” Id. at 1781. Applying those “settled principles,” the Supreme 11 Court noted that the “nonresidents [in that case] were not prescribed Plavix in California, 12 did not purchase Plavix in California, did not ingest Plavix in California, and were not 13 injured by Plavix in California.” Id. The fact that “other plaintiffs were prescribed, 14 obtained, and ingested Plavix in California—and allegedly sustained the same injuries as 15 did the nonresidents” was not enough to warrant specific jurisdiction. Id. The Supreme 16 Court, however, left “open the question whether the Fifth Amendment imposes the same 17 restrictions on the exercise of personal jurisdiction by a federal court.” Id. at 1784; see 18 also id. at 1789 n.4 (Sotomayor, J., dissenting) (noting that the majority opinion “does not 19 confront the question whether its opinion here would also apply to a class action”). 20 In Fitzhenry-Russell v. Dr. Pepper Snapple Grp., Inc., No. 17-cv-00564-NC, 2017 21 WL 4224723, at *4 (N.D. Cal. Sept. 22, 2017), this Court concluded that Bristol-Meyer 22 does not extend to federal class actions. See also King v. Bumble Trading, Inc., No. 18-cv- 23 06868-NC, 2020 WL 663741, at *4–5 (N.D. Cal. Feb. 11, 2020) (following Fitzhenry- 24 Russell). In a mass tort action, such as the one in Bristol-Meyers, each plaintiff is a real 25 party in interest to the complaint, meaning that they are named as plaintiffs in the 26 complaints. But in class actions, only the plaintiffs selected to represent the class are 27 named in the complaint. Fitzhenry-Russel, 2017 WL 4224723, at *4. Although “[the] 28 label ‘party’ does not indicate an absolute characteristic,” it does alter the “applicability of 5 Case 5:20-cv-00102-NC Document 46 Filed 06/29/20 Page 6 of 12 1 various procedural rules.” Devlin v. Scardelletti, 536 U.S. 1, 10 (2002). For example, 2 nonnamed members are considered parties for purposes of tolling statutes of limitation, but 3 are not considered when determining diversity of citizenship. Id. United States District Court Northern District of California 4 Courts in this district remain split over the application of Bristol-Meyers to federal 5 class actions. See Allen v. ConAgra Foods, Inc., No. 13-cv-01279-WHO, 2018 WL 6 6460451, at *7 (N.D. Cal. Dec. 10, 2018) (collecting cases). The Ninth Circuit, however, 7 has yet to rule on this issue. But at least one other circuit court of appeal has declined to 8 apply Bristol-Meyers to federal class actions. See Mussat v. IQVIA, Inc., 953 F.3d 441, 9 448 (7th Cir. 2020) (“[A]bsentees [in a class action] are more like nonparties, and thus 10 there is no need to locate each and every one of them and conduct a separate personal- 11 jurisdiction analysis of their claims.”). 12 Because Bristol-Meyers is distinguishable from this case, the Court will follow its 13 prior decisions and find that it has specific jurisdiction over the out-of-state class 14 members’ claims. Because Defendants offer no alternative arguments on why the Court 15 lacks specific jurisdiction over the out-of-state residents’ claims, the Court DENIES 16 Defendant’s motion to dismiss for lack of personal jurisdiction. 17 2. 18 Claims Against Bayer HealthCare Pharmaceuticals Inc. and Beiersdorf North America, Inc. In their initial complaint, Plaintiffs also sued Bayer HealthCare Pharmaceuticals, 19 20 Inc. (“BHP”), Bayer AG, Beiersdorf North America, Inc. (“BNA”), and Beiersdorf AG. See Compl. ¶¶ 12, 14, 16–17. Defendants argue that the Court lacks personal jurisdiction 21 over BHP and BNA. See Dkt. No. 25 at 23. Since Defendants filed the instant motion to 22 dismiss, however, Plaintiffs amended their complaint and dropped BHP, Bayer AG, BNA, 23 and Beiersdorf AG as defendants. See FAC. Accordingly, Defendants’ motion to dismiss 24 to BHP and BNA is DENIED as moot. 25 26 B. Transfer of Venue To prevail on their motion to transfer this case to New Jersey, Defendants must 27 show that the District of New Jersey has personal jurisdiction over the Defendants and that 28 6 Case 5:20-cv-00102-NC Document 46 Filed 06/29/20 Page 7 of 12 1 it is a more convenient forum. The Court agrees that the suit could have been brought in 2 the District of New Jersey, but finds that a transfer to New Jersey would not be more 3 convenient or in the interests of justice. 4 United States District Court Northern District of California 5 1. Proper Venue To determine whether an action “might have been brought” in a district, the court 6 looks to whether the action initially could have been commenced in that district. See Van 7 Dusen, 376 U.S. at 620. Here, Plaintiffs argue that this lawsuit could not have been 8 brought in the District of New Jersey because Beiersdorf is not subject to personal 9 jurisdiction in New Jersey. The Court disagrees. 10 The Ninth Circuit applies a three-factor test for specific jurisdiction: (1) the 11 nonresident defendant purposefully directs his activities at the forum or performs some act 12 by which he purposefully avails himself the benefits and protections of its laws; (2) the 13 plaintiff’s claim arises out of the forum-related activities; and (3) the exercise of 14 jurisdiction is reasonable. Schwarzenegger, 374 F.3d at 802 (9th Cir.2004). 15 The first prong of the specific jurisdiction test is satisfied by showing either 16 “purposeful availment” or “purposeful direction” by the defendant. Brayton Purcell, 606 17 F.3d at 1128; see also Yahoo! Inc. v. La Ligue Contre Le Racisme Et L’Antisemitisme, 433 18 F.3d 1199, 1206 (9th Cir. 2006). “A purposeful availment analysis is most often used in 19 suits sounding in contract. A purposeful direction analysis, on the other hand, is most 20 often used in suits sounding in tort.” Schwarzenegger, 374 F.3d at 802 (internal citations 21 omitted). 22 Relevant here, the purposeful availment analysis requires “[a] showing that a 23 defendant purposefully availed himself of the privilege of doing business in a forum state.” 24 Id. This “typically consists of evidence of the defendant’s actions in the forum, such as 25 executing or performing a contract there.” Id. The purposeful availment requirement 26 “ensures that a defendant will not be hauled into a jurisdiction solely as a result of random, 27 fortuitous, or attenuated contacts . . . .” Burger King v. Rudzewicz, 471 U.S. 462, 475 28 (1985) (internal quotation marks and citations omitted). 7 Case 5:20-cv-00102-NC Document 46 Filed 06/29/20 Page 8 of 12 1 2 Fleckney states that his company has two offices in New Jersey and, more importantly, 3 some of the employees who labeled and formulated Coppertone worked in those offices. 4 See Dkt. No. 25-4 (“Fleckney Decl.”). Although Fleckney’s statement is fairly vague, it 5 crucially alleges conduct occurring in the District of New Jersey that led to the plaintiff’s 6 injuries. This is sufficient to establish that New Jersey can exercise specific jurisdiction 7 over Beiersdorf in connection with this lawsuit. 8 United States District Court Northern District of California Here, Beiersdorf presents a declaration by Vice President Graeme Fleckney. 2. Convenience and Fairness Factors 9 Even though this case could have been brought in the District of New Jersey, the 10 Court must conduct an “individualized, case-by-case consideration of convenience and 11 fairness” to decide whether to transfer. Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 12 (1988). Thus, the Court now applies the relevant Jones factors. See 211 F.3d at 498–99. 13 a. Plaintiff’s Choice of Forum 14 Normally, the Court accords substantial weight to a plaintiff’s choice of forum, but 15 that consideration is lessened when the plaintiff brings a nationwide class action. See Lou 16 v. Belzberg, 834 F.2d 730, 739 (9th Cir. 1987). This is because in class actions, there are 17 numerous other plaintiffs who can represent the class. See Koster v. (Am.) Lumbermens 18 Mut. Cas., Co., 330 U.S. 518, 524 (1947). Therefore, “the claim of any one plaintiff that a 19 forum is appropriate merely because it is his home forum is considerably weakened.” Id. 20 Nonetheless, “plaintiff’s choice of forum is entitled to at least some deference.” Doe v. 21 Epic Games, Inc., __ F. Supp. 3d ___, 2020 WL 376573, at *8 (N.D. Cal. Jan. 23, 2020); 22 see also Alul v. Am. Honda Motor Co., Inc., No. 16-cv-04384-JST, 2016 WL 7116934, at 23 *2 (N.D. Cal. Dec. 7, 2016). 24 25 b. Convenience of Parties and Witnesses “The convenience of the witnesses, particularly non-party witnesses, is often the 26 most important factor” in ruling on a motion to transfer venue under section 1404(a).” 27 Epic Games, 2020 WL 376573, at *8 (citing Grossman v. Johnson & Johnson, No. 14-cv- 28 03557-VC, 2015 WL 1743116, at *1 (N.D. Cal. Apr. 13, 2015)). When deciding this 8 Case 5:20-cv-00102-NC Document 46 Filed 06/29/20 Page 9 of 12 1 factor, “[c]ourts must consider not only the number of witnesses, but also the nature and 2 quality of their testimony.” Id. (citing United States ex rel. Tutanes-Luster v. Broker Sols., 3 Inc., No. 17-cv-04384-JST, 2019 WL 1024962, at *5 (N.D. Cal. Mar. 4, 2019)). 4 Accordingly, courts generally give less to weight to the convenience of “party witnesses or 5 witnesses employed by a party because these witnesses can be compelled by the parties to 6 testify regardless of where the litigation will occur.” Epic Games, 2020 WL 376573, at *8. 7 To establish inconvenience, “the moving party must name the witnesses, state their 8 location, and explain their testimony and its relevance.” Imran v. Vital Pharm., Inc., No. 9 18-cv-05758-JST, 2019 WL 1509180, at *4 (N.D. Cal. Apr. 5, 2019). Defendants argue that the convenience factor favors New Jersey because their United States District Court Northern District of California 10 11 operations, employees, and third-party consultants who have information about the 12 formulation and labeling of the Coppertone sunscreen products all reside on the East 13 Coast, while only the two named plaintiffs reside in California. Courts have observed, 14 however, that “the increased speed and ease of travel and communication . . . makes, 15 especially when a key issue is the location of witnesses, no forum ‘as inconvenient [today] 16 as it was in 1947.’” Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1336 (9th Cir. 1984) 17 (citing Manu International, S.A. v. Avon Products, Inc., 641 F.2d 62, 65 (2d Cir. 1981)). Nonetheless, this factor weighs in favor of transfer. Plaintiffs identify no third- 18 19 party witnesses that would be inconvenienced by a transfer to New Jersey. On the other 20 hand, Defendants point to third-party witnesses, i.e., their labeling consultants, that may be 21 inconvenienced if called to testify in this district. See Fleckney Decl. ¶ 19. Those third- 22 party witnesses all reside on the East Coast, closer to the District of New Jersey. Id. 23 Defendants, however, fail to provide with specificity the identity of those witnesses or the 24 content of their testimony. Thus, it is unclear if the convenience of the third-party 25 consultants is particularly consequential for this case. See Rafton v. Rydex Series Funds, 26 No. 10-cv-01171-CRB, 2010 WL 2629579, at 4 (N.D. Cal. June 29, 2010). Accordingly, 27 this factor weighs in favor of transfer, but only slightly. 28 /// 9 Case 5:20-cv-00102-NC Document 46 Filed 06/29/20 Page 10 of 12 1 2 Ease of Access to Evidence “[I]n the age of electronically stored information, the ease of access to evidence is 3 neutral because much of the evidence in this case will be electronic documents, which are 4 relatively easy to obtain in any district.” Epic Games, 2020 WL 376573, at *9 (citing 5 Simpson Strong-Tie Co., Inc. v. Oz-Post Int’l, LLC, No. 18-cv-01188-WHO, 2018 WL 6 3956430, at *8 (N.D. Cal. Aug. 17, 2018)). Most of the evidence in this case will likely be 7 documents and lab reports, which can easily be transmitted electronically. Defendants do 8 not suggest that there is physical evidence that could not be transmitted electronically. 9 Thus, this factor is neutral. 10 United States District Court Northern District of California c. d. Familiarity with the Governing Law 11 Here, three out of the five claims brought are based on California’s consumer 12 protection law, and this Court would likely be more familiar with the law governing those 13 claims. But “it is routine for federal courts to analyze and apply the laws of diverse 14 states.” Saunders v. USAA Life Ins. Co., 71 F. Supp. 3d 1058, 1061 (N.D. Cal. 2014) 15 (finding the familiarity with governing law factor to be neutral despite requiring the 16 application of California state law and potentially breach of contract laws of other states). 17 And while a court is more familiar with the laws of the state in which it sits than an out-of- 18 state court, this fact tends to matters little in a nationwide class action that requires the 19 application of many states’ laws. Mazza v. Am. Honda Motor Co., 666 F.3d 581, 594 (9th 20 Cir. 2012) (“[E]ach class member’s consumer protection claim should be governed by the 21 consumer protection laws of the jurisdiction in which the transaction took place.”). Thus, 22 this factor weighs against transfer, but only slightly. 23 24 e. Local Interest in the Controversy New Jersey has an interest in regulating its corporation’s business practices and 25 ensuring the state’s economic vitality, but California has as much of an interest in 26 protecting its residents, especially when a majority of the claims are brought under 27 California law. See, e.g., Epic Games, 2020 WL 376573, at *9; Imran, 2019 WL 1509180, 28 at *6. Thus, many courts in this district have found the local interest factor to be neutral in 10 Case 5:20-cv-00102-NC Document 46 Filed 06/29/20 Page 11 of 12 1 class actions in which a California plaintiff sues an out–of–state corporation for conduct 2 that impacted California consumers. See, e.g, Epic Games, 2020 WL 376573, at *9; 3 Imran, 2019 WL 1509180, at *6; Fleming v. Matco Tools Corp., 384 F. Supp. 3d 1124, 4 1136 (N.D. Cal. 2019); Lax v. Toyota Motor Corp., 65 F. Supp. 3d 772, 781 (N.D. Cal. 5 2014) (assessing transferring districts within the same state). Defendants provide no 6 persuasive argument for why New Jersey’s interest here is substantially greater than 7 California’s. Accordingly, this factor is neutral. 8 United States District Court Northern District of California 9 f. Contacts Related to the Action Defendants contend that this factor weighs in favor of transfer because the crux of 10 the alleged wrongful conduct, i.e. their decision to label the Coppertone sunscreen 11 products as “mineral based” and the formulation of the products, occurred in New Jersey. 12 See Dkt. No. 25 at 16. By contrast, Defendants argue, the only connection between this 13 lawsuit and this forum is the sale of the Coppertone products to California consumers. 14 The Court is not persuaded for two reasons. First, contrary to their argument, 15 Defendants have not in fact established that the District of New Jersey is the “locus of 16 material events.” Defendants rely solely on Fleckney’s declaration for the proposition that 17 “[t]he formulation information and responsibilities for the Products and decisions about 18 their labeling are located and occur in New Jersey.” Id. at 17. But Fleckney’s declaration 19 is not so clear—he stated that “[a]ll . . . employees who work on the formulation or 20 labeling of the Sunscreen Products work in offices located in either New Jersey or 21 Connecticut.” Fleckney Decl. ¶ 18 (emphasis added). Fleckney also stated that the 22 creative agencies used in Defendants’ labeling decisions were located in Georgia, 23 Kentucky, Virginia, and New York. Id. ¶ 19. Put simply, the record before the Court does 24 not suggest that any single forum, much less New Jersey, was the supposed “locus of 25 material events.” 26 Second, even if the formulation and labeling decisions were primarily made in New 27 Jersey, Plaintiffs’ reliance on Defendants’ alleged misrepresentations and the resulting 28 harm occurred in California. While some courts have discounted similar connections in 11 Case 5:20-cv-00102-NC Document 46 Filed 06/29/20 Page 12 of 12 1 their analysis (see, e.g., Hawkins v. Gerber Products Co., 924 F. Supp. 2d 1208, 1216–17 2 (S.D. Cal. 2013)), other courts nonetheless find them relevant to the analysis (see, e.g., 3 Rafton, 2010 WL 2629579, at *3). The Court is more persuaded by the latter line of cases 4 especially where, as here, the record before the Court does not conclusively suggest that 5 Defendants’ actions took place in the transferee forum. In short, this factor weighs against 6 transfer. United States District Court Northern District of California 7 g. Balancing of Factors 8 To succeed on this motion, Defendants must show that the District of New Jersey is 9 a more convenient forum and not simply equally convenient or inconvenient. Epic Games, 10 Inc., 2020 WL 376573, at *8 (quoting Van Dusen, 376 U.S. at 646). Thus, transfer 11 “should not be granted if the effect is simply to shift the inconvenience to the plaintiff.” 12 Id. (internal quotation marks omitted) (citing Decker Coal Co. v. Commonwealth Edison 13 Co., 805 F.2d 834, 843 (9th Cir. 1986)). 14 Here, the plaintiffs’ choice of forum, the forum’s familiarity with governing law, 15 and the contacts between the action and the forum all weigh against transfer. The 16 convenience factor weighs in favor of transfer, but only slightly. The remaining factors are 17 neutral. Thus, on balance, the Court concludes that Defendants have not established that 18 the District of New Jersey is a more convenient forum than the Northern District of 19 California. Accordingly, the Court DENIES Defendants’ motion to transfer venue. 20 IV. Conclusion 21 The Court DENIES Defendants’ motion to dismiss for lack of personal jurisdiction. 22 The Court also DENIES Defendants’ motion to transfer venue. Defendants do not need to 23 file an answer to the original complaint because they have already moved to dismiss the 24 First Amended Complaint at Dkt. No. 36. 25 IT IS SO ORDERED. 26 27 28 Dated: June 29, 2020 _____________________________________ NATHANAEL M. COUSINS United States Magistrate Judge 12
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