Shanklin v. Sleep Country USA, Inc., No. 2:2010cv00153 - Document 30 (W.D. Wash. 2010)

Court Description: OPINION AND ORDER: The court grants Defendant's Motion to Dismiss or Stay 10 , and exercises its discretion and transfers this case to the Western District of Washington. This court will defer to the Washington district court to determine whether Shanklin should be dismissed without prejudice. Signed on 1/19/2010 by Magistrate Judge Dennis J. Hubel. (see formal opinion) (kb) [Transferred from ord on 1/26/2010.]

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF OREGON 9 10 ROBERT SHANKLIN, 11 Plaintiff, 12 13 v. SLEEP COUNTRY USA, INC., 14 15 16 17 18 19 Defendant. Donald W. Heyrich Heyrich Kalish McGuigan 1325 Fourth Avenue, Suite 540 Seattle, Washington 98101 Attorney for plaintiff Michael G. McClory Bullard Smith Jernstedt Wilson 1000 S.W. Broadway, Suite 1900 Portland, Oregon 97205 20 21 22 John C. Fox Alexa L. Morgan Manatt Phelps & Phillips 1001 Page Mill Road, Building 2 Palo Alto, California 94304 23 24 25 Alison S. White Manatt Phelps & Phillips One Embarcadero Center, 30th Floor San Francisco, California 94111 Attorneys for defendant 26 /// 27 28 OPINION AND ORDER Page 1 ) ) ) ) ) ) ) ) ) ) Case No. CV 09-1127-HU OPINION AND ORDER 1 HUBEL, Magistrate Judge: 2 This is a putative class action, filed on September 23, 2009, 3 alleging that defendant Sleep Country USA, Inc. (SCUSA) failed to 4 pay 5 commissions owed upon termination. SCUSA moves the court for an 6 order dismissing or staying the action, on the ground that the 7 putative plaintiffs and the claims asserted are substantially 8 similar to, or duplicative of, an earlier-filed action in the 9 Western plaintiff Robert District of Shanklin and Washington, others Patey et similarly al. v. situated The Sleep 10 Train/Sleep Country USA, CV 09-1239. See SCUSA s Request for 11 Judicial Notice, Exhibit 1 (complaint filed in Patey case). 12 The principles of comity allow a district court to decline 13 jurisdiction over an action where a complaint involving the same or 14 substantially similar parties and issues has already been filed in 15 another district. Barapind v. Reno, 225 F.3d 1100, 1109 (9th Cir. 16 2000). Thus, 17 jurisdiction, the court which first acquired jurisdiction should 18 try the case. Pacesetter Systems Inc. v. Medtronic, Inc., 678 F.2d 19 93, 95 (9th Cir. 1982). Application of the first to file rule 20 involves consideration of three factors: 1) chronology; 2) identity 21 of issues; and 3) identity of parties. Id. The district court in 22 which the later action was filed has discretion to transfer, stay 23 or dismiss the second action in the interests of efficiency and 24 judicial economy. Amerisourcebergen Corp. v. Roden, 495 F.3d 1143, 25 1156 (9th Cir. 2007)[Ferguson, J., concurring, citing Cedars-Sinai 26 Med. Ctr. v. Shalala, 125 F.3d 765, 769 (9th Cir. 1997)]. when actions 27 28 OPINION AND ORDER Page 2 are filed in courts of concurrent 1 Shanklin concedes that the first to file rule applies, but 2 asks that the court transfer this case to the Western District of 3 Washington, rather than dismissing the complaint without prejudice 4 or entering a stay. Shanklin argues that the Washington court can 5 better decide whether to consolidate the two actions, stay one of 6 the cases, or dismiss either action. Plaintiff s Response, p. 1-2. 7 Shanklin contends that dismissal could prejudice him by depriving 8 him of his status as a class representative, essentially depriving 9 him of any substantive control over the lawsuit against Sleep 10 Country. Id. at 4. SCUSA responds that Shanklin can maintain 11 control over his own lawsuit by opting out of Patey and pursuing 12 his claims as an individual, thereby eliminating the potential for 13 such prejudice. 14 Shanklin also asserts that he may be prejudiced if this case 15 is dismissed because federal jurisdiction over his claims is based 16 on the Class Action Fairness Act, while jurisdiction in the Patey 17 case is supplemental; thus, if the Patey court declined to exercise 18 supplemental jurisdiction over the Oregon claims, Shanklin would be 19 without a forum for his claims. SCUSA counters that even if the 20 Patey court should decline to exercise jurisdiction over the Oregon 21 claims, Shanklin is free to refile his action, with the applicable 22 statute of limitations having been tolled.1 23 1 27 SCUSA contends that the Patey case is a re-filed version of an earlier suit, Campbell et al. v. Sleep Train/Sleep Country, filed in the Northern District of California on December 24, 2008. SCUSA represents that the Campbell case was dismissed pursuant to an agreement of counsel that the Washington and Oregon plaintiffs would bring their claims in the Western District of Washington, and that the statute of limitations would 28 OPINION AND ORDER Page 3 24 25 26 1 In view of Shanklin s arguments about possible prejudice, 2 this case is transferred to the Western District of Washington. 3 This court will defer to the Washington district court to determine 4 whether Shanklin should be dismissed without prejudice. 5 IT IS SO ORDERED. 6 7 Dated this 19th day of January , 2010. 8 9 /s/ Dennis James Hubel 10 Dennis James Hubel United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 be tolled until September 1, 2009. SCUSA has not proffered admissible evidence on this point, however. 28 OPINION AND ORDER Page 4

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