Debra Avrin v. Mentor Worldwide LLC ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SOUTHERN DIVISION 11 ) Case No.: SACV 23-02278-CJC (ADSx) DEBRA AVRIN and LYNN MURPHY, ) 12 ) ) 13 Plaintiff, ) ORDER TO SHOW CAUSE WHY ) THIS CASE SHOULD NOT BE 14 v. ) TRANSFERRED TO THE DISTRICT ) OF COLORADO OR THE DISTRICT 15 ) OF NEW JERSEY MENTOR WORLDWIDE LLC, ) 16 ) ) 17 ) Defendant. ) 18 ) 19 20 In this case, Plaintiffs Debra Avrin and her husband Lynn Murphy allege 21 Defendant Mentor Worldwide LLC’s MemoryGel textured breast implants caused Avrin 22 to develop Breast Implant Associated Anaplastic Large Cell Lymphoma (“BIA-ALCL”). 23 (Dkts. 1-2–1-3 [Complaint, hereinafter “Compl.”].) Plaintiffs allege Defendant 24 concealed the risk of BIA-ALCL associated with its textured breast implants, and assert 25 claims for (1) strict product liability – manufacturing defect, (2) breach of implied 26 warranty, (3) strict liability – failure to warn, (4) negligence per se, and (5) loss of 27 consortium. (Id. ¶¶ 43, 218–290.) 1 Plaintiffs are Colorado residents. (Compl. ¶¶ 6–7.) Defendant is a limited liability 2 company organized and existing under Delaware law. (Dkt. 1 ¶ 13.) A limited liability 3 company “is a citizen of every state of which its owners/members are citizens.” Johnson 4 v. Columbia Props Anchorage, L.P., 437 F.3d 894, 899 (9th Cir. 2006). Defendant’s sole 5 member, Ethicon, Inc., is a corporation organized and existing under the laws of the State 6 of New Jersey with its principal place of business in New Jersey. (Dkt. 1 ¶ 13.) 7 8 In general, venue is proper in any district where “any defendant resides, if all 9 defendants are residents of the State in which the district is located” or where “a 10 substantial part of the events or omissions giving rise to the claim occurred, or a 11 substantial part of property that is the subject of the action is situated.” 28 U.S.C. § 1391 12 (b)(1)–(2). Plaintiffs filed this case in California on the apparently mistaken belief that 13 Defendant’s principal place of business and headquarters are in California. (Compl. ¶¶ 8, 14 17, 20.) But in fact, it does not appear that California has any connection to the parties or 15 this case at all. 16 17 When a party files a case in an improper venue, the court “shall dismiss” the 18 action, “or if it be in the interest of justice, transfer such case to any district or division in 19 which it could have been brought.” 28 U.S.C. § 1406(a). In addition, “[f]or the 20 convenience of parties and witnesses, in the interest of justice, a district court may 21 transfer any civil action to any other district or division where it might have been 22 brought.” 28 U.S.C. § 1404(a). Courts may transfer cases under Section 1404(a) 23 sua sponte, “so long as the parties are first given the opportunity to present their views on 24 the issue.” Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986). To determine 25 whether convenience and the interests of justice favor transfer, courts consider factors 26 including (1) the location where relevant agreements were negotiated and executed, 27 (2) the state most familiar with the governing law, (3) the plaintiff’s choice of forum, 1 the chosen forum, (6) the litigation cost differences in the two forums, (7) the availability 2 of compulsory process to compel attendance of unwilling non-party witnesses, and 3 (8) the ease of access to sources of proof. Jones v. GNC Franchising, Inc., 211 F.3d 495, 4 498–99 (9th Cir. 2000). Courts have broad discretion to decide motions to transfer with 5 individualized, case-by-case consideration, Jones, 211 F.3d at 498, and must undertake a 6 “flexible and individualized analysis” of relevant factors, Stewart Org., Inc. v. Ricoh 7 Corp., 487 U.S. 22, 29 (1988). 8 9 It appears to the Court that venue is not proper in this district and that the interests 10 of justice require transfer of this case to either the District of Colorado or the District of 11 New Jersey. See Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986) (affirming 12 dismissal after district court sua sponte raised issue of improper venue). The first factor, 13 the location where relevant agreements were negotiated and executed, does not apply 14 here because there are no agreements relevant to the parties’ dispute. The second and 15 third factors, the state most familiar with the governing law and the plaintiff’s choice of 16 forum, are neutral because Plaintiffs appear to have chosen to sue in California and base 17 their claims on California law on the mistaken belief that Defendant is headquartered in 18 California. Moreover, courts give a plaintiff’s choice of forum “considerably less 19 weight” when, as here, the plaintiff does not reside in the selected forum and the forum 20 lacks any significant contact with the defendant’s challenged conduct. See Vu v. Ortho- 21 McNeil Pharma., Inc., 602 F. Supp. 2d 1151, 1156 (N.D. Cal. Mar. 9, 2009); Arcona, Inc. 22 v. Farmacy Beauty, LLC, 2018 WL 1441155, at *8 (C.D. Cal. Mar. 22, 2018) (explaining 23 that it is “particularly true” that a plaintiff’s choice of venue is accorded deference “when 24 the plaintiff chooses to litigate in their home forum”); Sweet-Reddy v. Vons Companies 25 Inc., 2007 WL 841792, at *2 (N.D. Cal. Mar. 20, 2007) (“Additionally, if the plaintiff’s 26 forum lacks any significant contact with the activities alleged in the complaint, the 27 plaintiff’s choice of forum will be given considerably less weight.”); Signal IP, Inc. v. 1 deference to the plaintiff's choice of forum may be lessened when “the chosen forum 2 || lacks a significant connection to the activities alleged in the complaint’). 3 4 The fourth and fifth factors, the parties’ contacts with the forum and the contacts 5 ||relating to the plaintiff's claim in the chosen forum, weigh strongly in favor of transfer, 6 the parties appear to have no contacts with California relevant to this dispute. The 7 || sixth factor is neutral, as there are not likely significant cost differences between 8 || litigating a case in California versus in Colorado or New Jersey. The seventh and eighth 9 || factors, the availability of compulsory process and the ease of access to sources of proof, 10 weigh heavily in favor of transfer, as there appear to be no relevant witnesses or 11 ||sources of proof located in California. “Finally, given that the action has no real relation 12 this forum, it would be unfair to impose jury duty on the citizens here.” Megtech, Inc. 13 Edible Arrangements, LLC, 2010 WL 11512215, at *5 (C.D. Cal. Jan. 11, 2010). 14 15 Accordingly, the Court ORDERS the parties to show cause in writing by 16 || February 21, 2024 why this case should not be transferred. In their briefing, the parties 17 should also address the appropriate district for transfer of the case. The February 12, 18 2024 hearing on Defendant’s motion to dismiss Plaintiffs’ Complaint (Dkt. 10) is 19 || VACATED. The Court will recalendar the hearing on Defendant’s motion to dismiss if 20 || the case is not transferred. 21 » DATED: _ February 7, 2024 gre ft 23 of OTS 24 CORMAC J. CARNEY 25 UNITED STATES DISTRICT JUDGE 26 27 28