Kabasele v. Ulta Salon, Cosmetics & Fragrance, Inc. ( 2021 )

1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 DORCAS-COTHY KABASELE, Case No. 21-cv-07458-MMC 8 Plaintiff, ORDER DENYING DEFENDANT ULTA 9 v. SALON, COSMETICS & FRAGRANCE, INC.'S MOTION TO 10 ULTA SALON, COSMETICS & TRANSFER; VACATING HEARING FRAGRANCE, INC., et al., 11 Defendants. 12 13 Before the Court is defendant Ulta Salon, Cosmetics & Fragrance, Inc.'s ("Ulta") 14 Motion to Transfer, filed November 3, 2021. Plaintiff Dorcas-Cothy Kabasele 15 ("Kabasele") has filed opposition, to which Ulta has replied. Having read and considered 16 the papers filed in support of and in opposition to the motion, the Court deems the matter 17 appropriate for determination on the parties' respective written submissions, VACATES 18 the hearing scheduled for December 10, 2021, and rules as follows. 19 By the instant motion, Ulta seeks an order transferring the above-tilted action to 20 the Eastern District of California, in light of the pendency therein of another action filed by 21 Kabasele against Ulta, titled Kabasele v. Ulta Salon, Cosmetics & Fragrance, Inc., Case 22 No. 2:21-CV-01639- WBS-CKD. 23 At the outset, Ulta relies on the "first-to-file" rule. The "first-to-file" rule "may be 24 invoked when a complaint involving the same parties and issues has already been filed in 25 another district." See Alltrade, Inc. v. Uniweld Products, Inc., 946 F.2d 622, 625 (9th Cir. 26 1991) (internal quotation and citation omitted). Where the rule is applicable, the district 27 court in which the second action was filed may "transfer, stay, or dismiss" the second 1 Here, Kabasele and Ulta are parties in both actions, and Kabasele filed her 2 Eastern District action on September 10, 2021 (see Def.s' Req. for Judicial Notice Ex. A 3 at 1),1 fourteen days before she filed the instant action. Nonetheless, the Court finds 4 transfer is unwarranted, as the two actions do not raise "substantially similar" issues. 5 See Kohn Law Group, Inc. v. Auto Parts Mfg. Mississippi, Inc., 787 F.3d 1237, 1240-41 6 (9th Cir. 2015) (holding, for purposes of first-to-file rule, two actions are "substantially 7 similar" where issues presented in second action "substantially overlap" with issues 8 presented in first action). 9 In particular, in the action pending in the Eastern District, Kabasele challenges 10 Ulta's alleged "uniform policy and practice," applicable to all "non-exempt California 11 employees," of "fail[ing] to include commissions, non-discretionary bonuses and other 12 items of compensation when determining . . . non-exempt employees' regular rate of pay" 13 (see Def.'s Req. for Judicial Notice Ex. B ¶ 19), as well as Ulta's alleged failure to provide 14 "compliant meal and rest breaks" to its "non-exempt California [employees]" (see id. Ex. 15 B ¶ 24, see also id. Ex. B ¶¶ 20-23). In the instant action, by contrast, Kabasele alleges 16 that, during the course of her employment with Ulta in a store located in the Northern 17 District (see Compl. ¶ 9), her supervisor made "racially offensive comments" to her (see 18 Compl. ¶¶ 17, 19-21), and that, after Kabasele "complained" about the supervisor's 19 actions (see Compl. ¶ 22), Kabasele was "terminated" in "retaliation for [her] complaints" 20 (see Compl. ¶¶ 29), issues that Ulta fails to show overlap in any manner, let alone to a 21 substantial extent, with the action pending in the Eastern District. 22 Next, Ulta argues transfer is warranted for "'the convenience of parties and 23 witnesses'" (see Def.'s Mot. at 6:19-21 (citing 28 U.S.C. § 1404(a)). The Court, however, 24 finds Ulta has not made a "strong showing of inconvenience." See Decker Coal Co. v. 25 26 1 Ulta's unopposed request that the Court take judicial notice of filings in the Eastern District action is hereby GRANTED. See Lee v. City of Los Angeles, 250 F.3d 27 668, 689 (9th Cir. 2001) (holding "court may take judicial notice of matters of public 1 Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986) (holding party seeking 2 || transfer has burden of making requisite showing). Indeed, other than noting that 3 || Kalabese resides in Oregon and that her attorney's offices are located in the Eastern 4 || District, which, Ulta argues, show it would be convenient for Kalabese to litigate the 5 || instant action in the Eastern District,” Ulta fails to address the factors relevant to a 6 || transfer for convenience. See id. (listing factors). For example, Ulta fails to show that 7 || any events giving rise to Kalabese's harassment and retaliation claims occurred in the 8 || Eastern District, see, e.g., Vu v. Ortho-McNeil Pharm., Inc., 602 F. Supp. 2d 1151, 1157 Q |} (N.D. Cal. 2009) (transferring action to Central District of California, where, inter alia, "the 10 || events giving rise to plaintiffs' claims occurred in the Central District"), nor has Ulta 11 identified any witnesses, let alone made any showing that, given the location of such 12 || witnesses, they would be inconvenienced were the instant action tried in the Northern £2 13 || District, see Carolina Cas. Co. v. Data Broad. Corp., 158 F. Supp. 2d 1044, 1049 (N.D. © 14 || Cal. 2001) (noting, “[t]o demonstrate inconvenience of witnesses, the moving party must Oo 8 15 || identify relevant witnesses, state their location[,] and describe their testimony and its QO 16 || relevance’). Cc 2 17 Accordingly, Ulta's motion to transfer is hereby DENIED. 18 IT IS SO ORDERED. 19 20 || Dated: December 7, 2021 . MAXINE M. CHESNEY 21 United States District Judge 22 23 24 29 ? Ulta also argues Kalabese's choice of forum is not entitled to deference because she does not live in the Northern District. The alleged harassment and retaliatory acts, 26 es however, are alleged to have occurred in this District, and, consequently, Kalabese's 27 || choice of forum is entitled to deference. Cf. Pacific Car & Foundry Co. v. Pence, 403 F.2d 949, 954 (9th Cir. 1968) (affording only "minimal consideration” to plaintiff's choice 28 of forum where "operative facts [had] not occurred within the forum of original selection").