Glass v. S & M Nutec, LLC

• Decision Date: 11 October 2006
• Docket Number: No. 06 Civ. 1534(WCC).,06 Civ. 1534(WCC).
• Citation: 456 F.Supp.2d 498
• Parties: Josh GLASS, Judy J. Clark, Lydia Scharf, Gene Dubretskoy, Fern Finer, Cheryl Stubbs, Wayne Amedure, Robert Magoon, Mark Judson and Anthony Cotellese, Individually, and on behalf of all others similarly situated, Plaintiffs, v. S & M NUTEC, LLC, Defendant.
• Court: U.S. District Court — Southern District of New York

456 F.Supp.2d 498

Josh GLASS, Judy J. Clark, Lydia Scharf, Gene Dubretskoy, Fern Finer, Cheryl Stubbs, Wayne Amedure, Robert Magoon, Mark Judson and Anthony Cotellese, Individually, and on behalf of all others similarly situated, Plaintiffs, v. S & M NUTEC, LLC, Defendant.

No. 06 Civ. 1534(WCC).

United States District Court, S.D. New York.

October 11, 2006.

Abbey Spanier Rodd Abrams & Paradis, LLP (Arthur N. Abbey, Stephen T. Rodd, Joshua N. Rubin, Rebecca A. Sheinberg, of counsel), McLaughlin & Stern, LLP ( Steven J. Hyman, Alan E. Sash, of counsel), New York City, for Plaintiffs.

Callan, Koster, Brady & Brennan, LLP (Paul F. Callan, Marc R. Wilner, of Counsel), New York City, Shook, Hardy & Bacon, LLP (Laura C. Fey, Tammy B. Webb, Rebecca J. Schwartz, of counsel), Kansas City, MO, for Defendant.

OPINION AND ORDER

WILLIAM C. CONNER, Senior District Judge.

Plaintiffs Josh Glass, Judy J. Clark, Lydia Scharf, Gene Dubretskoy, Fern Finer, Cheryl Stubbs, Wayne Amedure, Robert Magoon, Mark Judson and Anthony Cotellese (collectively "plaintiffs"), bring this putative class action, seeking damages on behalf of themselves and other similarly situated purchasers of "Greenies" dog treats, which were manufactured and distributed by defendant S & M NuTec, LLC. Plaintiffs allege that, despite statements on their packaging that they were "100% edible," the Greenies were unfit for consumption and caused intestinal and esophageal blockages leading to the injury or death of their pet dogs. (Complt.¶¶ 6-19, 29.) Specifically, plaintiffs claim that defendant's retention of the Greenies' purchase price constituted unjust enrichment pursuant to the common law of thirty-four states.¹ Furthermore, plaintiffs allege defendant's sale of Greenies violated the Uniform Commercial Code's ("UCC") provisions on implied warranties of merchantability, as adopted by twenty-five different states.² (Id. ¶¶ 51-63.) In addition, named plaintiff Lydia Scharf, on behalf of herself and other similarly situated individuals, alleges that defendant violated OHIO REV.CODE ANN. § 1345.02 by failing to notify purchasers of Greenies' dangerous nature. (Compl.¶¶ 61-71.) This Court's jurisdiction is predicated upon diversity of citizenship, pursuant to 28 U.S.C. § 1332(a)(1). Presently before the Court is defendant's motion, pursuant to 28 U.S.C. § 1404(a), to transfer venue to the United States District Court for the Western District of Missouri. For the reasons that follow, defendant's motion is granted.

BACKGROUND

Greenies are "dog chew treat[s] formulated to control dental tartar and plaque, and formulated to taste great while reducing bad breath," About Greenies, http:// www.greenies.com/aboutUs.cfm. They are made and sold by defendant, a Missouri company with its principal place of business located in North Kansas City, Missouri. Research, development and manufacturing of all of defendant's products, including Greenies, occurs in Kansas City, Missouri and the surrounding area. (Fries Aff. ¶¶ 2-4.) Additionally, all Greenies packaging and promotional materials are generated in and around Kansas City, Missouri, and all Greenies sales are transacted at the corporate headquarters in North Kansas City. (Id. ¶¶ 5-6.) All of defendant's records and employees, who might act as potential witnesses, are located in the Kansas City area. (Id. ¶¶ 5-7.)

Plaintiffs are citizens of eight different states, ranging from California to Massachusetts.³ Although plaintiffs allege that "at least five New York residents want to act as fact witnesses and to be joined as proposed [p]laintiff class representatives in the [c]lass [a]ction" (Pls. Mem. Opp. Transfer at 3), no named plaintiff is a citizen or resident of the state of New York. Plaintiffs anticipate that they will call six expert witnesses located in New York to testify regarding the deleterious health effects of Greenies.

DISCUSSION

Deciding a motion to transfer venue is a two-step process. First, the Court must determine whether the case could originally have been brought in the transferee district. 28 U.S.C. § 1404(a) ("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 division where it might have been brought."). Second, the Court must examine whether transfer is warranted in light of the following factors: (1) the convenience of witnesses; (2) the location of relevant documents and the relative ease of access to sources of proof; (3) the convenience of the parties; (4) the locus of the operative facts.; (5) the availability of process to compel attendance of unwilling witnesses; (6) the relative means of the parties; (7) the forum's familiarity with the governing law; (8) the weight accorded a plaintiffs' choice of forum; and (9) trial efficiency and the interests of justice, based on the totality of the circumstances. See Cerussi v. Union Coll., 144 F.Supp.2d 265, 268 (S.D.N.Y.2001) (Conner, J.). A district court has broad discretion to balance these factors and consider the evidence of convenience and fairness on a case-by-case basis, with the goal of "prevent[ing] the waste of time, energy and money and . . . protect[ing] litigants, witnesses and the public against unnecessary inconvenience and expense." Van Dusen v. Barrack, 376 U.S. 612, 616, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964) (citations and internal quotation marks omitted); Filmline (Cross-Country) Prods., Inc. v. United Artists Corp., 865 F.2d 513, 520 (2d Cir. 1989) ("The determination whether to grant a change of venue requires a balancing of conveniences, which is left to the sound discretion of the district court.").

I. The Action Could Have Been Filed in the Western District of Missouri

Pursuant to 28 U.S.C. § 1391(a)(1), "[a] civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought . . . in . . . a judicial district where any defendant resides, if all defendants reside in the same State . . . ." In the present case, in which jurisdiction clearly is predicated solely upon diversity of citizenship pursuant to 28 U.S.C. § 1332, defendant's company headquarters is located within the Western District of Missouri, and the vast majority of its operations are conducted therein. Accordingly, defendant resides within that district because it is subject to personal jurisdiction therein. See 28 U.S.C. § 1391(c) (detailing residence of business entities)⁴ The action, therefore, could have originally been brought in that district. Accordingly, we now turn our attention to the nine factors for evaluating efficiency and convenience.

II. The "Efficiency and Convenience" Factors

A. Convenience of Witnesses

Although defendant has not named specific witnesses that it expects to be called at trial, its Chief Strategic Officer, Russell Fries, noted that all of the company's employees and potential witnesses were located within the Western District of Missouri. (Fries Aff. ¶¶ 3-7.) Plaintiffs mention six potential veterinary expert witnesses located within this district.⁵ (Pls. Mem. Opp. Transfer at 3.) "However, it is well settled that the location of expert witnesses is irrelevant to a transfer decision." Cerussi, 144 F.Supp.2d at 269. Plaintiffs themselves, however, each of whom presumably would testify at trial, are dispersed throughout the nation. We can discern no reason why their appearance in the Western District of Missouri would be any less convenient than their appearance in this district. This factor, therefore, favors defendant's choice of forum.

B. Convenience of the Parties

As previously stated, defendant, and all of its facilities, are located within the Western District of Missouri. Clearly, therefore, that district is more convenient for defendant. Plaintiffs reside in several different jurisdictions, many of which are located closer to the Western District of Missouri than the Southern District of New York. Additionally, plaintiffs bring this case as a putative class action, on behalf of the "hundreds of thousands of purchasers of Greenies" nationwide. (Complt.¶ 21.) Indeed, the only connection that plaintiffs appear to have with this district is the location of their counsel; not one named plaintiff is a resident of New York.⁶ The location of counsel, however, is not afforded substantial consideration when considering a motion to transfer venue. Fuji Photo Film Co., Ltd. v. Lexar Media, Inc., 415 F.Supp.2d 370, 374 (S.D.N.Y.2006) ("[T]he convenience of counsel is not an appropriate factor to consider on a motion to transfer."). Thus, this factor also favors defendant.

C. Location of Relevant Documents and Relative Ease of Access to Sources of Proof

All evidence, documentary and otherwise, save for the evidence presented by each of the plaintiffs regarding their pets' individual experiences with Greenies, is located within the Western District of Missouri. Although we do not believe that the production of any of the aforementioned evidence in this district would present a significant hardship, defendant clearly would be saved some expense if the trial were conducted closer to its headquarters. Conversely, trial in the Western District of Missouri would put no greater financial burden on plaintiffs, who reside throughout the country and will be forced to travel and transport evidence no matter where the trial is conducted. This factor also weighs slightly in favor of defendant. In re Collins & Aikman Corp. Sec. Litig., 438 F.Supp.2d 392, 396-97 (S.D.N.Y.2006) (stating, in the context of a class action with numerous plaintiffs throughout the country, that, "because it is at least marginally more convenient to conduct this litigation in [defendant's home district,] where most of the relevant documents are located, this factor tips slightly towards transfer.").

D. Locus of Operative Facts

All of the operative documents and sources of proof are located outside...