Opinion
For Robert Valenzuela, an individual, Plaintiff: Nassir N Ebrahimian, Sarah Elizabeth Truesdell Shipitsyn, LEAD ATTORNEYS, Jazmine Peetz, Vincent Charles Granberry, Lavi and Ebrahimian LLP, Beverly Hills, CA.
For Sol Group Marketing Company, a Florida Corporation, Defendant: Paul S Marks, LEAD ATTORNEY, Yuriko M Shikai, Neufeld Marks APC, Los Angeles, CA; Daniel M Hirschman, Timothy D Henkel, PRO HAC VICE, Henkel and Cohen PA, Miami, FL.
MANUEL L. REAL, UNITED STATES DISTRICT JUDGE.
ORDER GRANTING DEFENDANT SOL GROUP MARKETING COMPANY'S MOTION TO TRANSFER VENUE UNDER 28 U.S.C. § 1404(a) AND Fed.R.Civ.P. 12(b)(3); DENYING ITS OTHER TWO REQUESTS AS MOOT; AND DISMISSING THE CLAIMS AGAINST DEFENDANT FYFFES, PLC UNDER Fed.R.Civ.P. 4(m)
Before the Court is Defendant Sol Group Marketing Company's motion to transfer this action to the U.S. District Court for the Southern District of Florida under Title 28 U.S.C. § 1404(a) and Federal Rule of Civil Procedure 12(b)(3); to dismiss under the doctrine of forum non conveniens in light of pending litigation between the parties in the Circuit Court of Broward County, Florida; and to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim for relief. Finding the matters suitable for decision on the papers, the Court took them under submission on January 26, 2015. For the reasons explained below, the Court hereby grants the motion to transfer this action to the U.S. District Court for the Southern District of Florida under Title 28 U.S.C. § 1404(a) and Federal Rule of Civil Procedure 12(b)(3), denies its other two requests as moot, and dismisses the claims against Defendant Fyffes, plc under Federal Rule of Civil Procedure 4(m).
In September 2002, Plaintiff Robert Valenzuela (" Plaintiff") began working in Pompano Beach, Florida as a seller of produce for Defendant Sol Group Marketing Company (" Sol"), which is incorporated in Florida and has its principal place of business in the state. Dkt. # 1-3, Cpt. ¶ 16; Dkt. # 17-6, Nir Dec. ¶ 5; Dkt. # 20-2, Ptf. Dec. ¶ 2. While Plaintiff was employed in Florida, Sol employees Orna Nir, Emily Guzi, and Cora Rodriguez noticed alleged problems with the quality of his work. Nir Dec. ¶ ¶ 13, 17. On December 1, 2011, Plaintiff voluntarily transferred to Sol's new Los Angeles, California office to work in " West Coast Sales." Cpt. ¶ 18; Ptf. Dec. ¶ ¶ 3, 8. Rafael Nir (at the time the president of Sol) advised him that the transfer would be permanent. Ptf. Dec. ¶ 4. Accordingly, Plaintiff relocated to California, leased an apartment in Los Angeles, and banked, paid taxes, and bought property in the state. Id. ¶ ¶ 5-6, 10. Plaintiff's supervisors, Enda Walsh (Sol's vice president) and Mario Cardenas (its manager), visited the California location approximately 1-2 times per month during the busy season. Id. ¶ 9. Plaintiff was paid by Sol's payroll company, Defendant Trinet HR Corporation (" Trinet"), which is incorporated in California and registered to do business in Florida. Dkt. # 22-1, Hirschman Supp. Dec. ¶ 4 & Ex. A.
Plaintiff asserts that Trinet " consulted with Sol regarding discipline and termination of its employees." Dkt. # 21 at 3 (citing Dkt. # 17-3, Graupera Dec. ¶ 5, Ex. A). Upon review, the Graupera declaration and attached paystubs neither address " consulting, " nor offer any reason to believe that Trinet, a payroll company, " consulted with Sol regarding discipline and termination."
In the summer of 2012, Plaintiff developed a disability in his knee. Ptf. Dec. ¶ 11. In August 2012, he visited two physicians in Los Angeles and learned that he required knee replacement. Id. ¶ 12. On August 24, 2012, Plaintiff told Nir that he would need medical leave beginning on September 9, 2012 for knee replacement surgery, recovery, and physical therapy. Cpt. ¶ 20; Ptf. Dec. ¶ ¶ 13-14. Further, he informed Sol that he would have the surgery in Arizona so that his mother, who lived in Arizona, could care for him, and that after he healed, he would return to California. Ptf. Dec. ¶ 15. Plaintiff had the surgery and physical therapy in Arizona and later returned to Los Angeles. Id. ¶ ¶ 16-17. While Plaintiff was still on medical leave, Sol requested that he travel to Phoenix, Arizona for a meeting with a client on October 10, 2012. Id. ¶ 18. Then, after receiving alleged complaints about Plaintiff from the client's buyer and his supervisor, Nir, Walsh, and Cardenas had a meeting in Florida and made the decision to let Plaintiff go. Dkt. # 17-1, Cardenas Dec. ¶ ¶ 13-14; Dkt. # 17-5, Walsh Dec. ¶ 10; Nir Dec. ¶ 25. Thus, before Plaintiff could meet with the client on October 10, 2012, Walsh and Cardenas met with Plaintiff in Arizona, and Walsh terminated his employment. Id. at 19.
Sol avers that when Plaintiff gave notice of his upcoming surgery, he " was living at and working for Sol from his Arizona domicile." Dkt. # 17 at 6-7 (citing Cardenas Dec. ¶ ¶ 6, 11; Graupera Dec. ¶ 5; Walsh Dec. ¶ 9. In fact, Graupera only discusses payments to Plaintiff in Arizona starting October 15, 2012. Cardenas and Walsh merely speculate that " [i]t was [their] understanding" that Plaintiff started working from his home in Arizona in the summer of 2012.
Plaintiff contends that Sol fired him because of his disability and requests for accommodation. He brings seven claims for: (1) disparate treatment in violation of Cal. Gov't Code § 12940(a) of the California Fair Employment and Housing Act (" FEHA"); (2) failure to provide a reasonable accommodation in violation of § 12940(m) of the FEHA; (3) failure to engage in the interactive process in violation of § 12940 (n) of the FEHA; (4) retaliation for requests for disability accommodation in violation of the FEHA; (5) violation of Cal. Gov't Code § 12945.1 of the California Family Rights Act (" CFRA"); (6) retaliation in violation of § 12945.2(l) of the CFRA; and (7) wrongful termination in violation of public policy based upon the exercise of his CFRA rights. In addition to Sol and Trinet, Plaintiff sues four other Defendants. Of the four, Sol Group Corp. and Sol Group Marketing Co. SM are fictitious entities. Dkt. #1, Not. of Rem. ¶ 8. Fyffes Inc. (the immediate shareholder of Sol) is incorporated and has an office in Florida. Id.; Hirschman Supp. Dec. ¶ 5 & Ex. B. Fyffes, plc (the indirect, beneficial owner of Sol and Fyffes Inc.) is an Irish public company with its principal place of business in Ireland. Not. of Rem. ¶ 8; Dkt. # 3, Cert. of Int. Part.
On October 1, 2014, Plaintiff filed this action in the Superior Court of Los Angeles County, California. Cpt. On October 23, 2014, Sol filed a separate action concerning the termination of Plaintiff's employment in the Circuit Court of Broward County, Florida. Dkt. # 20-1, Peetz Dec. ¶ ¶ 13-14 & Ex. C. On November 17, 2014, Plaintiff voluntarily dismissed his claims against Trinet. Not of Rem. ¶ 4. On December 10, 2014, Sol removed this action to federal court under Title 28 U.S.C. § § 1332(a)(1) and 1441(a) based on the parties' complete diversity of citizenship. Id. ¶ 8. At some point between before December 31, 2014, Plaintiff filed a motion to transfer the Florida case to California. Dkt. # 21, Opp. at 21. On December 31, 2014, Sol filed this motion to dismiss or transfer the California case to Florida. Mtn. In its motion, Sol noted that Plaintiff was " less than two weeks away from this Court, on its own motion, being able to dismiss Fyffes, plc for failure to timely effectuate service within 120 days per Fed.R.Civ.P. 4(m)." Id. at 11. However, as of January 29, 2015, Plaintiff has still not effected service of process on Fyffes, plc. Dkt. # 14. Thus, the Court hereby dismisses Plaintiff's claims against Fyffes, plc under Rule 4(m) and turns to Sol's transfer motion.
" For the convenience of 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." Title 28 U.S.C. § 1404(a). In exercising its discretion, the court may weigh such factors as: " (1) the location where the relevant agreements were negotiated and executed, (2) the state that is most familiar with the governing law, (3) the plaintiff's choice of forum, (4) the respective parties' contacts with the forum, (5) the contacts relating to the plaintiff's cause of action in the chosen forum, (6) the differences in the costs of litigation in the two forums, (7) the availability of compulsory process to compel attendance of unwilling non-party witnesses, and (8) the ease of access to sources of proof." Jones v. GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 2000). The court may also conser the " public policy of the forum state." Id. at 499. Public interest factors include the relative congestion of the two courts, the local interest in deciding a local controversy, the conflict of law, and the burden of jury duty on citizens in an unrelated forum. Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986). The party seeking transfer under § 1404(a) generally bears the burden to show that the proposed forum is more convenient and serves the interest of justice. Jones, 211 F.3d at 499.
Plaintiff could have brought this action in the Southern District of Florida. See Title 28 U.S.C. § 1404(a). " A civil action may be brought in ... a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located[.]" Title 28 U.S.C. § 1391(b)(1). Plaintiff does not dispute that Sol, Sol Group Corp., Sol Group Marketing Co. SM, and Fyffes Inc. are Florida residents. See Opp. at 7. Although Plaintiff asserts that Trinet is a California, not a Florida, corporation, Trinet is subject to personal jurisdiction in Florida because it is registered to do business in the state. Hirschman Supp. Dec. ¶ 4 & Ex. A. Thus, pursuant to Title 28 U.S.C. § 1391(c)(2), Trinet is considered a Florida resident. Further, while Plaintiff avers that Fyffes, plc is Irish and not Floridian, the Court finds that Fyffes, plc (on which Plaintiff failed to even serve process) is a sham defendant because the Complaint is devoid of any factual basis for establishing personal jurisdiction and piercing multiple subsidiaries' corporate veils to reach this entity. The fraudulent joinder of a sham defendant that does not reside in the forum is not enough to overcome the diversity of Plaintiff and the remaining five Defendants. See Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998).
On balance, the Jones factors weigh in favor of transfer to the Southern District of Florida. As the parties do not allege the existence of a relevant agreement concerning this action, and do not argue that the expense of litigation is greater or that process for compelling the attendance of unwilling non-party witnesses is unavailable in California or Florida, the first, sixth, and seventh factors do not favor any party. Further, although each party argues that the law of its chosen state controls the resolution of this controversy, the only body of law that clearly governs is California's choice-of-law rules, which apply both if the Court keeps the case here and if it transfers the case to the Southern District of Florida. See Arno v. Club Med, Inc., 22 F.3d 1464, 1467 (9th Cir. 1994) (federal court sitting in diversity applies the choice-of-law rules of the forum state); Muldoon v. Tropitone Furniture Co., 1 F.3d 964, 965 (9th Cir. 1993) (citing Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964)) (§ 1404(a) transferee court applies the choice-of-law rules of the transferor court). Because this Court is more familiar with California's choice-of-law rules than a court in Florida, the second factor counsels against transfer. See Costco Wholesale Corp. v. Liberty Mut. Ins. Co., 472 F.Supp.2d 1183, 1191 (S.D. Cal. 2007).
While Plaintiff's choice of forum ordinarily merits great deference, the Court does not defer to his choice because he does not plead that he resides in California. See Cochran v. NYP Holdings, Inc., 58 F.Supp.2d 1113, 1119 (C.D. Cal. 1998). The Complaint states neither where Plaintiff currently resides, nor where he resided when he filed this action on October 1, 2014. It states only that Plaintiff was a resident of Los Angeles between December 1, 2011 and October 10, 2012. Cpt. ¶ ¶ 4-5. In his declaration, Plaintiff indicates that after his termination, he returned to California for " some time" before he took a temporary consulting job in Broward County, Florida. Ptf. Dec. ¶ ¶ 20-22. Indeed, when Sol sued Plaintiff in late October 2014, it served him in Florida, where he was working for Ayco Farms, a Florida company. Dkt. # 17-1, Hirschman Dec. ¶ ¶ 4-5 & Ex. A-D. In response, Plaintiff asserts that he does not own or lease a residence in Florida and has " no intention of permanently residing" there. Ptf. Dec. ¶ ¶ 22-23. He avers that: " After my temporary consulting job in Florida ends, I plan on returning to my home in Arizona where I reside . I then plan on returning to California in approximately April or May 2015." Id. ¶ 24 (emphasis added). None of these vague pleadings show that Plaintiff now resides in California, or that he did so when he filed the Complaint.
Other Jones factors support transfer. Plaintiff has no current links to California: he resides in Arizona and works in Florida. Sol (the sole Defendant served with process that has not been dismissed) is more closely tied to Florida than California: Sol has its principal place of business in Florida and merely does business in California. Further, Plaintiff was employed for nine years and allegedly began exhibiting performance deficiencies in Florida, was transferred for the eleven months preceding his termination and purportedly had further performance failures in California, and received his surgery and post-surgery physical therapy in Arizona. Given that crucial events bearing on this case cross multiple state lines, all three states have some interest in applying their law to the facts and in adjudicating the controversy between the parties. However, the trial will likely be speedier in Florida than California because this District has approximately twice as many civil filings, twice as many open cases, and five times more pending cases over three years old as the Southern District of Florida, and because the time to dispose of a case is approximately one month longer and the time to take a case from complaint to trial is about five months longer in this District. Dkt. # 17-1, Hirschman Dec. ¶ ¶ 14-15 & Ex. E-F.
The convenience of witnesses, which is " often recognized as the most important factor, " also favors transfer. Metz v. United States Life Ins. Co., 674 F.Supp.2d 1141, 1147 (C.D. Cal. 2009). Enda Walsh, Mario Cardenas, and Rafael Nir (managers who attended the Florida meeting concerning the decision to terminate Plaintiff's employment); Ruby Graupera-Cassimiro (the human resources manager who processed his records); Orna Nir, Emily Guzi, and Cora Rodriguez (coworkers in Florida who observed his performance); and Juan Pablo Lopez (a coworker in California) all reside in Florida. Nir Dec. ¶ ¶ 1, 13, 17; Walsh Dec. ¶ ¶ 1, 8; Graupera Dec. ¶ ¶ 1, 8. Dr. Todd Hang and Dr. Gail Nalls (the two doctors who first recommended knee replacement) and Lorrain Cervantes (a coworker in California) reside in California. However, their testimony has little import because the parties agree that Plaintiff had a disability and needed medical treatment, because they will depose his Arizona surgeon and physical therapist on his need for accommodation, and because Cervantes left Sol in March 2012, only worked with Plaintiff for four months, and did not witness his performance in the seven months prior to his termination. Walsh Dec. ¶ 8. Finally, the buyer and supervisor who complained about Plaintiff are located in Arizona. Dkt. # 22-2, Cardenas Supp. Dec. ¶ 3.
Plaintiff asserts that these witnesses are located in California. Opp. at 12 (citing Walsh Dec. ¶ ¶ 13, 17; Cardenas Dec. ¶ ¶ 12-13). However, neither declarant makes the claim that the witnesses are located in the state.
Finally, Plaintiff's documents are located in three states: Plaintiff's employment records are in Florida, the records of his consultations are in California, and the records of his surgery and physical therapy are in Arizona. Graupera Dec. ¶ 4; Peetz Dec. ¶ 10; Ptf. Dec. ¶ 12. In any event, the Court does not consider the location of documents particularly relevant because, assuming they are not already stored electronically, the parties present no evidence that " transporting records or reducing them to electronic form would cause [them] significant hardship." Van Slyke v. Capital One Bank, 503 F.Supp.2d 1353, 1362 (N.D. Cal. 2007).
In sum, Plaintiff could have brought the action in the Southern District of Florida, and the Jones factors and public policy both favor transfer to Florida. Thus, the Court grants Sol's motion to transfer this action to the U.S. District Court for the Southern District of Florida under Title 28 U.S.C. § 1404(a) and Federal Rule of Civil Procedure 12(b)(3). Accordingly, the Court need not reach the remaining defense requests to dismiss under the doctrine of forum non conveniens and Federal Rule of Civil Procedure 12(b)(6).
IT IS HEREBY ORDERED that, on the Court's own motion, Plaintiff's claims against Defendant Fyffes, plc are DISMISSED under Federal Rule of Civil Procedure 4(m) for failure to effect service of process within 120 days of filing the Complaint. Further, Defendant Sol Group Marketing Company's motion to transfer this action to the U.S. District Court for the Southern District of Florida under Title 28 U.S.C. § 1404(a) and Federal Rule of Civil Procedure 12(b)(3) is GRANTED, and its other two requests are DENIED as moot.