Lockette v. Ross Stores, Inc. et al

RESPONSE in Support re MOTION to Change Venue Pursuant to 28 U.S.C. Section 1404

N.D. Cal.September 14, 2007

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON TrtWl^owtrt" "t0" 1Z5S Tt«ii Boultvird Suit* 600 Wilnut Cii*k CA 94597 925 932 2468 J. KEVIN LILLY, Bar No. 119981 KEITH A. JACOBY, Bar No. 150233 LITTLER MENDELSON A Professional Corporation 2049 Century Park East, 5th Floor Los Angeles, CA 90067.3107 Telephone: 310.553.0308 Fax No.: 310.553.5583 E-mail:klilly@littler.com kj acoby@littler. com LISA C. CHAGALA, Bar No. 217883 LITTLER MENDELSON A Professional Corporation 1255 Treat Boulevard, Suite 600 Walnut Creek, CA 94597 Telephone: 925.932.2468 Facsimile: 925.946.9809 E-mail: lchagala@littler.com Attorneys for Defendants ROSS STORES, INC.; ROSS DRESS FOR LESS, INC. TORESSA LOCKETTE; an individual; individually and on behalf of all other similarly situated current and former employees, Plaintiff, v. ROSS STORES, INC., a Delaware Corporation, ROSS DRESS FOR LESS, INC., a Virginia Corporation, and DOES 1- 100, Defendants. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA Case No. CV 03430 MMC DEFENDANTS' REPLY BRIEF IN SUPPORT OF MOTION TO CHANGE VENUE PURSUANT TO 28 U.S.C. 1404(A) Date: September 7, 2007 (VACATED) Time: 9:00 a.m. Judge: Hon. Maxine M. Chesney Dept: 7 Complaint filed: June 29,2007 Trial Date: None set DEFENDANTS' REPLY BRIEF IN SUPPORT OF MOTION TO CHANGE VENUE PURSUANT TO 28 (NO. CV 03430 MMC) Case 3:07-cv-03430-MMC Document 27 Filed 09/14/2007 Page 1 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENOELSON TABLE OF CONTENTS PAGE I. INTRODUCTION 1 II. ARGUMENT 1 A. A Change In Venue Is Proper Under Section 1404(a) 1 1. Plaintiff Overlooks The Undisputed Fact That Few, If Any, Putative Class Members Are In California 1 2. The Possible Location of Witnesses In California Is Insufficient to Preclude Transfer 2 a. Transfer Would Place This Lawsuit In The Most Appropriate Forum 5 b. Plaintiffs Speculation About Defendants' Purported Motivation Cannot Obstruct A Change In Venue 5 3. Transferring The Case Will Promote The Interests Of Justice 7 a. Plaintiff Admits Her Choice Of Forum Is Entitled To "Less Weight" 7 b. Importance Of State Law Arbitration Issues Weighs In Favor Of Transfer 9 c. The Relative Congestion Of The Courts Calls For Transfer 10 d. If Arbitration Were Ordered, Arbitration Would Have To Occur In The Inconvenient Forum Of The Northern District Of California 11 B. Plaintiff Did Not Comply With The Local Rules Of The Northern District Of California 12 III. CONCLUSION 12 DEFENDANTS' REPLY BRIEF IN SUPPORT OF MOTION TO CHANGE VENUE PURSUANT TO 28 (NO. CV 03430 MMC) Case 3:07-cv-03430-MMC Document 27 Filed 09/14/2007 Page 2 of 17 1 TABLE OF AUTHORITIES 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON 1255 Tual Bouleva'd Su.ie 600 Wllnul Cle«k CA 94597 925 932 2468 PAGE CASES Alix v. Shoney's, Inc. 1997 U.S. Dist. LEXIS 1963 (E. D. La. 1997) 9 Berenson v. National Fin 'I Services LLC 319F.Supp.2dl(D.D.C. 2004) 7 Bisq'ettes Ceramic Tile, Inc. v. Errol Skinner, Donna Skinner, Swede, Inc. 2000 U.S. Dist. LEXIS 22674 (N. D. Cal. 2000) 9 Bohara v. Backus Hasp. Med. Ben. Plan 390 F. Supp. 2d 957 (C.D. Cal. 2005) 4 Brown v. KFC Nat 7 Mgmt. Co 82 Haw. 226(1996) 10 Bryant v. ITT Corp. 48 F.Supp.2d 829 (N.D. 111. 1999) 7 Chao v. A-One Medical Services, Inc. 346 F.3d 908 (9th Cir. 2003) 2 Clark v. Dollar Gen. Corp, 2001 U.S. Dist. LEXIS 25975 (M.D. Term. 2001) passim Continental Grain Co. v. Dant & Russell 118F.2d967(9thCir. 1941) 11 Defazio v. Hollister Emple. Share Ownership Trust 406 F.Supp.2d 1085 (N.D. Cal. 2005) 4 Diemer v. United States Postal Serv. 1987 WL 9037 (D.D.C. 1987) 7 Directv, Inc. v. EQ Stuff, Inc. 207 F. Supp. 2d 1077 (C.D. Cal. 2002) 5 Discover Bank v. Superior Court 134 Cal.App.4th 886 (2005) 6, 10 Dole Food Co. v. Watts 303 F.3d 1104 (9th Cir. 2002) 8 Erie R.R. v. Tompkins 304 U.S. 64(1938) 9 Fannin v. Jones 229 F.2d 368 (6th Cir. 1956) 11 Felzen v. Andreas 134 F.3d 873 (7th Cir. 1998) 11 Flotsam of Cal., Inc. v. Huntington Beach Conf. & Visitors Bureau 2007 U.S. Dist. LEXIS 31762 4,5 Gates Learjet Corp. v. Jensen 743 F.2d 1325 (9th Cir. 1984) 11 DEFENDANTS' REPLY BRIEF IN SUPPORT OF MOTION TO CHANGE VENUE PURSUANT TO 28 (NO. CV 03430 MMC) Case 3:07-cv-03430-MMC Document 27 Filed 09/14/2007 Page 3 of 17 TABLE OF AUTHORITIES (CONTINUED) PAGE 1 2 3 Gintz v. Jack in the Box, Inc. 2007 U.S. Dist. LEXIS 10722 (N.D. Cal. 2007) 7, 8 Helfant v. Louisiana & Southern Life Ins. Co. 5 82 F.R.D. 53 (E.D.N.Y. 1979) 7 Homestake Lead Co. v. Doe Run Resources 6 282 F.Supp. 2d 1131 (N.D. Cal. 2003) 11 7 In re ML-Lee Acquisition Fund II, L.P. 1 816 F.Supp. 973 (D. Del. 1993) 7, 9 8 Ingle v. Circuit City Stores, Inc. 328F.3dll65(9thCir.2003) 6,10 Q Jumara v. State Farm Ins. Co. 1Q 55 F.3d 873 (3d Cir. 1995) 10,11 Kasey v. Molybdenum Corp. of America 11 408 F.2d 16 (9th Cir. 1969) 10 . 0 KCJ Corp. v. Kinetic Concepts, Inc. 12 18 F. Supp. 2d 1212 (D. Kan. 1998) 9 13 Leonard v. Terminix Int 'I Co., L.P. 854 So.2d 529 (Ala. 2002) 10 Lewis v. ABC Business Services, Inc. 15 135 F.3d 389 (6th Cir. 1998) 7 Lockman Found, v. Evangelical Alliance Mission 16 930 F.2d 764 (9thCir. 1991) 8 , _ Los Angeles Memorial Coliseum v. NFL 1' 89 F.R.D. 500 (C.D. Cal. 1981) 1 18 Lou v. Belzberg 834 F.2d 730 (9th Cir. 1987) 7 19 New Image, Inc. v. Travelers Indem. Co. 2Q 536 F.Supp. 58 (E.D. Pa. 1981) 7 O 'Hopp v. Contiflnancial Corp. 21 88 F.Supp.2d 31 (E.D.N.Y. 2000) 7 ~0 Onyeneho v. Allstate Ins. Co. ^ 466 F. Supp. 2d 1 (D.D.C. 2006) 8 23 Palmco Corp. v. JSC Techsnabexport 448 F. Supp. 2d 1194 (C.D. Cal. 2006) 8 Parrish v. NFL Players Inc. 25 2007 U.S. Dist LEXIS 43732 (N.D. Cal. 2007) 9 Piper Aircraft v. Reyno 26 454 U.S. 235 (1981) 8 07 Pro Spice Inc. v. Omni Trade Group, 173 F. Supp. 11 2d 336 (E.D. Penn. 2001) 4 28 LITTLER MENDELSON DEFENDANTS' REPLY BRIEF IN SUPPORT OF 7»Hs:L""d°" MOTION TO CHANGE VENUE PURSUANT TO Hi. «.„„ csn™ »»> 28 (NO. CV 03430 MMC) 925 932 2*69 Case 3:07-cv-03430-MMC Document 27 Filed 09/14/2007 Page 4 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON TABLE OF AUTHORITIES (CONTINUED) PAGE Rains v. Foundation Health Systems Life & Health 23 P.3d 1249 (Colo. App. 2001) 10 Salinas v. O'Reilly Auto., Inc. 358 F. Supp. 2d 569 (N.D. Tex. 2005) 7, 9 Securities Investor Protection Corp. v. Vigman 764 F.2d 1309 (9th Cir. 1985) 9 Snyder v. Smith 736 F.2d 409 (7th Cir. 1984) 11 Soloman v. Continental American 472 F.2d 1043 (3d Cir. 1973) 1,11 Van Dusen v. Barrack 376 U.S. 612(1964) 5 Veliz v. Cintas Corp. 2005 U.S. Dist. LEXIS 9230 (N.D. Cal. 2005) 11 STATUTES 29 C.F.R. §541.100 3,6 29 C.F.R. §541.200 3,6 20 C.F.R. §541.700(a) 6 8 Cal. Admin. Code §11070(1 )(A)(l)(e) 6 8 Cal. Admin. Code §11070(2)(A)(l)(f) 6 Code of Civ. Proc. §382 6 Fed. R. Civ. Proc. 45(a)(2)(B) 2 Fed. R. Civ. Proc. 5(b) 12 Fed. R. Evid. 408 6 ACTS Fair Labor Standards Act passim UNITED STATES CODE 29U.S.C. §216(b) 6 9U.S.C. §4 11 NORTHERN DISTRICT CIVIL LOCAL RULES Civ. L. R. 5-5(a) 12 Civ. L. R. 7-3(a) 12 Firmwide:83099384.1 022233.2150 DEFENDANTS' REPLY BRIEF IN SUPPORT OF MOTION TO CHANGE VENUE PURSUANT TO 28 (NO. CV 03430 MMC) IV. Case 3:07-cv-03430-MMC Document 27 Filed 09/14/2007 Page 5 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON Suite 600 925 932 2468 I. INTRODUCTION Plaintiff Toressa Lockette's ("Plaintiff") opposition brief ignores the dispositive factor raised by Defendants Ross Stores, Inc. and Ross Dress for Less, Inc. (collectively "Defendants" or "Ross") in this motion: virtually no potential class members reside in California. In the Taylor action, every California assistant manager released their federal wage and hour claims against Ross and, as part of that settlement, Ross reclassified all California assistant general managers. Plaintiff, therefore, is seeking to adjudicate the rights of a class of non-California employees in a California Court. Simply put, using California judicial resources to litigate an action by an Alabama citizen who never worked one day in California action makes no sense. It will make even less sense if a class comprised of citizens of every state but California is someday certified. The cases cited in Plaintiffs' opposition do not compel a different conclusion. Accordingly, Defendants' motion to transfer this case to the Northern District of Alabama should be granted. II. ARGUMENT A. A Change In Venue Is Proper Under Section 1404(a). Plaintiff does not dispute that this action could have been brought in the Northern District of Alabama. Plaintiff also does not deny that the location of her counsel should not be considered in ruling on this motion. Defendants' Opening Brief (hereinafter "O.B.") 5:9-28; Opp. 16:5-9; Soloman v. Continental American, 472 F.2d 1043, 1047 (3d Cir. 1973); Los Angeles Memorial Coliseum v. NFL, 89 F.R.D. 500, 501 (C.D. Cal. 1981) (evaluating convenience of the parties, not the convenience of counsel). There is no question, then, that the Northern District of Alabama is a viable venue for this action. 1. Plaintiff Overlooks The Undisputed Fact That Few, If Any, Putative Class Members Are In California. Plaintiff ignores the dispositive, undisputed fact that the Taylor settlement will strip this putative class of California residents. The Taylor settlement conclusively resolved the misclassification claims of all California assistant managers. O.B. 4:1-13; Request for Judicial Notice, Exh. B (Declaration Of Marc Primo In Support Of Unopposed Motion For Order Granting DEFENDANTS' REPLY BRIEF IN SUPPORT OF MOTION TO CHANGE VENUE PURSUANT TO 28 (NO. CV 03430 MMC) 1. Case 3:07-cv-03430-MMC Document 27 Filed 09/14/2007 Page 6 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON 1256 T r e n t BouUvard Suite 600 W » l n u l C r e e d , CA 94597 975 932 2468 Final Approval To Class Action Settlement, Award Of Class Counsel Fees And Costs, And Award Of Service Payment To Class Representatives, attaching as Exhibit A thereto Joint Stipulation Of Settlement And Release ("Taylor Joint Stipulation") at f3). The Taylor settlement class included all current and former employees employed by Defendant in the position of assistant manager at their business locations within the state of California for a nearly six-year period -- from May 10, 2000 until November 1, 2006. O.B. 4:7-9; Taylor Settlement Order at f5. The Taylor Joint Stipulation includes as part of its release a broad range of claims, including federal (FLSA) claims. O.B. 4:10- 11; Taylor Joint Stipulation, ^fl9. In conjunction with the Taylor settlement, California assistant managers were reclassified. They are now treated as non-exempt from overtime under California law, while Ross assistant managers outside of California remain exempt. Cook Decl. f5; Opp. 5:21- 23; O.B. 6:15-21. Because of Taylor, Defendants have a complete defense in this action to the extent it seeks to relitigate these issues on behalf of member of the Taylor settlement class. That class is subject to claim preclusion, as their overtime claims were resolved, whereas the claims of non- California assistant managers were not. See Chao v. A-One Medical Services, Inc., 346 F.3d 908, 921-922 (9th Cir. 2003), cert, denied 541 U.S. 1030 (2004). O.B. 8:3-9:7. This mitigates in favor of transfer to a jurisdiction where the forum's citizens actually have something at issue. Plaintiff has no basis to contend that a California class action is appropriate in the complete absence of California class members. A transfer of venue is unquestionably appropriate. 2. The Possible Location of Witnesses In California Is Insufficient to Preclude Transfer. Plaintiff argues that key witnesses are at corporate headquarters, because an alleged unifying "policy" purportedly "emanated" from California. Plaintiffs Opposition (hereinafter "Opp.") 1:3-6, 1:11-12, 2:7, 5:16-17, 5:20-21, 8:11-16, 8:20-22, 10:4-5, 10:9-10, 10:11-12:9, 11:17, 14:9-18, 15:7-8, 16:25-27, 17:16-18, 17:21-22 This argument is misdirected and contrary to the facts. See O.B. 6:5-12. Under Federal Rule Of Civil Procedure 45, the witnesses will be deposed where they reside. See e.g. Fed. R. Civ. Proc. 45(a)(2)(B). It is irrelevant where the case is sitused. To the DEFENDANTS' REPLY BRIEF IN SUPPORT OF MOTION TO CHANGE VENUE PURSUANT TO 28 (NO. CV 03430 MMC) 2. Case 3:07-cv-03430-MMC Document 27 Filed 09/14/2007 Page 7 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON Tf.il Towfld 1255 Tien Boul«v»(d Suile 600 W i l n u t Creek CA 94597 925 932 2468 extent Plaintiff seeks to "protect" the convenience of Ross corporate representatives, Plaintiff need not be concerned. If the change in venue inconvenienced potential class members or Plaintiff, this argument might have legs. However, here, it is clear that Plaintiff and class members will not be served by venuing the case in California. Moreover, there is no evidence that any class of witnesses relevant to this action will be better served by this case being in California. First we should consider what is at issue. The overtime exemptions most likely to be relevant to a putative class of assistant managers are the executive exemption and the administrative exemption. The executive exemption applies where the individual is paid a salary of at least $455 per week, whose primary duty is management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof, who customarily and regularly directs the work of two or more other employees, and who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight. 29 C.F.R. §541.100. The administrative exemption applies to individuals who are compensated at a salary level of at least $455 per week, whose primary duty is performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers, and whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance. 29 C.F.R. §541.200. Both of those exemptions require an analysis of facts best known to local witnesses, such as whether the putative class member regularly directed the work of two or more employees, whether the putative class member made suggestions about hiring and firing or other changes of status of other employees, whether the putative class member regular performed office or non- manual work directly related to the management or general business operations of the employer or the employer's customers, and whether the putative class member exercised discretion and independent judgment with respect to matters of significance. 29 C.F.R. §§541.100, 541.200. Moreover, local employees would have the most knowledge about whether a putative class member worked hours over 40 that were not reported on Defendants' timekeeping system. DEFENDANTS' REPLY BRIEF IN SUPPORT OF MOTION TO CHANGE VENUE PURSUANT TO 3. 28 (NO. CV 03430 MMC) Case 3:07-cv-03430-MMC Document 27 Filed 09/14/2007 Page 8 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON Treat Tower) I25S Treat Boulevard Sun* 600 Walnut Creek. CA 94597 925 93? Z<6« Plaintiffs arguments to the contrary lead nowhere. Defendants do not employ all of the potential witnesses. Opp. 8:18-19, 12:23-13:10. Given the large scope of the putative class (26 states over a purported three-year time period), it is common sense that a significant number of witnesses (such as co-workers and local managers for putative class members) are no longer employed by Defendants. If this case was transferred, witnesses would have to travel to Alabama instead of California, but because few putative class members are in California, less travel will occur if this case were transferred. Opp. 8:22-25. Other cases cited by Plaintiff are factually distinguishable from the situation at hand. Flotsam of Cal, Inc. v. Huntington Beach Conf. & Visitors Bureau, 2007 U.S. Dist. LEXIS 31762, *3 (N.D. Cal. 2007) (denying a motion to transfer venue from the Northern District of California to the Central District of California in a non-class action trademark and unfair competition case where, in contrast to the facts here, the alleged infringing conduct occurred solely in the Northern District of California, the plaintiff was domiciled in the Northern District of California, and all identified witnesses except one resided in California); Defazio v. Hollister Emple. Share Ownership Trust, 406 F.Supp.2d 1085, 1090 (N.D. Cal. 2005) (denying motion to change venue in an ERISA action where the plaintiff resided in the Northern District of California); Bohara v. Backus Hosp. Med. Ben. Plan, 390 F. Supp. 2d 957, 963 (C.D. Cal. 2005) (denying motion to change venue in an ERISA action, noting that "because this is an ERISA case, this Court's review is likely to be limited to the administrative record alone, without the need for any additional witnesses"); Clark v. Dollar Gen. Corp., 2001 U.S. Dist. LEXIS 25975, *8 (M.D. Term. 2001) (denying a motion to change venue where the requested venue was only 150 miles away); Pro Spice Inc. v. Omni Trade Group, 173 F. Supp. 2d 336, 342 (E.D. Penn. 2001) (denying motion to change venue where a substantial part of the acts or omissions giving rise to the claim occurred in the venue where the action was brought). In sum, the absence of class witnesses in California weighs heavily in favor of transfer, and federal procedure regarding depositions and subpoenas mitigates any detrimental impact of the transfer. DEFENDANTS' REPLY BRIEF IN SUPPORT OF MOTION TO CHANGE VENUE PURSUANT TO 28 (NO. CV 03430 MMC) 4. Case 3:07-cv-03430-MMC Document 27 Filed 09/14/2007 Page 9 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON 1255 Trail Boultvi'd Sui te 600 Wainui Creek C* 94597 Sl*> 932 2468 a. Transfer Would Place This Lawsuit In The Most Appropriate Forum. Contrary to Plaintiffs argument, transfer to the Northern District of Alabama would not merely reallocate the burden. Opp. 3:9-13, 14:3-26, 17:3-11. Transfer to the Northern District of Alabama would reduce the burden on the parties, witness, and the federal court system. Plaintiff does not dispute that she resides in Alabama and worked for Defendants in Alabama. O.B. 7:22-24. Accordingly, on balance, litigation of this case in Alabama is decidedly less burdensome than litigation of this case in California. The cases cited by Plaintiff do not save her argument. Van Dusen v. Barrack, 376 U.S. 612, 646 (1964) (holding that a motion to change venue could only be granted if at the time the suits were brought, the respondents were qualified to sue in the state of the transferee court); Flotsam ofCal, Inc. v. Huntington Beach Conf. & Visitors Bureau, 2007 U.S. Dist. LEXIS 31762 (evaluating transfer of venue from the Northern District of California to the Central District of California); Directv, Inc. v. EQ Stuff, Inc., 207 F. Supp. 2d 1077, 1083 (C.D. Cal. 2002) (plaintiff resided in California; many of the parties and witnesses resided in California); Clark v. Dollar Gen. Corp., 2001 U.S. Dist. LEXIS 25975, *8 (requested venue was only 150 miles away). Plaintiffs recitation of the number of Defendants' stores inside and outside of California is irrelevant. Opp. 17:12-18. Equally irrelevant is Plaintiffs observation that Defendants' arbitration policy calls for service of arbitration demands upon Defendants' General Counsel in California. Merely accepting service in a particular location does not equate to a waiver of the right to transfer venue an action from that location. Opp. 20:1-4. The important factor here is the location of the putative class members, with question, those witnesses are not located in California. Opp. 17:15-18. b. Plaintiffs Speculation About Defendants' Purported Motivation Cannot Obstruct A Change In Venue. Plaintiff speculates that Defendants' motivation for seeking a transfer is to avoid a possible collateral estoppel effect of the Taylor settlement on class certification and arbitration issues. Plaintiffs representation of Defendants' purported intent is without cite to the record and, therefore, not properly before this Court. Opp. 1:13-28, 2:7-9; Civ. L.R. 7-5(a) (factual contentions DEFENDANTS' REPLY BRIEF IN SUPPORT OF MOTION TO CHANGE VENUE PURSUANT TO 28 (NO. CV 03430 MMC) 5. Case 3:07-cv-03430-MMC Document 27 Filed 09/14/2007 Page 10 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDEISON T - B S l I O W * ' J 1?S5 T r a i l Boul«v«'<] Su»« 600 Walnui C i e e k . CA 94597 925 932 7466 made in support of or in opposition to any motion must be supported by an affidavit or declaration and by appropriate references to the record). Nonetheless, Plaintiffs speculation is illogical. The Taylor settlement would not and could not demonstrate the propriety of class certification in the instant case. Opp. 11:28-12:5. First, the Taylor settlement, by its terms, cannot be used as a sword against Defendants; it can only be used to support a defense. Taylor Settlement Order ^[7 ("...the Settlement Agreement...shall not...be evidence of...an admission....[A]ny of the Released Parties...may file...the Settlement Agreement...as evidence...to support a defense" (emphasis added)). Second, using the settlement as a sword would violate the public policy principles behind Federal Rule of Evidence 408. Settlement of a single- state class actions would be severely chilled if such settlements could be improperly used as admissions of liability in later filed nationwide class actions. Fed. R. Evid. 408. Third, Taylor involved California employees and the exemption issued were litigated under California law. Thus, even if class certification was proper in Taylor, it does not demonstrate that class certification is proper in the current case brought under the FLSA and allegedly spanning 26 states. The class certification standard under California Code of Civil Procedure section 382 differs markedly from the class certification standards under Rule 23 and the FLSA, 29 U.S.C. §216(b). Moreover, as to the merits, California applies a quantitative test for determining the executive and administrative exemptions, as set out in its Wage Orders. See e.g., 8 Cal. Admin. Code §11070(l)(A)(l)(e) (an executive employee is one who, in part, "primarily engaged" in duties which meet the test for the exemption); 8 Cal. Admin. Code §11070(2)(A)(l)(f) (same for administrative employee). The federal "primary duties" standard is qualitative in nature. 29 C.F.R. §§541.100, 541.200, 541.700(a). Fourth, even if the Taylor court ruled on an arbitration issue, that ruling would be entitled to no collateral estoppel effect particularly outside of California, because the enforceability of an arbitration agreement depends in part on the state law in which a putative class member was employed at the time he/she entered the agreement. See e.g. Ingle v. Circuit City Stores, Inc., 328 F.3d 1165, 1170 (9th Cir. 2003), cert, denied, 540 U.S. 1160 (2004); Discover Bank v. Superior Court, 134 Cal.App.4th 886, 894-95 (2005). DEFENDANTS' REPLY BRIEF IN SUPPORT OF MOTION TO CHANGE VENUE PURSUANT TO 28 (NO. CV 03430 MMC) 6. Case 3:07-cv-03430-MMC Document 27 Filed 09/14/2007 Page 11 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON T'ail Towers 1255 T rea t Boulevaid Sune 600 W a l n u t Creek CA 94597 925 932 2466 3. Transferring The Case Will Promote The Interests Of Justice. a. Plaintiff Admits Her Choice Of Forum Is Entitled To "Less Weight." Plaintiff does not dispute that the deference ordinarily given to a plaintiffs choice of forum is substantially diminished where a plaintiff commences an action in a forum that is not her residence. O.B. 7:10-16; Lewis v. ABC Business Services, Inc., 135 F.3d 389, 413 (6th Cir. 1998); New Image, Inc. v. Travelers Indent. Co., 536 F.Supp. 58, 59 (E.D. Pa. 1981); Bryant v. ITT Corp., 48 F.Supp.2d 829, 832 (N.D. 111. 1999); In re ML-Lee Acquisition Fund II, L.P., 816 F.Supp. 973, 976 (D. Del. 1993) (recognizing that transfer of a case will generally be regarded as less inconvenient to a plaintiff if the plaintiff has not chosen its home turf or a forum where the alleged wrongful activity occurred). Plaintiff does not dispute that she resides in Alabama and not the Northern District of California. O.B. 7:22-25. Therefore, based on undisputed law and fact, any weight given to Plaintiffs choice of forum is substantially diminished. Plaintiff also does not dispute that Plaintiffs choice of forum should be given "less weight" because she brought this case as a nationwide class action. O.B. 7:15-25; Opp. 6:18-7:18; Opp. 6:21-23 ("Ninth Circuit has made it clear that...a plaintiffs choice of forum is entitled to 'less weight' in the context of a class action"); Lou v. Belzberg, 834 F.2d 730, 739 (9th Cir. 1987), cert, denied, 485 U.S. 993 (1988), citing Helfant v. Louisiana & Southern Life Ins. Co., 82 F.R.D. 53, 58 (E.D.N.Y. 1979); Berenson v. National Fin'I Services, LLC, 319 F.Supp.2d 1, 3 (D.D.C. 2004); O'Hopp v. Contiflnancial Corp., 88 F.Supp.2d 31, 35 (E.D.N.Y. 2000); Diemer v. United States Postal Serv., 1987 WL 9037, *4 (D.D.C. 1987). Further, several of the cases cited by Plaintiff actually support Defendants' argument. Gintz v. Jack in the Box, Inc., 2007 U.S. Dist. LEXIS 10722, *5 (N.D. Cal. 2007) ("when the plaintiffs represent a class, their choice of forum is given less weight"); Clark v. Dollar Gen. Corp., 2001 U.S. Dist. LEXIS 25975, *6 ("when a plaintiff has little or no connection to the chosen forum, the plaintiffs reason for choosing the forum~and remaining in the forum-is diminished and thus should be given less weight"); Salinas v. O'Reilly Auto., Inc., 358 F. Supp. 2d 569, 571 (N.D. Tex. 2005) (the importance of a plaintiffs choice of forum should be discounted "where the plaintiff is a DEFENDANTS' REPLY BRIEF IN SUPPORT OF MOTION TO CHANGE VENUE PURSUANT TO 28 (NO. CV 03430 MMC) 7. Case 3:07-cv-03430-MMC Document 27 Filed 09/14/2007 Page 12 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON Treal Towtri 1?Si Tret ! BouUva'd Suiie 600 nonresident of the forum, when the plaintiff sues derivatively or as a class representative, and where the cause of action did not conclusively arise in the selected forum"). Contrary to Plaintiffs argument, FLSA cases are not impervious to motions to change venue. Opp. 6:7-18. See e.g. Gintz v. Jack in the Box, Inc., 2007 U.S. Dist. LEXIS 10722 at *13-14 (granting defendant's motion to transfer venue to the Northern District of Texas for non- California class members and denying defendant's motion to change venue for the California class members); Onyeneho v. Allstate Ins. Co., 466 F. Supp. 2d 1, 4-5 (D.D.C. 2006) (granting defendant employer's 1404(a) motion to change venue from the District of Columbia to Maryland in FLSA case, where plaintiffs' claims arose out of their work while employed at defendant's Columbia, Maryland office, and they performed the majority of their work activities in Maryland, received their wages in Maryland, and were supervised by individuals in Maryland; noting that "deference owed to plaintiffs' choice of forum is further diminished where 'transfer is sought to the forum where plaintiffs reside."). Inexplicably, several cases cited by plaintiff involved motions to dismiss, not motions to change venue. Opp. 4:15-7:18. Piper Aircraft v. Reyno, 454 U.S. 235, 265-66 (1981) (not a class action case and not a 1404(a) case; affirming 12(b)(6) dismissal for forum non conveniens in a case arising out of a plane crash in Scotland; noting that plaintiffs choice of forum was entitled to less deference because the plaintiff was foreign/Scottish); Dole Food Co. v. Watts, 303 F.3d 1104, 1118 (9th Cir. 2002) (not a class action case and not a 1404(a) case; reversing lower court's Rule 12 dismissal of a fraud suit brought against two residents of European countries for lack of personal jurisdiction; setting forth elements for a motion to dismiss for forum non-conveniens, not a motion to change venue under 1404(a)); Lockman Found, v. Evangelical Alliance Mission, 930 F.2d 764, 767 (9th Cir. 1991) (not a class action case and not a 1404(a) case; affirming dismissal under Rule 12 for forum non conveniens of a copyright case arising under United States, Japanese and California law); Palmco Corp. v. JSC Techsnabexport, 448 F. Supp. 2d 1194, 1196 (C.D. Cal. 2006) (not a class action case and not a 1404(a) case; granting motion to dismiss for forum non conveniens in a case arising out of a series of contracts between a California corporation and a Russian Federation-owned entity, where the contracts stated that all claims would be arbitrated in Sweden); see also Securities DEFENDANTS' REPLY BRIEF IN SUPPORT OF MOTION TO CHANGE VENUE PURSUANT TO 8. 28 (NO. CV 03430 MMC) Case 3:07-cv-03430-MMC Document 27 Filed 09/14/2007 Page 13 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON Trail Tow.rt 1?55 Tttal Boulevard Suiie 600 Walnut Creek CA 9*597 925 93? 2468 Investor Protection Corp. v. Vigman, 764 F.2d 1309, 1316-1318 (9th Cir. 1985) (not a class action case and did not a 1404(a) case; evaluating a co-conspirator venue theory brought under the Securities and Exchange Act of 1934, 15 U.S.C. §78aa); Bisq'ettes Ceramic Tile, Inc. v. Errol Skinner, Donna Skinner, Swede, Inc., 2000 U.S. Dist. LEXIS 22674, *19 (N. D. Cal. 2000) (not a class action case; denying motion to change venue of a suit asserting California state law claims regarding activities that took place in California); Parrish v. NFL Players Inc., 2007 U.S. Dist. LEXIS 43732 (N.D. Cal. 2007) (not a FLSA case; noting that one of the named plaintiffs resided in the Northern District of California). Other cases cited by Plaintiff are not binding on this court and, moreover, do not help her. In re ML-Lee Acquisition Fund II, L.P., 816 F.Supp. at 976, 978 (denying motion to change venue from Delaware to Massachusetts in a class securities action where limited partnership agreement and the challenged prospectus both contained choice of law clauses providing that they are to be construed and enforced in accordance with Delaware law, and that that three of plaintiffs' causes of action arose under Delaware law); Clark v. Dollar Gen. Corp., 2001 U.S. Dist. LEXIS 25975, *8 (denying motion to change venue where the defendant requested transfer to a venue only 150 miles away); Salinas v. O'Reilly Auto., Inc., 358 F. Supp. 2d 569 (denying motion to change venue where three of the four plaintiffs resided in Texas and the Texas and Missouri venues were centrally located for putative class members); Alix v. Shoney's, Inc., 1997 U.S. Dist. LEXIS 1963 (E. D. La. 1997) (plaintiffs brought suit in the state in which they resided); KCJ Corp. v. Kinetic Concepts, Inc., 18 F. Supp. 2d 1212, 1216 (D. Kan. 1998) (holding that the Western District of Missouri did not err in transferring the case to Kansas instead of Texas and that transfer from Kansas to Texas was not in the interest of justice or for the convenience of the parties and witnesses). b. Importance Of State Law Arbitration Issues Weighs In Favor Of Transfer. Plaintiffs reliance on Erie R.R. v. Tompkins, 304 U.S. 64 (1938) is incorrect. The relevant law-Federal Arbitration Act, 9 U.S.C. §1 and case law thereunder-mandates that the law of the state in which each putative class member worked at the time that person entered into the arbitration agreement governs the enforceability and contract defenses to that agreement. Ingle v. DEFENDANTS' REPLY BRIEF IN SUPPORT OF MOTION TO CHANGE VENUE PURSUANT TO 28 (NO. CV 03430 MMC) 9. Case 3:07-cv-03430-MMC Document 27 Filed 09/14/2007 Page 14 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON 1re»i Towers 1255 Tr ta i Boulavird Sutle 600 Circuit City Stores, Inc., 328 F.3d at 1170; Discover Bank v. Superior Court, 134 Cal.App.4th at 894-95. One arbitration issue that differs substantially among jurisdictions is whether a class action waiver clause is enforceable. Opp. 18:12-21; 18 n.2. See e.g., Discover Bank v. Superior Court, 36 Cal.4th 148 (a class action ban stated in a consumer's arbitration agreement with a credit card company was substantively unconscionable, because the consumer's claim was so small ($29.00) that the ban would insulate the company from accountability for alleged wrongdoing); Rains v. Foundation Health Systems Life & Health, 23 P.3d 1249, 1253 (Colo. App. 2001) (in the context of an insurance dispute, the arbitration agreement was silent regarding class actions; the court noted in dicta that "arbitration clauses are not unenforceable simply because they might render a class action unavailable"); Brown v. KFC Nat'l Mgmt. Co., 82 Haw. 226, 246 n.23 (1996) (in the context of an employment dispute, the arbitration agreement was silent regarding class actions; however, the court noted in dicta that the alleged elimination of the opportunity for class actions did not render arbitration agreement unenforceable). Even if Alabama law regarding class action waiver clauses is consistent with California law as Plaintiff posits (a point that Defendants do not concede), it does not follow that the law is consistent among the other 24 states in which putative class members worked. Opp. 19:13-15, citing Leonard v. Terminix Int'l Co., L.P., 854 So.2d 529, 536- 539 (Ala. 2002) (reviewing an arbitration agreement that was silent regarding class actions). If this matter were transferred to Alabama, the Alabama court instead of this Court would apply the law of the state in which Plaintiff and each putative class member worked at the time that person entered into the arbitration agreement. Because Plaintiff undisputedly worked in Alabama when she entered her arbitration agreement, the Alabama court, and not this court, should bear the burden of that undertaking. Thus, this factor weighs in favor of transfer. c. The Relative Congestion Of The Courts Calls For Transfer. Plaintiff does not dispute that a factor influencing the interests of justice and favoring transfer is the docket caseload or relative congestion of the courts. Kasey v. Molybdenum Corp. of America, 408 F.2d 16, 20 (9th Cir. 1969); Jumara v. State Farm Ins. Co., 55 F.3d 873, 879, 883 (3d Cir. 1995); Solomon v. Continental American Life Ins. Co., 472 F.2d 1043, 1047 (3d Cir. 1973); DEFENDANTS' REPLY BRIEF IN SUPPORT OF MOTION TO CHANGE VENUE PURSUANT TO 10. 28 (NO. CV 03430 MMC) Case 3:07-cv-03430-MMC Document 27 Filed 09/14/2007 Page 15 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 4 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDEISON see also Clark v. Dollar Gen. Corp., 2001 U.S. Dist. LEXIS 25975, *11 ("[t]he respective docket loads of district courts may be considered appropriately on a motion for transfer). Plaintiff also does not dispute the fact that that the Northern District of California's civil docket is significantly more congested than that of the Northern District of Alabama, and that that the Northern District of California's civil docket is approximately 50% more congested than that of the Northern District of Alabama. Plaintiffs reliance on Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1337 (9th Cir. 1984), cert, denied 471 U.S. 1066 (1985), is misplaced, as that case involved dismissal for forum non conveniens, not transfer under 1404(a). Id. (reversing dismissal where a foreign corporation solicited the distributorship agreement in the state and the agreement contained a choice of law provision naming the state as the choice); see also Fannin v. Jones, 229 F.2d 368, 369 (6th Cir. 1956), cert, denied 351 U.S. 938 (1956) (affirming transfer of venue based on one division's "overcrowded docket"). As such, Plaintiffs argument that a "speedier trial" is the relevant factor is of no matter. Opp. 20:21-21:2. Accordingly, this factor as well weighs in favor of transfer. d. If Arbitration Were Ordered, Arbitration Would Have To Occur In The Inconvenient Forum Of The Northern District Of California. Plaintiff does not dispute, and therefore admits, that if a district court decides to compel arbitration, it must order the arbitration to be held in the district where the petition is filed. 9 U.S.C. §4; Continental Grain Co. v. Dant & Russell, 118 F.2d 967, 968-969 (9th Cir. 1941); Homestake Lead Co. v. Doe Run Resources, 282 F.Supp. 2d 1131, 1143-44 (N.D. Cal. 2003); Veliz v. Cintas Corp., 2005 U.S. Dist. LEXIS 9230 at *21 (N.D. Cal. 2005); Snyder v. Smith, 736 F.2d 409, 419-20 (7th Cir. 1984), cert, denied, 469 U.S. 1037 (1984), overruled on other grounds in Felzen v. Andreas, 134 F.3d 873 (7th Cir. 1998). Thus, for example, if this Court were to compel arbitration of Plaintiffs claims, Plaintiff and the bulk of the witnesses, who likely still reside in Alabama, would have to travel to the Northern District of California to participate in Plaintiffs arbitration. Accordingly, as these points are undisputed, they weigh in favor of transfer. DEFENDANTS' REPLY BRIEF IN SUPPORT OF MOTION TO CHANGE VENUE PURSUANT TO 28 (NO. CV 03430 MMC) 11. Case 3:07-cv-03430-MMC Document 27 Filed 09/14/2007 Page 16 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON Suil« 600 W a l n u t C r e a k C* 94597 925 932 2*66 B. Plaintiff Did Not Comply With The Local Rules Of The Northern District Of California. Plaintiff filed and served her opposition papers late. See Order Vacating September 7, 2007 Hearing (document #12 on the Court's electronic docket). Plaintiffs opposition was due on August 17, 2007; however, she did not file her opposition papers until August 23, 2007. See Plaintiffs Opposition, recorded as documents #13-16 on the Court's electronic docket); Civ. L. R. 7- 3(a) (requiring opposition to be filed 21 days before hearing date). Moreover, Defendants received Plaintiffs opposition in paper form on August 20, 2007. See Proof Of Service (electronic docket #16). Under the Local Rules applicable to cases not designated for e-filing, Plaintiffs service was late. Under Civil Local Rule 5-5(a), "The pleading or paper must be actually delivered to the receiving attorney or party within the meaning of Fed. R. Civ. Proc 5(b) on or before the due date." Civ. L. R. 5-5(a) (emphasis added). Plaintiffs opposition was not delivered on the due date. As such, Plaintiff failed to comply with the Local Rules and this Court need not consider her opposition. III. CONCLUSION For all of the foregoing reasons, Defendants respectfully request that the Court to order the transfer of this case to the Northern District of Alabama. Dated: September 14, 2007 Is/ J. KEVIN LILLY KEITH A. JACOBY LISA C. CHAGALA LITTLER MENDELSON A Professional Corporation Attorneys for Defendants ROSS STORES, INC.; ROSS DRESS FOR LESS, INC. DEFENDANTS' REPLY BRIEF IN SUPPORT OF MOTION TO CHANGE VENUE PURSUANT TO 28 (NO. CV 03430 MMC) 12. Case 3:07-cv-03430-MMC Document 27 Filed 09/14/2007 Page 17 of 17