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DEF. TACO BELL CORP.’S RESPONSE TO PLAINTIFF’S OPPOSITION TO DEF.
CHICAGO ASSOCIATION’S MOTION TO DISMISS [Case No. SACV09-1097 DOC (ANx)]
Robert C. O'Brien (SBN 154372)
obrien.robert@arentfox.com
Drew R. Hansen (SBN 218382)
hansen.drew@arentfox.com
Steven A. Haskins (SBN 238865)
haskins.steven@arentfox.com
ARENT FOX LLP
555 West Fifth Street, 48th Floor
Los Angeles, CA 90013-1065
Telephone: 213.629.7400
Facsimile: 213.629.7401
Attorneys for Defendant
TACO BELL CORP.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
SOUTHERN DIVISION
TRACIE THOMAS, individually
and on behalf of class of similarly
situated individuals,
Plaintiff,
v.
TACO BELL CORP., a California
corporation, and THE CHICAGO
AREA TACO BELL
RESTAURANT OWNERS’
ADVERTISING ASSOCIATION,
an Illinois corporation,
Defendants.
Case No. SACV09-1097 DOC (ANx)
Assigned to The Hon. David O. Carter
DEFENDANT TACO BELL CORP.’S
RESPONSE TO PLAINTIFF’S
OPPOSITION TO DEFENDANT
CHICAGO ASSOCIATION’S MOTION
TO DISMISS PLAINTIFF’S FOURTH
AMENDED COMPLAINT
Time: 8:30 a.m.
Date: October 18, 2010
Place: Courtroom 9D
Complaint Filed: September 15, 2009
Trial Date: None Set
Case 8:09-cv-01097-DOC -AN Document 93 Filed 10/04/10 Page 1 of 3 Page ID #:2915
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DEF. TACO BELL CORP.’S RESPONSE TO PLAINTIFF’S OPPOSITION TO DEF.
CHICAGO ASSOCIATION’S MOTION TO DISMISS [Case No. SACV09-1097 DOC (ANx)]
Plaintiff has filed multiple complaints in this district. These complaints have
been subject to several rounds of motion to dismiss briefing, and of those, this is the
second dealing directly with issues of this Court’s jurisdiction over the Chicago
Association. Indeed, the Chicago Association has already once successfully moved
to dismiss the claims against it on the grounds that this Court does not have
jurisdiction over it. Plaintiff now for the first time asks that this Court belatedly use
its discretionary power, sua sponte, to transfer venue to the Northern District of
Illinois. Plaintiff’s request is substantively defective and procedurally improper. It
should be denied.
Plaintiff’s request is substantively flawed because she chose this venue. She
has pursued the lawsuit through multiple iterations of her complaint for over a year.
In reliance on Plaintiff’s chosen venue, the parties have met and conferred
regarding a discovery plan and this Court has entered a scheduling order. A trial
date has been set. The parties have selected a mediator (in California). She has
never before evinced any intent to request a venue transfer, despite multiple
opportunities to do so. Her efforts now, at best, come too late.
Under these circumstances, there is simply no reason for venue to be changed
now. Indeed, whether a venue transfer is appropriate requires that this Court
analyze and balance many individual factors in a test with multiple prongs. See
Jones v. GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 2000) (explaining
that among the relevant venue inquiries are “(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”). Plaintiff has not even
attempted to meet her burden of proof on these issues. Moreover, a full analysis of
Case 8:09-cv-01097-DOC -AN Document 93 Filed 10/04/10 Page 2 of 3 Page ID #:2916
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DEF. TACO BELL CORP.’S RESPONSE TO PLAINTIFF’S OPPOSITION TO DEF.
CHICAGO ASSOCIATION’S MOTION TO DISMISS [Case No. SACV09-1097 DOC (ANx)]
these issues would strongly favor retaining this case in Plaintiff’s chosen forum of
the Central District of California.
Plaintiff’s request is not only substantively flawed but procedurally defective
as well. Taco Bell should be, at the very least, given notice and the opportunity to
be heard on a fully-noticed motion before this Court considers transferring this case
on venue grounds. See Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986)
(venue may be transferred sua sponte “so long as the parties are first given the
opportunity to present their views on the issue”); Saferstein v. Paul, Mardinly,
Durham, James, Flandreau, and Rodger, P.C., 927 F. Supp. 731, 737 (S.D.N.Y.
1996) (“[P]arties should be provided notice and an opportunity to be heard when
transfer is proposed sua sponte by the Court.”). But Taco Bell has not received
notice at all. Instead, Plaintiff improperly made its request in the context of its
opposition to the Chicago Association’s motion to dismiss. Because notice and an
opportunity to be heard has not been given, this Court cannot exercise its
discretionary power to transfer venue even if it were appropriate to do so (which it
is not).
Because Plaintiff’s belated request to transfer venue is improper, this Court
should reject it altogether. If the Court believes there are grounds to further
consider Plaintiff’s request, however, Taco Bell should be given notice and an
opportunity to fully demonstrate why the Court should not grant Plaintiff the relief
she seeks.
Dated: October 4, 2010 ARENT FOX LLP
By: /s/ Steven A. Haskins
Steven A. Haskins
Attorney for Defendant
TACO BELL CORP.
Case 8:09-cv-01097-DOC -AN Document 93 Filed 10/04/10 Page 3 of 3 Page ID #:2917
