Free Order on Motion for TRO - District Court of California - California

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 Plaintiffs, 14 v 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs are retiree health care beneficiaries of Mack Trucks, Inc ("Mack") who seek declaratory relief preventing defendants from reducing their health care benefits in April 2008. Doc ##5, 17. Defendants move to dismiss, stay or transfer venue of MACK TRUCKS, INC, and MACK HEALTH, DISABILITY, AND LIFE BENEFITS FOR UAW EMPLOYEES PLAN, Defendants. / ROBERT M EVITT, SR, JOEL ORTEGA and LORETTA EVITT, on behalf of themselves and a class of those similarly situated, No C 07-4830 VRW ORDER IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

this case to the Eastern District of Pennsylvania where a similar action is pending (Doc #20). Plaintiffs oppose transfer and stay The court

and move for a preliminary injunction (Doc ##5, 17, 19).

GRANTS defendants' motion and finds the motion for a preliminary injunction moot under the circumstances.

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I The following relevant facts are taken from plaintiffs' amended complaint. Doc #17. Plaintiffs Robert M Evitt, Sr and

Joel Ortega worked for Mack at its facility in Hayward, California from 1966 until 1980. Doc #17 at ¶¶13-14. They are both retired

with fixed incomes, and both receive health care under the plan provided by defendants. Plaintiff Loretta Evitt is married to

Robert Evitt, and she receives benefits under the plan as his dependent. Doc #17 at ¶15. They bring this action under the

Employee Retirement Income Security Act of 1974 ("ERISA"), 29 USC § 1001, and the Labor-Management Relations Act ("LMRA"), 29 USC § 185. Doc #17 at ¶2. Plaintiffs claim that through a series of

collective bargaining agreements between Mack and the United Auto Workers' union, Mack promised to provide retirees, their surviving spouses and their dependents with lifetime health care benefits. Doc #17 at ¶20. Plaintiffs argue that these benefits are vested

and cannot be reduced or eliminated without their consent, nor do they expire when the relevant collective bargaining agreements expire. Doc #17 at ¶¶7, 46, 52. On August 16, 2007, Mack sent a letter to beneficiaries under the plan stating that due to a restructuring of medical benefit coverage, beneficiaries would have to "pay a larger share of their health care costs" beginning on April 1, 2008. ¶30. Doc #17 at

Plaintiffs claim that as a result of these reductions, they Doc #17 at ¶34.

will suffer great financial hardship.

Accordingly, on September 20, 2007, they brought this class action, Doc #1, and sought an injunction on behalf of themselves and "[a]ll persons who are retirees of Mack Trucks, their surviving spouses, 2

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or their dependents, and are currently receiving medical benefits under the Mack Plan." Doc #17 at ¶35. On September 7, 2007, Mack

Mack, however, acted first.

filed an action for declaratory relief in the Eastern District of Pennsylvania: Mack Trucks, Inc v Intl Union, United Automobile, Aerospace & Agricultural Implement Workers of America-UAW et al, 07-3737. Doc #4. Mack named as defendants the union, five locals

and a man named Carl Breininger as a class representative for the retirees. Doc #4. Mack seeks a declaration that it owes no legal

duty to its retirees under the plan and that it is free to implement its proposed changes on April 1, 2008. ¶¶24-29. The court held a hearing on September 25, 2007, on plaintiffs' request for a temporary restraining order. At that Doc #4 Ex A at

hearing, Mack stated that it would not implement any changes to the health care plan before April 2008, and plaintiffs agreed to drop their request for a temporary restraining order. On October 5,

2007, plaintiffs filed an amended complaint adding Loretta Evitt as a named plaintiff and renewing their request for a preliminary injunction. Doc #17.

On October 8, 2007, defendants filed a motion to transfer this case to the Eastern District of Pennsylvania or to dismiss on the grounds of comity. Doc ##20, 21. Defendants argue that the

Eastern District of Pennsylvania is the more appropriate venue for this case because 43% of the putative class members in this case reside in that district, 61% reside in Pennsylvania, 89% reside within 250 miles of the federal courthouse in Reading, Pennsylvania, where the case is being heard, 98% reside east of the 3

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Mississippi River and only 0.2% of the class members ­ or 13 out of 5610 ­ reside in the Northern District of California. 1; Doc #21 at 3-4. Doc #49 at

The complaint filed in the Eastern District of

Pennsylvania states that the size of the class is approximately 9184 individuals, significantly higher than the 5610 individuals the defendants claim are in the putative class here. #4 Ex A at ¶19 with Doc #21 at 3-4. Compare Doc

This discrepancy is odd given

that defendants believe that the classes in the two actions are identical. Doc #26 at 2. This may or may not change the

percentages at issue, but it may affect whether the legal and factual issues here are indeed identical. Plaintiffs do not dispute any of defendants' numbers, responding instead that their choice of forum is entitled to great weight and that due to their extensive health problems, travel to Pennsylvania to participate in the litigation is exceedingly burdensome. If the court declines to transfer the case, defendants ask the court to dismiss the matter entirely, arguing that the court should defer to the Pennsylvania action because it was filed first. Doc #21 at 5. Plaintiffs respond that this case poses an

exception to the "first-filed rule" because the Pennsylvania action is an "anticipatory suit" filed in response to a threat of litigation by the union and Mack retirees. Doc #29 at 11-13.

Plaintiffs claim that the Pennsylvania action is improper for two reasons: first, the suit uses the inappropriate device of a defendant class action, and second, Mack engaged in forum shopping by depriving "the `natural plaintiff' ­ the UAW ­ of its choice of forum." Doc #29 at 12 & n8. 4

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Meanwhile, plaintiffs' request for a preliminary injunction remains. Doc ##5, 17. Mack argues that plaintiffs

cannot show a substantial likelihood of success on the merits because, in essence, the health care benefits were never lifetime, vested, uncapped benefits. Doc #26. In particular, Mack argues

that the agreements explicitly stated that the benefits would expire once the agreements expire and that benefits do not vest unless the agreements say so unambiguously. Doc #26 at 5, 7-9.

Mack contends that any bargaining agreements before 1992 (which cover Mack retirees such as Evitt who retired before 1992) never contained any language stating that retirees would receive "lifetime" benefits. Doc #26 at 10. Mack acknowledges that

documents after 1992 might suggest that post-1992 retirees such as Ortega will receive lifetime benefits, but Mack argues that those documents contain a reservation of rights clause which negates the lifetime benefits. Doc #26 at 10-12. Finally, Mack argues that

plaintiffs cannot show irreparable, immediate harm because no changes in benefits will occur until April 2008. Doc #26 at 14.

Plaintiffs respond that no agreement ever included a reservation of rights clause and that under Ninth Circuit precedent, a mere expiration date in a collective bargaining agreement does not undo rights that have vested. Doc #44 at 2-6.

In addition, plaintiffs argue that the agreements promised lifetime benefits for all retirees, not merely post-1992 retirees. at 9. Doc #44

Lastly, plaintiffs contend that an injunction is appropriate

because, first, a five-month wait until April 2008 is more than sufficient to justify a preliminary injunction, and second, that the balance of hardships tips in favor of the elderly retirees who 5

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will not be able to afford health care if Mack implements its changes. Doc #44 at 12-15. The court first considers defendants' motion to transfer venue. Because transfer is warranted, the court declines to rule

on plaintiffs' motion for a preliminary injunction.

II Because neither party disputes that this action might have been brought in the Eastern District of Pennsylvania, the court turns to the other factors relevant to the transfer decision. The venue transfer statute, 28 USC § 1404(a), sets forth two specific factors to consider: the convenience of the parties and the convenience of the witnesses. The statute also asks the Courts have

court to consider broadly "the interests of justice."

developed lists of factors to consider in deciding whether to transfer venue. Courts in this district have considered the following list of factors: (1) plaintiff's choice of forum, (2) convenience of the parties, (3) convenience of the witnesses including availability of compulsory process, (4) ease of access to the evidence, (5) familiarity of each forum with the applicable law, (6) feasibility of consolidation of other claims, (7) any local interest in the controversy and (8) the relative court congestion and time of trial in each forum. See Carolina Casualty Co v Data Consideration

Broad Corp, 158 F Supp 2d 1044, 1048 (ND Cal 2001).

of these factors appears to comport with the text of § 1404(a) as well as Supreme Court and Ninth Circuit precedent. See Gulf Oil

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Corp v Gilbert, 330 US 501, 508-09 (1947); Decker Coal Co v Commonwealth Edison Co, 805 F2d 834, 843 (9th Cir 1986). The burden of showing that transfer is appropriate is on the moving party. See Commodity Futures Trading Comm'n v Savage, Indeed, transfer under § 1404(a)

611 F2d 270, 279 (9th Cir 1979).

must be justified by demonstrating particular circumstances that render the transferor forum inappropriate. 512 F2d 918, 925 (DC Cir 1974). See Starnes v McGuire,

A The general rule is that a plaintiff's choice of forum is afforded substantial weight. See Decker Coal, 805 F2d at 843.

That choice of forum is given less deference when the case is a class action. See Lou v Belzberg, 834 F2d 730, 739 (9th Cir 1987);

see also, for example, Gerin v Aegon USA, Inc, No C06-5407 SBA, 2007 WL 1033472 at *3, *6 (ND Cal Apr 04, 2007); Papaleo v Cingular Wireless Corp, No C-07-1234 MMC, 2007 WL 1238713 at *1 (ND Cal Apr 26, 2007); Goldstein v RadioShack Corp, 2007 WL 1342533 at *3 (ED Tex 2007). That is particularly true here, where the putative

class members are concentrated in the mid-Atlantic ­ and in the Eastern District of Pennsylvania in particular ­ rather than "scattered" across the country. Evancho v Sanofi-Aventis US Inc,

No C 07-00098 SI, 2007 WL 1302985 at *2 (ND Cal May 03, 2007); compare Defrancesco v First Horizon Home Loan Corp, 2006 WL 3196838 at *2 (SD Ill 2006) (denying transfer because none of the putative class members resided in the transferee district). Plaintiffs respond that the ERISA statute's special venue provision grants more weight to the plaintiffs' choice of forum and 7

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outweighs any class action concerns.

That provision states that an

ERISA action "may be brought in the district where the plan is administered, where the breach took place, or where a defendant resides or may be found * * *." 29 USC § 1132(e)(2). The statute

on its face does not support plaintiffs' proposition and instead appears geared toward expanding the number of choices available to ERISA plaintiffs of where to file suit. See Winnett v Caterpillar It is unclear whether

Inc, 2006 WL 1722434 at *4 (MD Tenn 2006).

the statute operates merely to increase access to federal courts by precluding a § 1406 motion to transfer for improper venue or, as plaintiffs insist, to give greater weight to one out of many equally "proper" venues on a § 1404(a) motion. See Varsic v US

Dist Ct, 607 F2d 245, 247 (9th Cir 1979); HR Rep No 533, 93d Cong, 1st Sess, reprinted in 1974 USCCAN 4639, 4655 ("The intention of the Committee is to provide the full range of legal and equitable remedies available in both state and federal courts and to remove jurisdictional and procedural obstacles which in the past appear to have hampered effective enforcement of fiduciary responsibilities under state law for recovery of benefits due to participants."). And even if the ERISA venue provision "must influence the contours of the section 1404(a) analysis" (compare Ellis v Costco Wholesale Corp, 372 F Supp 2d 530, 537 (ND Cal 2005) (discussing venue transfer in a Title VII case)), the court is uncertain how much marginal weight to give § 1132(e)(2) over and above the weight already given to plaintiff's choice of venue in § 1404(a). See Bd

of Trustees, Sheet Metal Workers Nat Fund v Baylor Heating & Air Conditioning, Inc, 702 F Supp 1253, 1257 n14 (ED Va 1988).

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Here, the court gives weight to the plaintiffs' choice of In granting this deference, however, the court is mindful

that the putative class is concentrated in the proposed transferee district rather than scattered across the country and that only 0.2% of the putative class resides in this district. These factors

dilute the weight given to the named plaintiffs' choice of venue. See Lou v Belzberg, 834 F2d 730, 739 (9th Cir 1987). While

narrowly construed this factor weighs slightly against transfer, there are institutional considerations that the court will presently address and which offset or at least neutralize this as a factor against transfer.

B The court next considers convenience to the parties. Litigating this case in this district rather than the Eastern District of Pennsylvania would be vastly more convenient for the three named plaintiffs, who live in Hayward, California and Milpitas, California. Doc ##30, 31, 33. Each has serious medical Robert

issues which make prolonged travel extremely difficult.

Evitt, for instance, cannot stay seated for more than forty-five minutes. Doc #31 at ¶5. He uses a walker to move around and even Doc #31 at ¶5. In

with the walker cannot walk around the block.

addition, he sleeps hooked up to a large, heavy breathing machine that would be extremely difficult to transport by airplane. #31 at ¶6. Doc

Loretta Evitt cannot remain standing for more than Doc #30 at ¶5. Named plaintiff Joel Ortega has a

fifteen minutes.

chronic back condition that makes it difficult to remain seated in one position for a long time, as during a cross-country flight. 9

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Doc #33 at ¶6.

Besides the physical discomfort associated with

long travel, each plaintiff sees physicians in the Bay area regularly; travel to Pennsylvania would disrupt those regular visits, and in the event of an emergency, plaintiffs would not be treated by their regular doctors. Doc #33 at ¶7. Doc #30 at ¶5; Doc #31 at ¶7;

The named plaintiffs' difficulties are extensive,

although it is unclear how often this litigation will require their personal participation and still more their personal travel to Pennsylvania in the event of a transfer. Defendants, however, have not demonstrated that it would be prohibitively expensive or difficult for them to travel to San Francisco to litigate this action. The Ninth Circuit has noted on

multiple occasions that, "in this era of fax machines and discount air travel," it is not unreasonable to require a party, particularly a corporation, to litigate in another forum. See

Miracle v NYP Holdings, Inc, 87 F Supp 2d 1060, 1073 (D Hawaii 2000) (refusing to transfer venue, forcing New York corporation to travel to Hawaii to litigate), quoting Panavision Intl LP v Toeppen, 141 F3d 1316, 1323 (9th Cir 1998). Defendants have not

demonstrated that it would be inconvenient to litigate in this district. Defendants respond that litigating here would be "certainly not convenient for the 98% of the potential class who reside on the other side of the country." Doc #49 at 8.

Defendants' argument misses the mark because there is no reason why the absent class members will be involved in this litigation in any way. That is the purpose behind class actions. Only the named

plaintiffs are active in the litigation because the claims and 10

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harms are purportedly common to all class members.

In this

litigation, neither plaintiffs nor defendants claim that they plan to require absent class members to come to San Francisco. Accordingly the convenience or inconvenience of absent class members is irrelevant. Overall, the convenience of the parties

before this court weighs against transfer.

C To demonstrate inconvenience of third party witnesses, the moving party must identify relevant witnesses, state their location and describe their testimony and its relevance. Carolina Casualty Co, 158 F Supp 2d at 1049. See

Here, defendants have

identified three witnesses, all residing in Pennsylvania, who are expected to testify as to the Mack retiree benefits and the collective bargaining over those benefits. One witness, Joseph

Killino, is a former Mack employee ­ now an independent compensation and benefits consultant ­ who designed and administered the retiree medical benefits at issue here and also participated in the collective bargaining negotiations with the union. Doc #49 at 9; Doc #51 at ¶¶3, 5. Defendants have also

identified as a witness Joseph Huxta, who lives in Pennsylvania and holds Killino's old position. Doc #49 at 10; Doc #51. Huxta is a

Mack employee, not a third party witness, and therefore his convenience or inconvenience may be given less weight because his employer may compel him to testify. 708 F Supp 1551, 1556 (ND Cal 1988). See STX, Inc v Trik Stik, Inc, Lastly, defendants point to

John H Widman, a partner in a Pennsylvania law firm who handled Mack's collective bargaining negotiations with the union. 11 Doc #49

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at 10; Doc #52.

Widman is not a Mack employee, and like Killino, Defendants'

he would be inconvenienced by travel to San Francisco.

identification of only two non-employee witnesses in Pennsylvania does not weigh strongly in favor of transfer. Defendants argue that all of plaintiffs' third party witnesses are union employees who live in Michigan, which is closer to Pennsylvania than San Francisco. for two reasons. This argument is unconvincing

First, the difference between a flight from

Detroit to Philadelphia and a flight from Detroit to San Francisco is of only little import. More importantly, however, those

witnesses have stated that they are happy to testify in California. Doc #32 at ¶4; Doc #34 at ¶5. Accordingly, the convenience of

third party witnesses does not weigh strongly in favor of transfer.

D Other than the testimony of live witnesses, the bulk of evidence in this litigation is likely to be document-intensive, comprising the collective bargaining agreements and accompanying letters of agreement. See Doc #29 at 24. Because most of those

data can be transmitted and stored electronically, this factor does not weigh strongly in favor of transfer. See Intl Bhd of Teamsters

v North Am Airlines, 2005 WL 947083, No C05-0126 TEH (ND Cal April 20, 2005) ("Similarly, North American has not established that voluminous documents remain to be exchanged by the parties, or that any documents that exist in New York would have to be transferred to California rather than made available and copied in New York."). // // 12

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E There is no reason to believe that a judge in the Eastern District of Pennsylvania will be more or less familiar with ERISA than the judges of this district. Nor is there any suggestion that

the Eastern District would in any way be an unfair forum for either side in this litigation. This factor is neutral.

F The possibility of consolidating this case with the Pennsylvania action favors transfer significantly. "The

feasibility of consolidation is a significant factor in a transfer decision." AJ Industries Inc v US Dist Court for Central Dist of

Cal, 503 F2d 384 (9th Cir 1974), citing van Dusen v Barrack, 376 US 612 (1964). The first case is currently pending before the Eastern Even though, as plaintiffs contend, the

District of Pennsylvania.

aggrieved parties named in the instant action include only retirees instead of retirees plus the union (as in the Pennsylvania action), the two cases concern "[s]ubstantially the same parties, property, transaction, event or question of law," and "it appears likely that there will be an unduly burdensome duplication of labor and expense or conflicting results if the cases are conducted before different Judges." Civ LR 3-12(b); Continental Grain Co v The FBL-585, 364 But see Goldstein v RadioShack Corp, 2007 WL

US 19, 26 (1960).

1342533 at *5 (ED Tex 2007) (denying transfer to a district with a similar but later-filed case because the proceedings in the transferee district were "in an early posture and no class ha[d] been certified"). transfer. 13 This factor weighs strongly in favor of

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This factor also weighs against the alternative of denying transfer but staying this action pending the outcome of proceedings in Pennsylvania. Consolidation of all related claims

and interested parties in one district would materially advance ultimate resolution of the issues at bar.

G The Eastern District of Pennsylvania has a substantially greater interest in the controversy. Transfer to the district with

the greatest stake in the matter serves the public interest: "In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home." Gulf Oil Corp v Gilbert, 330 US 501, 508-09 (1947).

Many of the events in the dispute, particularly the negotiation of the collective bargaining agreement, took place in the Eastern District of Pennsylvania. Doc #21 at 10; Doc #29 at 20.

Although plaintiffs are injured here and accordingly the Northern District of California has an interest in vindicating its residents' rights, the same is true of the Eastern District of Pennsylvania. In this regard, that district's interest in the case

­ protecting the rights of its retiree citizens and its corporations ­ is very strong. Of the putative class, 2466 live in

the Eastern District of Pennsylvania, whereas only 13 live in this district. Expressed as a percentage, 43% of the class lives in the

Eastern District of Pennsylvania, whereas 0.2% of the class lives in the Northern District of California. 14 The putative class members

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are not scattered across the country ­ 43% live in the Eastern District of Pennsylvania, 61% live in Pennsylvania, 89% live within 250 miles of the courthouse in Reading, Pennsylvania and 98% of the class lives east of the Mississippi River. Doc #49 at 1. Because

the putative class members do not reside in this district in any significant number, and because an overwhelmingly greater number of putative class members reside in the Eastern District of Pennsylvania, the latter district has a substantially greater interest in this case. (9th Cir 1987). The substantially greater interest in the controversy in Pennsylvania than in northern California implicates "interest of justice" and institutional considerations adverted to earlier in this order. As litigants depend on courts to adjudicate disputes, Compare Lou v Belzberg, 834 F2d 730, 739

courts depend on acceptance of their decisions in order to perform the function of resolving disputes. Implicit in this is the

exercise of some restraint by courts in not reaching out to adjudicate a dispute whose center of gravity lies elsewhere, even if as a purely legal matter the court can exercise jurisdiction over that dispute. The present case would appear to be one that

calls for such restraint. Accordingly, this factor and the institutional considerations implicit in it weigh strongly in favor of transfer.

H Neither party suggests that either district's docket is more congested than the other, and accordingly this factor is neutral. 15

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III Overall, the court finds that the possibility of consolidation with an earlier-filed action and the local interest in the litigation weigh strongly in favor of transfer. The

interests of the witnesses weighs in favor of transfer, but not strongly. The plaintiffs' choice of forum and the convenience of Considering all of the

the parties weigh against transfer.

factors, and notwithstanding the very able arguments to the contrary of plaintiffs' counsel, the court concludes nonetheless that defendants have met their burden of establishing that transfer to the Eastern District of Pennsylvania is necessary for the convenience of the parties and witnesses and in the interest of justice. Accordingly, defendants' motion to change venue to the Under the

Eastern District of Pennsylvania (Doc #20) is GRANTED.

circumstances, the court does not reach plaintiffs' motion for a preliminary injunction and finding it moot directs the clerk to terminate that and any other pending motions.

VAUGHN R WALKER United States District Chief Judge

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