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Fred H. Altshuler (SBN 43878) Linda Lye (SBN 215584) Jamie L. Crook (SBN 245757) ALTSHULER BERZON LLP 177 Post Street, Suite 300 San Francisco, CA 94109 Telephone: (415) 421-7151 Facsimile: (415) 362-8064 E-Mail: [email protected] E-Mail: [email protected] E-Mail: [email protected] Attorneys for Plaintiffs Robert M. Evitt, Sr., Joel Ortega, Loretta Evitt, and the proposed Plaintiff Class

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO/OAKLAND DIVISION ROBERT M. EVITT, Sr., JOEL ORTEGA, and LORETTA EVITT, on behalf of themselves and a class of those similarly situated, ) ) ) ) ) ) Plaintiffs, ) ) v. ) ) MACK TRUCKS, INC., AND MACK ) HEALTH, DISABILITY, AND LIFE BENEFITS FOR UAW EMPLOYEES PLAN, ) ) ) Defendants. _____________________________________ ) Case No. C-07-4830 VRW PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS' MOTION TO TRANSFER VENUE Date: November 1, 2007 Time: 2:30 pm Ctrm: Courtroom 6, 17th Floor The Honorable Vaughn R. Walker

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TABLE OF CONTENTS INTRODUCTION AND SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 FACTUAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 I. Mack's Anticipatory Effort To Adjudicate Plaintiffs' Rights In A Defendant Class Declaratory Judgment Action ­ Filed Against Different Parties At Virtually The Same Time As This Case ­ Takes No Priority Over This Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 A. B. The Threshold "First-To-File" Factors Are Not Present. . . . . . . . . . . . . . . . . . . . . . . 9 Mack Engaged In Forum Shopping By Filing An Anticipatory Declaratory Judgment Defendant Class Action In Pennsylvania. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

The Balance Of Inconvenience And The Interest Of Justice Weigh Overwhelmingly Against Transfer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 A. Defendant Bears The Heavy Burden Of Demonstrating That The Transferee Forum is "Substantially Superior.". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 The Relevant Factors Strongly Favor Plaintiffs' Choice Of Forum. . . . . . . . . . . . . 15 Plaintiffs' Choice Of Forum Is Entitled To Substantial Weight. . . . . . . . . 15 All Parties Have Substantial Contacts In California And The Balance of Inconveniences Tips Sharply In Plaintiffs' Favor. . . . . . . . . . . . . . . . . . . . . 17 Plaintiffs' claims arise in California. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Transfer would not increase convenience of and access to third-party witnesses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Transfer will not increase access to sources of proof. . . . . . . . . . . . . . . . . . 24 California has a strong interest in deciding this controversy. . . . . . . . . . . . 24 The interest of justice weighs strongly against transfer. . . . . . . . . . . . . . . . 24

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

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TABLE OF AUTHORITIES FEDERAL CASES Allied Chemical & Alkali Workers of America v. Pittsburgh Plate Glass Co., 404 U.S. 157 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 13 Alltrade, Inc. v. Uniweld Products, Inc., 946 F.2d 622 (9th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11 America Federal of Grain Millers v. International Multifoods Corp., 116 F.3d 976 (2d Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Brotherhood of Trustees v. Baylor Heating & Air Conditioning, Inc., 702 F. Supp. 1253 (E.D. Vir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 21, 23 CNH America LLC v. UAW, No. 04-C-0148 (E.D. Wis. Aug. 3, 2004) . . . . . . . . . . . . . . . . . . . . . 10 Capital Records, Inc. v. Optical Recording Corp., 810 F. Supp. 1350 (S.D.N.Y. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Cedars-Sinai Medical Ctr. v. Shalala, 125 F.3d 765 (9th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Cochran v. NYP HoIdings, Inc., 58 F. Supp. 2d 1113 (C.D. Cal. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 21 Commodity Fut. Trading Commission v. Savage, 611 F.2d 270 (9th Cir. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 15 Core-Vent Corp. v. Nobel Industrial AB, 11 F.3d 1482 (9th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Decker Coal v. Commonwealth Edison, 805 F.2d 834 (9th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 14, 15 Defrancesco v. First Horizon Home Loan Corp., 2006 U.S. Dist. LEXIS 80781, 2006 WL. 3196838 (S.D. Ill. Nov. 3, 2006) . . . . . . 3, 17, 23 E. & J. Gallo Winery v. F. & P. S.p.A., 899 F. Supp. 465 (E.D. Cal. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 14, 18 Ellis v. Costco Wholesale Corp., 372 F. Supp. 2d 530 (N.D. Cal. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215 (2d Cir. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 First Franklin Finance Corp. v. Mortgage Academy, Inc., 2006 U.S. Dist. LEXIS 76109, 2006 WL. 3734624 (N.D. Cal. Dec. 18, 2006) . . . . . . . . . 22 Florens Container v. Cho Yang Shipping, 245 F. Supp. 2d 1086 (N.D. Cal. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

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Goldstein v. RadioShack Corp., 2007 U.S. Dist. LEXIS 32278, 2007 WL. 1342533 (E.D. Tex. May 1, 2007) . . 3, 17, 20, 23 Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Holland v. Psychological Assessment Resources, Inc., 2004 WL 964201 (D. Md. April 27, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 International Brotherhood of Painters & Allied Traders Union v. Best Painting & Sandblasting Co., Inc., 621 F. Supp. 906 (D.D.C. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 International Brotherhood of Teamsters v. N. America Airlines, 2005 WL 947083 (N.D. Cal. Apr. 20, 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Jones v. GNC Franchising, Inc., 211 F.3d 495 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Langford v. Ameritanz, 2006 U.S. Dist. LEXIS 32823, 2006 WL. 1328223 (E.D. Cal. May 13, 2006) . . . . . . . . 2, 21 Miracle v. N.Y.P. Holdings, Inc., 87 F. Supp. 2d 1060 (D. Hawaii 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19 Munoz v. UPS Ground Freight, Inc., 2007 U.S. Dist. LEXIS 47537, 2007 WL. 1795696 (N.D. Cal. June 20, 2007) . . . . . passim Pacesetter System, Inc. v. Medtronic, Inc., 678 F.2d 93 (9th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Peterman v. United States, 2006 WL 2806417 (N.D.N.Y. Sept. 28, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 21 Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Rene v. Godwin Gruber, LLP, 2005 WL 1871117 (W.D. Wash. Aug. 2, 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 STX, Inc. v. Trik Stik, Inc., 708 F. Supp. 1551 (N.D. Cal. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 21, 22 Saleh v. Titan Corp., 361 F. Supp. 2d 1152 (S.D. Cal 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Sec. & Exch. Common v. Rose Fund, LLC, 2004 U.S. Dist. LEXIS 22491, 2004 WL. 2445242 (N.D. Cal. Jan 9, 2004) . . . . . . . . . 2, 22 Smith+Noble v. S. Jersey Vinyl, Inc., 1998 U.S. Dist. LEXIS 15930, 1998 WL. 650079 (C.D. Cal. May 11, 1998) . . . . . . . . . . 24 Stomp, Inc. v. NeatO, LLC, 61 F. Supp. 2d 1074 (C.D. Cal. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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U.S. v. One Oil Painting Entitled "Femme en Blanc,", 362 F. Supp. 2d 1175 (C.D. Cal. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Van Dusen v. Barrack, 376 U.S. 612 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Varsic v. U.S. District Ct., 607 F.2d 245 (9th Cir. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 20 Voluntary Employees Beneficiary Association for Employees of Independent Electric Supply, Inc. v. Ross, 1994 U.S. Dist. LEXIS 13553, 1994 WL. 544481 (N.D. Cal. Sept. 22, 1994) . . . . . . . . . . 16 Winnett v. Caterpillar, Inc., 2006 U.S. Dist. LEXIS 95973, 2006 WL. 1722434 (M.D. Tenn. June 20, 2006) . . . . . . . . 17 Xoxide, Inc. v. Ford Motor Co., 448 F. Supp. 2d 1188 (C.D. Cal. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 9, 11, 12 Z-Line Designs, Inc. v. Bell'O International LLC, 218 F.R.D. 663 (N.D. Cal. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Zeta-Jones v. Spice House, 372 F. Supp. 2d 568 (C.D. Cal. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Zide Sport Shop of Ohio, Inc. v. Ed Tobergte Assocs., Inc., 16 F. App'x 433, 438 (6th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 STATUTES AND RULES

16 28 U.S.C. § 1404(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 17 28 U.S.C. § 1406 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 18 29 U.S.C. § 185 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 19 29 U.S.C. § 1132 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 5, 14, 16 20 Fed. R. Civ. P. 23(c)(2)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 21 Local Rule 3-4(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 22 23 24 25 26 27 28
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INTRODUCTION AND SUMMARY OF ARGUMENT Defendants promised to provide Plaintiffs with "lifetime" medical benefits, but now seek to break that promise. Plaintiffs Robert Evitt, Loretta Evitt, and Joel Ortega brought suit here, in the Northern District of California ­ the judicial district in which they reside and receive their medical benefits ­ to prevent Defendants from terminating or reducing those benefits. Any breach by Defendants of their promise to Plaintiffs will harm Plaintiffs in this judicial district. Congress intended elderly retirees to be able to bring suit to enforce their rights under the Employee Retirement Income Security Act ("ERISA"), as Plaintiffs seek to do here, "where the breach took place." 29 U.S.C. §1132(e)(2). Defendants have utterly failed to meet their "heavy burden" of demonstrating "by particular circumstances" that the Northern District of California is so "inappropriate" a venue and the Eastern District of Pennsylvania is so "substantially superior" a forum as to warrant upsetting Plaintiffs' choice of their home forum.1 Indeed, the balance of inconvenience and the interest of justice weigh overwhelmingly in favor of this case proceeding in this judicial district. First, there is nothing "inappropriate" about this forum. Commodity Fut. Trading Comm'n v. Savage, 611 F.2d 270, 279 (9th Cir. 1979). Plaintiffs have a substantial connection to this forum and little or no connection to Pennsylvania, where Defendants seek to transfer this case: They have lived for decades here, worked for Mack here, accrued their right to retiree health care based on their employment here, receive medical benefits under the Plan here, were informed by Mack that it intended to reduce their benefits here, and would suffer any reductions of or terminations in their healthcare here. Under these circumstances, Congress expressly authorized Plaintiffs to bring suit here. 29 U.S.C. §1132(e)(2). Mr. and Mrs. Evitt have never set foot in Pennsylvania. Mr. Ortega
1

See Decker Coal v. Commonwealth Edison, 805 F.2d 834, 843 (9th Cir. 1986) (defendant "must make a strong showing of inconvenience to warrant upsetting" plaintiff's choice of forum); Commodity Fut. Trading Comm'n v. Savage, 611 F.2d 270, 279 (9th Cir. 1979) (party seeking transfer must "justify by particular circumstances that the transferor forum was inappropriate"); Munoz v. UPS Ground Freight, Inc., 2007 U.S. Dist. LEXIS 47537, 2007 WL 1795696, at *4 (N.D. Cal. June 20, 2007) (moving party must show that transferor forum is "substantially superior"); E. & J. Gallo Winery v. F. & P. S.p.A., 899 F. Supp. 465, 466-67 (E.D. Cal. 1994) ("heavy burden of showing a clear balance of inconveniences").
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was last in Pennsylvania 23 years ago and is not in touch with anyone in that state. While Plaintiffs have a strong connection to California and little or no connection to Pennsylvania, Defendants have connections to both fora. Mack operated a manufacturing facility here for a decade and a half, and continues to conduct substantial sales here. Moreover, the balance of inconvenience tips sharply in Plaintiffs' favor. Plaintiffs are all elderly retirees with serious medical conditions, for whom travel would impose enormous hardship. Defendants have not even attempted to claim that litigation in California would impose on them hardship of any kind. Second, Defendants have plainly failed to meet their burden of showing ­ and the record negates the possibility ­ that Pennsylvania is a substantially superior forum. Munoz v. UPS Ground Freight, Inc., 2007 U.S. Dist. LEXIS 47537, 2007 WL 1795696, at *4 (N.D. Cal. June 20, 2007). The primary justification for overturning a plaintiff's choice of forum is convenience of the witnesses, particularly third-party witnesses. A party seeking to transfer must specifically identify the witnesses it intends to call, and also describe their location, the subject of their testimony, and its relevance to the case. See Cochran v. NYP HoIdings, Inc., 58 F. Supp.2d 1113, 1119 (C.D. Cal. 1998); Int'l Bhd. of Teamsters v. N. Am. Airlines, 2005 WL 947083, at *4 (N.D. Cal. Apr. 20, 2005) ("Teamsters");2 Sec. & Exch. Common v. Rose Fund, LLC, 2004 U.S. Dist. LEXIS 22491, 2004 WL 2445242, at *3 (N.D. Cal. Jan 9, 2004). The purpose of this inquiry is to determine if the defendant would be placed at an unfair disadvantage because a third-party witness with information crucial to the defense is not subject to compulsory process, and would be unwilling to appear voluntarily, in Plaintiffs' chosen forum. See Langford v. Ameritanz, 2006 U.S. Dist. LEXIS 32823, 2006 WL 1328223, at *9 (E.D. Cal. May 13, 2006). Defendants have failed to identify a single witness ­ let alone describe her location, her testimony, and its relevance. Because they "make[] only vague generalizations about the witnesses [they] intend[] to call," they have not "met [their] burden and [their] motion [must] be denied."

Plaintiffs cite several cases that were available on Westlaw but not on Lexis. For the Court's convenience, Plaintiffs have attached true and correct copies of these cases as obtained from Westlaw to their Request for Judicial Notice (hereinafter "RJN"). Teamsters, 2005 WL 947083, is attached thereto as Exhibit A.
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Peterman v. United States, 2006 WL 2806417, at *2 (N.D.N.Y. Sept. 28, 2006), RJN, Exh. B. In addition, the unidentified Pennsylvania witnesses to whom Defendants allude, located where Mack is headquartered and the Plan is administered, would be Defendants' employees. Defendants can compel their employees to testify here, and thus would suffer no prejudice if the case proceeds here. STX, Inc. v. Trik Stik, Inc., 708 F. Supp. 1551, 1556 (N.D. Cal. 1988). At the same time, Plaintiffs demonstrate that third-party witnesses with evidence relevant to Plaintiffs' claims, and whom Plaintiffs intend to call to testify, are not located in Pennsylvania and are willing to testify in California. Plaintiffs' rights to lifetime healthcare benefits arise out of collective bargaining agreements between Mack and the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO ("UAW"). The UAW is based in Michigan. UAW witnesses have relevant information about the bargaining history of the agreements at issue in this case. Although Defendants invoke UAW witnesses in support of transfer, Defendants nowhere assert they intend to call them, and their location actually undermines Defendants' position. The fact that these witnesses reside outside Pennsylvania, negates any showing that Pennsylvania is a "substantially superior forum." Munoz, 2007 U.S. Dist. LEXIS 47537, 2007 WL 1795696, at *4. And the willingness of these witnesses to testify in California undercuts any claims by Defendants that it would be inconvenient for them to testify here. Nor does the location of putative class members suffice to tip the scales in favor of transfer. This is so because Plaintiffs would face enormous hardships if the case were transferred, the existence of relevant witnesses outside Pennsylvania negates any showing that Pennsylvania is a "demonstrably more convenient" forum, and Plaintiffs, who receive their benefits in this district, will suffer harm in this district. See Goldstein v. RadioShack Corp., 2007 U.S. Dist. LEXIS 32278, 2007 WL 1342533, at *3, *5-*6 (E.D. Tex. May 1, 2007) (denying transfer, even though plurality of potential class members lived in transferee district, where defendant did not show foreign venue was "demonstrably more convenient" than plaintiff's chosen forum and harm by ERISA plaintiffs will be suffered where benefits received); Defrancesco v. First Horizon Home Loan Corp., 2006 U.S. Dist. LEXIS 80718, 2006 WL 3196838, at *2 (S.D. Ill. Nov. 3, 2006) (denying transfer, although

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plurality of potential class members resided outside plaintiffs' choice of forum, where plaintiff would suffer hardship in the event of transfer and location of potential class members was not "determinative as a measure of party convenience"); see also Ellis v. Costco Wholesale Corp., 372 F. Supp. 2d 530, 544 (N.D. Cal. 2005). Third, the equities weigh overwhelmingly in favor of this case proceeding in California. Defendants emphasize that Mack filed a declaratory judgment action in Pennsylvania before Plaintiffs filed this suit. In fact, there is every indication that Mack was engaging in blatant forum shopping and gamesmanship when it preemptively filed a declaratory judgment action and deployed the unusual device of a defendant class action. Anticipatory lawsuits are "disfavored because they are examples of forum shopping," "thwart settlement negotiations," and "precipitat[e] a disorderly race to the courthouse." Z-Line Designs, Inc. v. Bell'O Int'l LLC, 218 F.R.D. 663, 665 (N.D. Cal. 2003); see also id. ("The Declaratory Judgment Act is not to be invoked to deprive a plaintiff of his conventional choice of forum and timing."). Indeed, such suits are so disfavored that courts dismiss declaratory judgment actions that ­ although filed first ­ were preemptive efforts to deprive a plaintiff of its choice of forum. Id. at 667; Xoxide, Inc. v. Ford Motor Co., 448 F. Supp. 2d 1188, 1189 (C.D. Cal. 2006). Transferring this case to Pennsylvania would reward Mack for its gamesmanship. The motion to transfer should be denied. FACTUAL BACKGROUND Plaintiffs have substantial connections to northern California. All three plaintiffs reside in the Northern District of California. Mr. and Mrs. Evitt live in Hayward, and have lived in California continuously for the last 44 years. Robert Evitt Decl. at ¶2; Loretta Evitt Decl. at ¶2.3 Mr. Ortega lives in Milpitas, and has lived in California for a total of 45 years. He has lived in California continuously for the last 23 years. Ortega Decl. at ¶2. Mr. Evitt and Mr. Ortega both worked at Mack's plant in Hayward, California for approximately a decade and a half. Robert Evitt Decl. ISO TRO & PI at ¶4 (Doc. 8); Joel Ortega Decl. ISO TRO & PI at ¶4 (Doc. 9). Based on their

Unless otherwise indicated, all declarations cited in this brief are declarations, filed herewith, in opposition to Defendants' Motion to Transfer.
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employment for Mack in Hayward, California, they accrued their rights to medical coverage under Mack's group health plan ­ Defendant Mack Health, Disability and Life Benefits for UAW Employees ("Mack Plan") ­ for themselves and their dependents. All three Plaintiffs receive medical benefits, pursuant to their coverage under Defendant Mack Plan, here in northern California. They visit doctors in Hayward, Union City, Milpitas, San Jose, and Fremont, and purchase prescription drugs at pharmacies in the Hayward and Milpitas/San Jose areas. Ortega Decl. at ¶5; Robert Evitt Decl. at ¶4; Loretta Evitt Decl. at ¶4. In August 2007, Mack mailed an announcement to Plaintiffs at their respective homes in Hayward and Milpitas that it intended to reduce substantially their healthcare benefits. Robert Evitt Decl. ISO TRO & PI at ¶8; Ortega Decl. ISO TRO & PI at ¶9. Neither Mr. Evitt nor Mrs. Evitt has ever set foot in Pennsylvania. Mr. Ortega has not been in Pennsylvania since 1984. None of the Plaintiffs has any personal contacts in Pennsylvania. Ortega Decl. at ¶4; Robert Evitt Decl. at ¶3; Loretta Evitt Decl. at ¶3. Plaintiffs' claims arise entirely out of conduct occurring in California. Plaintiffs contend that any reduction or termination by Defendants in their medical benefits without their consent violates Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, and Section 502 of the ERISA, 29 U.S.C. § 1132. Plaintiffs currently receive medical benefits in Union City, Hayward, Milpitas, San Jose, and Fremont, California. Defendant announced that it intends to reduce these medical benefits, effective April 1, 2008, by sending a letter to Plaintiffs at their homes in Hayward and Milpitas, California. If Defendants ultimately terminate or reduce Plaintiffs' health insurance coverage, Plaintiffs will cease receiving medical benefits, or experience reductions in these benefits, in Hayward, Milpitas, San Jose, and Fremont, California. In short, all of the complained-of conduct by Defendants has occurred, will occur, and will harm Plaintiffs in this judicial district. Defendants have substantial resources and connections to California. Defendant Mack is an international corporation with substantial resources. "[O]ne of North America's largest producers of heavy-duty trucks," it posted profits in 2006 of approximately $400 million. Bressler Decl. at ¶5; Crook Decl. at ¶ 12.

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In addition, Mack has a substantial connection to and presence in California. Mack operated a manufacturing plant in Hayward, California for approximately a decade and a half ­ where Plaintiffs Robert Evitt and Joel Ortega both worked. Evitt Decl. ISO TRO & PI at ¶ 4; Ortega Decl. ISO TRO & PI at ¶ 4. At the time this complaint was filed, Mack shipped its trucks to be sold at eleven dealer locations in California, including two dealerships in this District. Mack conducts sales operations out of California, providing a toll free calling number for "Mack Sales of Southern California." Crook Decl. at ¶ 12. Moreover, over two dozen Mack retirees and their beneficiaries, in addition to the named plaintiffs, reside in California and receive benefits under the Mack Plan in California. Correll Decl. ISO Defs.' Mot. To Transfer, Exh. A (Doc. 25). Third-party witnesses reside outside Pennsylvania. Plaintiffs' vested rights to lifetime healthcare benefits coverage under the Mack Plan at company expense arise out of collective bargaining agreements between Mack and the UAW. As set forth in Plaintiffs' memorandum in support of their motion for a preliminary injunction, Mack and the UAW adopted language in the multiple collective bargaining agreements that stated: "The Company fully recognizes, acknowledges and hereby confirms that retiree health care benefits for Mack-UAW employees have been and will continue to be lifetime benefits . . . ." See Pltfs.' Mem. ISO Mot. for Prel. Inj. at 6-7 & App. A (Doc. No. 6). UAW witnesses, who are third-parties to this case, participated in the negotiation of these agreements, have relevant information about the parties' mutual understanding and agreement regarding Mack's on-going obligation to provide lifetime retiree healthcare benefits. Plaintiffs' initial investigation has already revealed at least two such third-party witnesses. Stephen L. Jones and Robert Evans both served on the UAW negotiating team over the 2004 collective bargaining agreement between Mack and the UAW. Mr. Evans resides in Detroit, Michigan and Mr. Jones resides in Warren, Michigan. These witnesses have personal knowledge of relevant bargaining history: Their testimony will show that the oral and written communications exchanged by the Union and Mack made clear that the parties intended retiree healthcare benefits to be lifetime benefits and that those benefits did not and would not expire upon the expiration of any

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collective bargaining agreement. These witnesses do not reside in Pennsylvania, and are willing to testify in California. Evans Decl. at ¶3, 5; Jones Decl. at ¶1, 3-4. Defendants sought to deprive Plaintiffs of their right to select their forum by filing a preemptive declaratory judgment action in Pennsylvania. In a letter dated August 16, 2007, Mack notified UAW retirees and surviving spouses of its intention to implement unconsented-to reductions of their medical coverage. Doyle Decl. ISO TRO & PI, Exhs. A & B (Doc. 10). The UAW immediately responded, in a letter to Mack on August 17, 2007, that it "adamantly oppose[d]" Mack's threatened changes. Bressler Decl., Exh. A. The UAW further announced that it would "utilize every possible resource to ensure that . . . retiree rights are protected." Id., Exh B.4 But before the retirees or the UAW had any opportunity to respond to Mack's announced changes, Mack preemptively filed a declaratory judgment action in the Eastern District of Pennsylvania on September 7, 2007. Defs.' RJN at ¶1 (Doc. 24). Mack named as defendants the UAW, five UAW locals, and one retiree, Carl C. Breininger, "in his individual capacity and as a representative of [a defendant class of] all Mack retirees and their surviving spouses and dependents, as well as all surviving spouses and dependents of deceased retirees and deceased employees who are receiving the health benefit coverage for Retired Employees and Surviving Spouses provided by the Mack-UAW Insurance Program." Id., Exh. A at ¶¶2-7, 9. Mack concedes that it filed suit in Pennsylvania "in response" to the UAW's announced opposition to Mack's announced benefit reductions. Defs.' Mem. In Opp. to Pltfs.' Mot. for Prel. Inj. at 2, 6 (Doc. No. 26); see also Defs.' Mem. ISO Mot. To Transfer, at 2 (Doc. 21) (hereinafter "Defs.' Mem.") ("Because of the UAW's adamant opposition to Mack's proposed changes to retire benefits, . . . Mack filed an action for declaratory judgment."). In the Pennsylvania action, Mack contends that it "owes no legal duty to the Unions or the defendant Class to continue the Mack-UAW Retiree Medical Program after October 1, 2007" when

The UAW's statement that it would "utilize every possible resource to . . . protect retiree rights" was set forth in a letter to retirees. Bressler Decl. Exh. B. Mack was clearly aware of this statement, as the Complaint it subsequently filed in federal quote quotes this letter virtually verbatim. See Defs.' RJN, Exh. A. at ¶18.
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the current collective bargaining agreement expires, and is therefore "free to implement the [changes announced in its August 17, 2007 letter] or to otherwise change the plan of health benefits presently provided to the defendant Class under the Mack-UAW Retiree Medical Program." Defs.' RJN, Exh. A at ¶26 (emphasis added). Through the unusual device of a defendant class action, Mack seeks to bind all Mack retirees, surviving spouses, and their dependents to a judgment in that case. In light of the drastic legal position that Mack staked out ­ that it had no legal duty to continue to provide retiree healthcare once the current collective bargaining agreement expires ­ and because the agreement was about to expire on October 1, 2007, it appeared that Mack might seek to reduce or perhaps even entirely terminate benefits as early as October 1, 2007. Plaintiffs therefore filed this action on September 20, 2007, in the judicial district in which they reside and receive benefits, to protect their vested rights to healthcare. See Complaint (Doc. No. 1).5 Only thirteen days separates the filing of the two actions. At the hearing on Plaintiffs' motion for a temporary restraining order in this case, Defendants agreed to represent on the record that they would not implement any reductions until April 1, 2008. 9/25/2007 Transcript (Doc. 16). Litigation has not progressed in Mack's Pennsylvania action. Mack filed the action on September 7, 2007, and then waited almost four weeks to serve the defendants in that action. It did not serve any defendant in the Pennsylvania case until October 4, 2007, Bressler Decl. at ¶4, just two court days before it filed the motion to transfer venue in this action.6 ARGUMENT I. Mack's Anticipatory Effort To Adjudicate Plaintiffs' Rights In A Defendant Class Declaratory Judgment Action ­ Filed Against Different Parties At Virtually The Same Time As This Case ­ Takes No Priority Over This Action. In an effort to preempt the retirees and the UAW from filing suit and to bind Plaintiffs and all Mack retirees, surviving spouses, and dependents through a putative defendant class action,

According to a declaration submitted by Defendants in opposition to Plaintiffs' motion for a preliminary injunction, Mack and the UAW have since agreed to extend the current collective bargaining agreement until October 31, 2007. Huxta Decl. ISO Defs.' Opp. to Pltfs.' Mot. for Prel. Inj. at ¶2 (Doc. 27).
6

5

Defendants' motion was filed on October 8, 2007. Defs.' Mot. To Transfer (Doc. 20). 8

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Mack rushed to court in Pennsylvania. This Court should not countenance Mack's gamesmanship. Its anticipatory suit for a declaratory judgment against a defendant class is a classic case of forum shopping and is owed no deference or priority over this action. Moreover, the differences between the two cases demonstrate that this case is the superior vehicle for resolving the underlying question of Mack's legal obligations to retirees. Mack's reliance on the "first-to-file" principle is misplaced. The principle reflects a doctrine of federal comity that "permits a district court to decline jurisdiction over an action when a complaint involving the same parties and issues has already been filed in another district." Pacesetter Sys., Inc. v. Medtronic, Inc., 678 F.2d 93, 94-95 (9th Cir. 1982). It "is not a rigid or inflexible rule to be mechanically applied, but rather is to be applied with a view to the dictates of sound judicial administration." Id. at 95. Even when the three threshold factors ­ chronology, same parties, and same issues ­ are met, a court will dispense with the rule when equity so requires, for example "when the filing of the first suit evidences bad faith, anticipatory suit, or forum shopping," Xoxide, Inc. v. Ford Motor Co., 448 F. Supp. 2d 1188, 1192 (C.D. Cal. 2006); see also Alltrade, Inc. v. Uniweld Prods., Inc., 946 F.2d 622, 628 (9th Cir. 1991), or when "the balance of convenience [weighs] in favor of the second action," Capitol Records, Inc. v. Optical Recording Corp., 810 F. Supp. 1350, 1353 (S.D.N.Y. 1992). A. The Threshold "First-To-File" Factors Are Not Present.

Defendants cannot establish any of the three threshold factors for application of the first-tofile principle. The chronology factor receives little or no consideration where, as here, just thirteen days separate the filings of the two complaints. See Capital Records, 810 F. Supp. at 1366 (explaining that chronology of filing is "less important . . . when the competing actions are filed within a short period of time" and rejecting first-to-file rule because "[o]nly twenty days elapsed between the filing of the two complaints and no discovery or other pretrial proceedings had occurred in either forum at that time"); see also Z-Line Designs, Inc. v. Bell'O Int'l LLC, 218 F.R.D. 663, 66 (N.D. Cal. 2003) ("Considering this relatively short time period between the two filings, the importance of the earlier filing date is diminished.").

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Equally to the point, the parties and the issues in the two actions are not the same. See Cedars-Sinai Med. Ctr. v. Shalala, 125 F.3d 765, 769 (9th Cir. 1997) (requiring that the actions involve "the same parties and issues"). And the parties and issues that are encompassed by this action demonstrate that this case is the better vehicle for resolving the underlying question of Mack's obligation to provide lifetime healthcare benefits. In addition to Mack, the Mack Plan is a named defendant in Plaintiffs' ERISA claim in this case because Plaintiffs seek to prevent both Mack and the Plan from terminating or reducing their benefits under the Plan. But the Mack Plan is not a named party to the Pennsylvania action and thus might not automatically be bound to any judgment issued in that case. Inclusion of the Mack Plan in this case thus facilitates a prompt and thorough resolution of Plaintiffs' rights under the Plan. Moreover, the Pennsylvania action was brought by Mack against the UAW, five UAW locals, and an individual as the representative of a purported defendant class.7 None of the defendants in the Pennsylvania action is a party in this case. Mr. Breininger, the individual defendant in the Pennsylvania action, is not a party here. Because the putative defendant class in the Pennsylvania action has not yet been certified, there is no argument that Mr. Breininger is somehow in privity with any of the Plaintiffs in this case. Nor is any of the union entities a plaintiff here. Although Defendants contend the "crux" of this case is a dispute between Mack and the UAW, Defs.' Mem. at 1, this case is really about the

The union is an improper defendant for Mack's ERISA claim in the Pennsylvania action. Section 502(a)(1) and (3) only provide a cause of action to plan participants, beneficiaries, and fiduciaries in order to enforce the terms of an ERISA plan. Mack is neither a plan participant or beneficiary: to the extent it is suing as a fiduciary, it cannot enforce the terms of the plan it administers against the union or Mr. Breininger. The Eastern District of Wisconsin recently dismissed an ERISA claim brought by an employer against a union and several locals, through which the employer sought a declaratory judgment that retirees' healthcare benefits were not vested. See CNH America LLC v. UAW, No. 04-C-0148, at 1, 11 (E.D. Wis. Aug. 3, 2004), RJN, Exh. C (dismissing ERISA claim for lack of jurisdiction because "an action seeking such relief is not an action seeking `enforcement' of the plan"). The court likewise dismissed the employer's claim for a declaratory judgment that it owed no duty under Section 301 of the LMRA to provide lifetime, vested healthcare benefits to retirees under the terms of the applicable collective bargaining agreement because the employer had not alleged a violation of the collective bargaining agreement and because the Union had no authority to "`hijack' the retirees' claim" to vested benefits. Id. at 14.
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vested right of Mack retirees to healthcare benefits. Because the right to medical benefits are vested in the retirees, these rights cannot be reduced or terminated without their consent ­ and any "agreement" by the Union to modify those vested rights would be invalid. See, e.g., Allied Chem. & Alkali Workers of Am. v. Pittsburgh Plate Glass Co., 404 U.S. 157, 181 n.20 (1971) ("Vested retirement rights may not be altered without the pensioner's consent.") (emphasis added). This case is therefore the superior vehicle for resolving Mack's obligations with regard to healthcare because it focuses on the retirees, without whose consent no reductions or terminations can be effected. B. Mack Engaged In Forum Shopping By Filing An Anticipatory Declaratory Judgment Defendant Class Action In Pennsylvania.

Equity weighs overwhelmingly in favor of allowing this action to proceed, rather than giving 10 the Pennsylvania action any priority. The Ninth Circuit recognizes an exception to the first-to-file 11 principle when the circumstances indicate "bad faith, anticipatory suit, and forum shopping." 12 Alltrade, 946 F.2d at 628. "A suit is anticipatory when the plaintiff filed upon receipt of specific, 13 concrete indications that a suit by defendant was imminent." Z-Line Designs, 218 F.R.D. at 665; 14 see also Xoxide, 448 F. Supp.2d at 1193. Such suits are "disfavored because they are examples of 15 forum shopping" and "thwart settlement negotiations." Z-Line Designs, 218 F.R.D. at 665. 16 "Further, [t]he Declaratory Judgment Act is not to be invoked to deprive a plaintiff of his 17 conventional choice of forum and timing, precipitating a disorderly race to the courthouse." Id. As 18 this Court explained in Z-Line Designs, "[p]otential plaintiffs should be encouraged to attempt 19 settlement discussions . . . prior to filing lawsuits without fear that the defendant will be permitted to 20 take advantage of the opportunity to institute litigation in a district of its own choosing before the 21 plaintiff files a complaint." Id. (quoting Capitol Records, 810 F. Supp. at 1354). 22 Given the disfavor with which courts view anticipatory suits, courts have dismissed 23 declaratory judgment actions that were ­ although filed first ­ preemptive efforts to deprive the 24 natural plaintiff of its choice of forum. In Z-Line Designs, this Court dismissed a first-filed action, 25 concluding the suit to be anticipatory based on the fact that it was a declaratory judgment action 26 triggered by correspondence in which the other party asserted its copyright and trade dress rights. 27 Id. at 664, 667. Similarly, in Xoxide, the Central District of California dismissed a first-filed 28
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declaratory judgment action that was "preemptively filed" following an exchange of letters between the parties asserting violations of trademark rights: The suit was "initiated in anticipation of Ford's Michigan litigation and was a clear attempt to deprive Ford, the natural plaintiff, of its choice of forum." 448 F. Supp. 2d at 1189. Mack's declaratory judgment action in Pennsylvania was clearly an anticipatory suit intended to deprive Plaintiffs of their choice of forum. By filing suit on September 7, 2007, just 22 days after the date of its August 16, 2007 mailing to retirees and surviving spouses of its intended reductions in their healthcare benefits, Mack preempted the natural plaintiffs ­ the retirees ­ from even "attempt[ing] settlement discussions" in response to Mack's letter. Z-Line Designs, 218 F.R.D. at 665. Particularly telling is Mack's surreptitious deployment of a defendant class action. This device would enable Mack to litigate the rights of Plaintiffs and other retirees and surviving spouses, and ultimately to bind them to a declaratory judgment that it owes them "no legal duty" ­ but without having to serve them with the complaint in the Pennsylvania case, or indeed to notify them of the litigation at all, until the defendant class is actually certified and notice issued to the class. See Xoxide, 448 F. Supp. 2d at 1194 (rejecting first-to-file rule when party "secretly" filed a lawsuit so as to "`keep our place as to filing dates and times' in the event that `discussions later broke down'"); Fed. R. Civ. P. 23(c)(2)(A) (order certifying Rule 23(b)(1) class may include "appropriate notice to the class"). By filing suit in Pennsylvania, Mack also deprived the entity that Defendants believe to be the "natural plaintiff" ­ the UAW ­ of its choice of forum.8 After the UAW put Mack on notice that it "adamantly oppose[d]" any reductions in retiree health care and would "utilize every possible resource" to protect retiree benefits, Mack preempted the UAW from filing suit and instead rushed to court in its home forum to file a declaratory judgment action ­ even though it was at the time in negotiations with the UAW. Bressler Decl. at ¶¶2-3, Exhs. A & B; Defs.' RJN, Exh. A; Bressler

According to Defendants, the "crux" of the matter is a dispute between Mack and the UAW. Defs.' Mem. at 1. Plaintiffs believe that they are the true natural plaintiffs in this case because their vested rights to healthcare benefits cannot be reduced without their consent. See, e.g., Allied Chem. & Alkali Workers, 404 U.S. at 181 n.20.
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Decl. ISO TRO & PI at ¶16. Indeed, Defendants concede that Mack filed the Pennsylvania action "in response" to the UAW's position that it "vehemently opposed the proposed changes." Defs.' Mem. In. Opp. to Pltfs.' Mot. for Prel. Inj. at 2; see also Defs.' Mem. at 2 (conceding that Mack filed its declaratory judgment action "[b]ecause of the UAW's adamant opposition" to its proposed changes). By rushing to court in Pennsylvania, Mack also short-circuited any discussions with the union that might have resolved the issue.9 Mack's delay in serving any of the Pennsylvania defendants until just two court days before bringing the instant motion to transfer this action to Pennsylvania further evidences "gamesmanship and procedural fencing." Zide Sport Shop of Ohio, Inc. v. Ed Tobergte Assocs., Inc., 16 F. App'x 433, 438 (6th Cir. 2001) (dismissing first filed suit because it was anticipatory).10 Mack's declaratory judgment action, preemptively filed before the natural plaintiffs, the retirees, even had the opportunity to "attempt settlement discussions," and also "filed upon receipt of specific, concrete indications that a suit by [the UAW] was imminent," was a classic example of forum shopping intended to deprive the UAW of its "conventional choice of forum and timing." ZLine Designs, 218 F.R.D. at 665. Given the ample indicia of Mack's gamesmanship in filing the Pennsylvania action, the equities weigh overwhelmingly in favor of this action proceeding.11 II. The Balance Of Inconvenience And The Interest Of Justice Weigh Overwhelmingly Against Transfer. Defendants have utterly failed to meet their heavy burden of showing that Plaintiffs' chosen

19 forum is inappropriate or that Pennsylvania is a superior forum. Neither the balance of 20 inconvenience nor the interest of justice weighs in favor of transfer. 21 22 23 24 25 26 27 28 The union lacks authority to consent on Plaintiffs' behalf to any reductions or terminations in their vested rights to healthcare benefits. It is possible, however, that the discussions between the union and Mack may have resolved the retiree healthcare issue without any reductions or terminations in retiree benefits.
10 9

Citation to the Federal Appendix is appropriate under Local Rule 3-4(a)(4).

Courts recognize an additional equitable exception to the first-to-file rule when the balance of convenience weighs in favor of the latter-filed cause of action. See id. at 665. As discussed more fully in the 28 U.S.C. § 1404(a) analysis, the balance in this case weighs strongly in favor of allowing this case to proceed in this judicial District. See infra Part II.
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The primary justification for overturning a plaintiffs' choice of forum is the convenience of witnesses, especially third-party witnesses. Defendants have not identified a single witness, stated her location, or described her testimony and its relevance ­ as they are required to do. Plaintiffs, by contrast, have thus far identified at least two third-party witnesses with relevant information about the bargaining history of the contracts at issue in this case. These witnesses, who are willing to testify in California, do not reside in Pennsylvania. Because the only third-party witnesses that have been identified reside outside Pennsylvania, Defendants cannot possibly establish that Pennsylvania is a substantially superior forum. At the same time, transfer of this case would pose significant hardship on Plaintiffs, who are elderly retirees with serious medical conditions and for whom travel poses enormous difficulties, whereas Defendants have made absolutely no showing that litigating in California would be burdensome on them. Furthermore, the interest of justice weighs strongly in favor of this case proceeding in California. By filing an anticipatory declaratory judgment action, Mack was the party that engaged in forum shopping. Transfer to Pennsylvania would, perversely, reward Mack's gamesmanship. A. Defendant Bears The Heavy Burden Of Demonstrating That The Transferee Forum is "Substantially Superior."

28 U.S.C. § 1404(a) authorizes a district court, "[f]or the convenience of parties and 17 witnesses, in the interest of justice, . . . [to] transfer any civil action to any other district or 18 19 transfer inconvenience from one party to another." Ellis v. Costco Wholesale Corp., 372 F. Supp. 20 2d 530, 541 (N.D. Cal. 2005); see also Van Dusen v. Barrack, 376 U.S. 612, 646 (1964) ("Section 21 1404(a) provides for transfer to a more convenient forum, not to a forum likely to prove equally 22 convenient or inconvenient."). To justify transfer, Defendants must "make a strong showing of 23 inconvenience to warrant upsetting the plaintiff's choice of forum." Decker Coal Co. v. 24 Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986); E. & J. Gallo Winery v. F. & P. 25 26 27 28 There is no dispute that venue is proper in this district. See, e.g., 29 U.S.C. §1132(e)(2). Defendants did not file a motion under 28 U.S.C. § 1406 (authorizing dismissal for improper venue) and have not argued in their transfer motion that venue in this district is improper.
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division where it might have been brought."12 "[S]ection 1404(a) is not a mechanism by which to

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S.p.A., 899 F. Supp. 465, 466-67 (E.D. Cal. 1994) ("heavy burden of showing a clear balance of inconveniences"). As this Court has explained, "Defendants must show that the Eastern District of [Pennsylvania] is a substantially superior forum to prevail on its Transfer Motion." Munoz, 2007 U.S. Dist. LEXIS 47537, 2007 WL 1795696, at *4 (emphasis added). To succeed in overcoming Plaintiffs' forum preference, Defendants must demonstrate "by particular circumstances" that Plaintiffs' chosen forum is actually "inappropriate." Commodity Fut., 611 F.2d at 279. "[V]enue can exist in multiple locations," and plaintiffs' "chosen venue does not need to be the best venue." Rene v. Godwin Gruber, LLP, 2005 WL 1871117, at *2 (W.D. Wash. Aug. 2, 2005), RJN, Exh. D. Nor should the case be transferred if "transfer would merely shift rather than eliminate the inconvenience." Decker Coal, 805 F.2d at 843; see also U.S. v. One Oil Painting Entitled "Femme en Blanc," 362 F. Supp. 2d 1175, 1185 (C.D. Cal. 2005). B. The Relevant Factors Strongly Favor Plaintiffs' Choice Of Forum.

In considering a motion to transfer under 28 U.S.C. § 1404(a), a court must consider (1) plaintiffs' choice of forum; (2) the parties' contacts with the forum; (3) connection of the plaintiffs' cause of action to the chosen forum; (4) witnesses convenience; (5) access to proof; (6) local interest in deciding local controversies; and (7) the interest of justice. §1404(a); Jones v. GNC Franchising, Inc., 211 F.3d 495, 498­99 (9th Cir. 2000).13 These factors all weigh in Plaintiffs' favor. 1. Plaintiffs' Choice Of Forum Is Entitled To Substantial Weight.

Plaintiffs chose to file this case in the Northern District of California, the judicial district in which they reside and receive their benefits, and their choice is entitled to substantial weight. "[A] plaintiff's choice of forum is accorded substantial weight . . . and courts generally will not transfer

Jones listed as additional factors differences in costs of litigation in the two fora; the two courts' familiarity with governing law; the location where relevant contracts were negotiated and executed; and the existence of a forum-selection clause. Here, the location of contract negotiation and execution collapses into the third factor noted in text above: contacts relating Plaintiffs' claim to the forum. As discussed below, that factor weighs strongly against transfer. See infra Part II-B-3. Defendants have made no showing that litigation in Pennsylvania is less expensive then in California. The two courts are equally familiar with the governing law because only federal questions are at issue. Finally, there is no forum selection clause at issue. These additional factors therefore weigh against transfer or are neutral.
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an action unless the `convenience' and `justice' factors strongly favor venue elsewhere." Florens Container v. Cho Yang Shipping, 245 F. Supp. 2d 1086, 1092 (N.D. Cal. 2002). While deference is always due a plaintiff's choice of forum, even "greater deference [is due] when the plaintiff has chosen the home forum." Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255 (1981). The already substantial consideration owed to Plaintiffs' home forum preference is even greater because this is an ERISA case. Actions arising under the ERISA are subject to the special venue provision in 29 U.S.C. § 1132(e)(2), which provides that an ERISA claim "may be brought in the district where[, inter alia,] the breach took place, or where a defendant resides or may be found, and process may be served in any other district where a defendant resides or may be found." The Ninth Circuit has described this section as indicating Congress's "liberal intent" to establish broad venue for ERISA claims. See Varsic v. U.S. Dist. Ct., 607 F.2d 245, 247 (9th Cir. 1979). Based on ERISA's broad venue provision, courts afford ERISA plaintiffs' choice of forum even greater deference than is already due under the ordinary 28 U.S.C. § 1404(a) analysis. See, e.g., Voluntary Employees Beneficiary Ass'n for Employees of Independent Elec. Supply, Inc. v. Ross, 1994 U.S. Dist. LEXIS 13553, 1994 WL 544481, at *2 (N.D. Cal. Sept. 22, 1994); Bhd. of Trustees v. Baylor Heating & Air Conditioning, Inc., 702 F. Supp. 1253, 1256 (E.D. Vir. 1988) (giving even "greater weight" to plaintiff's choice of forum in an ERISA case); see also Ellis, 372 F. Supp. 2d at 537 ("[A] special venue provision . . . must influence the contours of section 1404(a) analysis.").14 This heightened deference to Plaintiffs' choice of forum is not diminished by the fact that Plaintiffs are bringing a class action. Cf. Defs.' Mem. at 8 & n. 5. None of the cases on which Defendants rely held that Plaintiffs' choice of forum is entitled to less deference ­ notwithstanding a special venue provision ­ simply because the case was brought as a class action. As this Court has held, when "venue is governed by a more permissive standard [in the statute under which the cause of action arises], a plaintiff's choice is entitled to greater deference as a matter of law, even where that case is brought as a class action." Ellis, 372 F. Supp. 2d at 537 (emphasis added). The court

The Ellis plaintiffs alleged claims under Title VII of the Civil Rights Act of 1964, which, like the ERISA, provides for broad venue. See Ellis, 372 F. Supp. 2d at 536.
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in Winnett v. Caterpillar, Inc., 2006 U.S. Dist. LEXIS 95973, 2006 WL 1722434, at *3 (M.D. Tenn. June 20, 2006), recently rejected the argument that the heightened deference due an ERISA plaintiff's forum preference is diminished when the case is brought as a putative class action. Id. ("[W]hatever extra deference is afforded to the plaintiffs' choice of venue in other ERISA cases must also be afforded here."). Nor does the nationwide distribution of putative class members diminish the deference due Plaintiffs' forum choice. Id.; cf. Defs.' Mem. at 8. This is particularly true because the named plaintiffs have "brought the action in the judicial district with which [they have] had the most extensive contacts . . . [and because] a liberal venue provision provides additional grounds for deferring." Ellis, 372 F. Supp. 2d at 544; see also Goldstein, 2007 U.S. Dist. LEXIS 32278, 2007 WL 1342533, at *3, *5-6 (denying transfer motion in ERISA class action because, inter alia, "ERISA's remedial purposes favor broad availability of applicable venues"); Defrancesco, 2006 U.S. Dist. LEXIS 80718, 2006 WL 3196838, at *2 ("The fact that a Plaintiff sues on behalf of a class does not render his forum choice completely irrelevant"). And contrary to Defendants' assertion, Defs.' Mem. at 1, "[Plaintiff's] decision to sue in [their] home forum of California does not amount to impermissible forum shopping." See Stomp, Inc. v. NeatO, LLC, 61 F. Supp. 2d 1074, 1082 (C.D. Cal. 1999). Short of intervening as defendants in a distant forum with which they have no contacts, Plaintiffs' only means of protecting their rights was to file this lawsuit, and they logically did so in the forum where they reside and receive medical benefits. See Int'l Bhd. of Painters & Allied Traders Union v. Best Painting & Sandblasting Co., Inc., 621 F. Supp. 906, 908 (D.D.C. 1985) (plaintiffs who filed in home district after defendant filed preemptive declaratory relief suit in distant forum were not forum shopping but were "forcefully and legitimately pursuing their interests"). On the contrary, it was Defendant Mack that engaged in forum shopping by filing an anticipatory declaratory judgment action. See supra Part I-B. 2. All Parties Have Substantial Contacts In California And The Balance of Inconveniences Tips Sharply In Plaintiffs' Favor.

Defendants cannot sustain their heavy burden under § 1404(a) by simply asserting that 27 Pennsylvania "is undoubtedly the more convenient forum for Mack" because it is headquartered and 28
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administers the Plan there. Defs.' Mem. at 8. As this Court has explained, "[w]hile it may be more convenient for [defendant] to litigate this case [where it] has its principal place of business[,] . . . this factor [is not] sufficient to overcome plaintiff's choice of forum." See Teamsters, 2005 WL 2005 WL 947083, at *4, RJN, Exh. A. Instead, Defendants must show a "clear balance of inconveniences" in their favor. E. & J. Gallo Winery, 899 F. Supp. at 466. This they have patently failed to do. Plaintiffs have substantial connections to this district, in which they reside and receive benefits, and have little or no connection to Pennsylvania. Defendants have connections to both fora. And while travel to Pennsylvania would impose enormous hardships on Plaintiffs ­ elderly retirees with serious medical conditions ­ Defendants make no attempt to show that litigating in California would be burdensome, let alone that the balance weighs in their favor. Cf. Miracle v. N.Y.P. Holdings, Inc., 87 F. Supp. 2d 1060, 1073 (D. Haw. 2000) (denying transfer when, inter alia, defendant did not show that litigation in plaintiff's chosen forum would be difficult). All three plaintiffs reside in this District. Mr. Evitt and Mr. Ortega worked at Defendant Mack's plant in Hayward for almost a decade and a half, accruing their vested lifetime medical benefits from that employment. They also receive health care in this judicial District, pursuant to their enrollment in Mack's group insurance plan. Mr. and Mrs. Evitt have never had any contact with Pennsylvania. Mr. Ortega has not been to Pennsylvania for 23 years and has no current contact with the state whatsoever. Robert Evitt Decl. at ¶¶2-4; Loretta Evitt Decl. at ¶¶2-4; Ortega Decl. at ¶¶2, 4-5; Evitt Decl. ISO TRO & PI at ¶4; Ortega Decl. ISO TRO & PI at ¶4. Mack, however, has contacts to both fora, and its California contacts are significant. It operated a plant in Hayward for approximately a decade and a half and it continues to conduct substantial sales in California. Vickner Decl. ISO Defs.' Mot. to Transfer at ¶ 2 (Doc. No. 23); Crook Decl. at ¶ 12. Plaintiffs would undergo significant hardships were they forced to travel to Pennsylvania. It would take Mr. and Mrs. Evitt well over nine hours and Mr. Ortega well over eight and one half hours to travel from their homes in this district to the courthouse in Pennsylvania. Crook Decl. at ¶¶10-11. Mr. Evitt cannot remain in one position for more than about 45 minutes, must walk with a

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walker, and even then cannot walk for distances longer than a block. He sleeps with a breathing machine that cannot easily be transported. Similarly, Mrs. Evitt cannot stand for more than about fifteen minutes and she has been terrified of planes since the September 11 tragedies. As a result, Mr. and Mrs. Evitt rarely leave their home, and when they do, they do not venture far. Because of their fragile physical conditions and the difficulty of travel, Mr. and Mrs. Evitt did not attend funerals of close family members in Indiana. Robert Evitt Decl. at ¶¶5-9; Loretta Evitt Decl. at ¶¶58. Mr. Ortega also has a chronic back condition that makes long distance travel extremely uncomfortable. His wife depends on him to drive her and if he were required to travel, she would be str