and Submitted January 8, 2018 Pasadena, California
Petition for Writ of Mandamus to the United States District
Court for the Southern District of California D.C. No.
Michael T. Houchin (argued) and Ronald A. Marron, Law Office
of Ronald A. Marron, San Diego, California, for Petitioner.
Richard P. Sybert (argued), Hazel Mae B. Pangan, and Patrick
J. Mulkern, Gordon & Rees LLP, San Diego, California, for
Real Parties in Interest.
Before: Milan D. Smith, Jr. and Michelle T. Friedland,
Circuit Judges, and Jed S. Rakoff, [*] Senior District Judge.
panel denied a petition for a writ of mandamus that sought to
reverse an order transferring petitioner Regina Bozic's
putative class action from the United States District Court
for the Southern District of California to the United States
District Court for the Eastern District of California.
panel agreed with Bozic that it was clear error when the
district court transferred her action to the Eastern District
because venue was not proper there under the general venue
statute, 28 U.S.C. § 1391. The panel rejected
defendants' contentions concerning venue. First, because
nothing in Bozic's complaint suggested that any event
giving rise to her individual claims occurred in the Eastern
District, the panel held that venue was not proper under
§ 1391(b)(2). The panel also held that neither 28 U.S.C.
§ 1391(b)(1) nor (b)(3) provided a basis for venue in
the Eastern District where none of the seven defendants
resided in the Eastern District and venue was proper in the
Southern District. Second, concerning defendants'
contention that the first-to-file rule negated 28 U.S.C
§ 1404(a)'s requirement that an action could be
transferred only to a district where it "might have been
brought, " the panel held that the argument was
foreclosed by the plain language of § 1404(a) which
allowed transfer only to a district where it might have been
brought, a requirement that excludes the Eastern District.
panel held that despite the presence of a clear legal error,
Bozic was not entitled to mandamus relief where issuance of
the writ would have no practical impact on this case in its
current procedural posture, and any injury Bozic might face
was purely speculative. The panel concluded that the
extraordinary remedy of mandamus was unwarranted at this
FRIEDLAND, CIRCUIT JUDGE.
Regina Bozic requests mandamus relief to reverse an order
transferring her putative consumer class action from the
United States District Court for the Southern District of
California ("Southern District") to the United
States District Court for the Eastern District of California
("Eastern District"), where her action was
consolidated with a similar one previously filed in the
Eastern District. These two federal actions are stayed
pending the outcome of a third class action that is
proceeding in California state court.
we agree with Bozic that it was clear error to transfer her
action to the Eastern District, issuance of the writ would
have no practical impact on this case in its current
procedural posture, and any injury Bozic might face is purely
speculative. We therefore hold that the extraordinary remedy
of mandamus is unwarranted at this time.
2015, Plaintiff-Petitioner Regina Bozic purchased the
weight-loss supplement Lipozene in her home state of
Pennsylvania. Disappointed by the product, Bozic filed a
putative class action in the Southern District against the
corporate entities and individuals (collectively,
"Defendants") responsible for the production,
distribution, and marketing of Lipozene. In addition to
asserting a series of state law claims, Bozic sought a
declaratory judgment defining Lipozene purchasers' rights
under a 2005 Federal Trade Commission ("FTC")
consent decree that restricts Defendants' ability to sell
weight-loss products. The Southern District, where the decree
was entered and where Defendants reside, retains jurisdiction
over matters involving "construction, modification, and
enforcement" of that decree.
case is the third of its kind. At the time she filed suit,
two related putative class actions were already pending in
California: Duran v. Obesity Research Institute,
LLC, filed in the San Diego Superior Court, and
Fernandez v. Obesity Research Institute, LLC, filed
in the Eastern District. All three suits assert similar state
law claims against a largely overlapping group of defendants,
although Bozic's request for declaratory relief under the
FTC consent decree is unique to the current action.
Fernandez has been stayed since August 2013 pending
the resolution of Duran.
Bozic filed this action in March 2016 in the Southern
District, Defendants moved in that court to transfer the case
to the Eastern District for consolidation with
Fernandez or, in the alternative, to stay the
proceedings. The court held that Bozic's action was
governed by the first-to-file rule, a judicially created
"doctrine of federal comity, " Pacesetter Sys.,
Inc. v. Medtronic, Inc., 678 F.2d 93, 94-95 (9th Cir.
1982), which applies when two cases involving
"substantially similar issues and parties" have
been filed in different districts, Kohn Law Grp., Inc. v.
Auto Parts Mfg. Miss., Inc., 787 F.3d 1237, 1239 (9th
Cir. 2015). Under that rule, "the second district court
has discretion to transfer, stay, or dismiss the second case
in the interest of efficiency and judicial economy."
Cedars-Sinai Med. Ctr. v. Shalala, 125 F.3d 765, 769
(9th Cir. 1997).
that "the Fernandez Court [had] already
determined that venue [was] proper" in the Eastern
District, the district court chose to transfer. Bozic then
filed a petition for a writ of ...