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In re Bozic

United States Court of Appeals, Ninth Circuit

April 25, 2018

In re Regina Bozic,
v.
United States District Court for the Southern District of California, San Diego, Respondent, Henny Den Uijl, an individual; Sandra Den Uijl, an individual; Bryan Corlett, an individual; Obesity Research Institute, a California Limited Liability Company; Continuity Products, a Delaware Limited Liability Company; National Weight Loss Institute, a California Limited Liability Company; Zodiac Foundation, a California Limited Liability Company; Innotrac Corporation, a Georgia Corporation, Real Parties in Interest. Regina Bozic, on behalf of herself and all others similarly situated, Petitioner,

          Argued 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. 3:16-cv-00733-BAS-MDD

          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.

         SUMMARY [**]

         Mandamus

         The 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.

         The 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.

         The 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 time.

          OPINION

          FRIEDLAND, CIRCUIT JUDGE.

         Plaintiff-Petitioner 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.

         Although 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.

         I.

         In 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.

         Bozic's 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.[1] 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.[2]

         After 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).

         Reasoning 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 ...


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