Carlson v. Colorado Center for Reproductive Medicine, LLC

[3] 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA [6] 7 DOUGLAS F. CARLSON, et al., Case No. 21-cv-06133-MMC 8 Plaintiffs, ORDER DENYING DEFENDANTS' 9 v. MOTION TO DISMISS OR TRANSFER; DENYING REQUEST TO STAY 10 COLORADO CENTER FOR DISCOVERY; VACATING HEARING REPRODUCTIVE MEDICINE, LLC, et 11 al., Defendants. [12] 13 Before the Court is defendants Colorado Center for Reproductive Medicine, LLC 14 (“CCRM”), Sarah Macleod (“Macleod”), and Angela Fouts-Hyatt’s (“Fouts-Hyatt”) “Motion 15 to Dismiss or, in the Alternative, to Transfer Venue to the District of Colorado,” filed 16 October 15, 2021. Plaintiffs Douglas F. Carlson and Maya Zubkovskaya have filed 17 opposition, to which defendants have replied. Having read and considered the papers 18 filed in support of and in opposition to the motion, the Court deems the matter appropriate 19 for decision on the parties’ respective written submissions, VACATES the hearing 20 scheduled for December 3, 2021,1 and rules as follows. 21 By the instant motion, defendants seek an order dismissing the above-titled action, 22 or, in the alternative, transferring it to the District of Colorado, on the grounds that 23 Macleod and Fouts-Hyatt (“the individual defendants”) are not subject to personal 24 jurisdiction in California, see Fed. R. Civ. P. 12(b)(2), the Northern District of California is 25 not a proper venue, see id. 12(b)(3), the Northern District of California is not a convenient [27] 1 In light thereof, the parties’ stipulated request, filed November 22, 2021, to 1 forum, see 28 U.S.C. § 1404 (a), and/or plaintiffs have failed to state a claim upon which 2 relief can be granted, see Fed. R. Civ. P. 12(b)(6). In addition, defendants request the 3 Court stay discovery pending a ruling on the above. See id. 26 (c)(1). 4 A. Personal Jurisdiction 5 Where, as here, plaintiffs raise “two [or more] separate causes of action,” the 6 Court must have personal jurisdiction over each defendant “with respect to each claim.” 7 See Data Disc, Inc. v. Sys. Techs. Assocs., Inc., 557 F.2d 1280, 1289 (9th Cir. 1977). 8 Here, with respect to plaintiffs’ tort-based claims alleged against Macleod and 9 Fouts-Hyatt, both individually and jointly, the Court finds plaintiffs have made a “prima 10 facie showing” as to personal jurisdiction, see Boschetto v. Hansing, 539 F.3d 1011 , 11 1015 (9th Cir. 2008) (noting “plaintiff need only make a prima facie showing of the 12 jurisdictional facts”), and defendants have not presented a “compelling case that the 13 presence of some other considerations would render jurisdiction unreasonable,” see 14 Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477 (1985) (holding, once plaintiff makes 15 prima facie showing, defendant must present “compelling case” of unreasonableness). 16 In particular, and contrary to defendants’ argument, plaintiffs’ claims do not 17 concern injuries arising from the medical treatment plaintiffs received in Colorado, but, 18 rather, injuries that “arise out of or relate to” activities the individual defendants 19 “purposefully directed” at California. See id. at 472 (holding court has personal 20 jurisdiction over defendant who “has purposefully directed his activities at residents of the 21 forum” and where “the litigation results from alleged injuries that arise out of or relate to 22 those activities” (internal quotation and citation omitted)). Specifically, plaintiffs allege 23 that, on February 14, 2020, the individual defendants called, and disclosed plaintiffs’ 24 confidential information to, San Francisco police officers and dispatchers (see Compl. 25 ¶¶ 89, 94, 113, 118) for the purpose of sending officers to plaintiffs’ San Francisco, 26 California residence, to evaluate plaintiff Zubkovskaya under California Welfare and 27 Institutions Code § 5150 (see id. ¶¶ 67, 93, 97, 100). 1 with respect to plaintiffs’ contract-based claims, the Court finds it appropriate to exercise 2 pendent personal jurisdiction over those claims as well, in that the contract-based and 3 tort-based claims “arise out of a common nucleus of operative facts.” See Action 4 Embroidery Corp. v. Atlantic Embroidery, Inc., 368 F.3d 1174, 1180-81 (9th Cir. 2004) 5 (holding district court has discretion to exercise “pendent personal jurisdiction” over 6 claims “aris[ing] out of a common nucleus of operative facts with a claim . . . over which 7 the court does have personal jurisdiction”). 8 B. Improper Venue 9 Venue, like personal jurisdiction, “must be established as to each claim.” See 10 Martensen v. Koch, 942 F. Supp. 2d 983, 996 (N.D. Cal. 2013). 11 Here, with respect to plaintiffs’ tort-based claims, the Court finds venue in the 12 Northern District of California is proper. In particular, plaintiffs’ allegations that they 13 reside in this district and that defendants’ actions caused them injury in this district 14 suffice. See 28 U.S.C. § 1391 (b)(2) (providing venue proper in “district in which a 15 substantial part of the events or omissions giving rise to the claim occurred”); Myers v. 16 Bennett Law Offs., 238 F.3d 1068, 1075-76 (9th Cir. 2001) (holding “substantial part” of 17 events giving rise to tort claim occurs in district where plaintiff alleges “harms” were “felt”). 18 Additionally, although, again, neither party has addressed whether venue is proper 19 with respect to plaintiffs’ contract-based claims, the Court finds, for the reasons stated 20 above as to the tort-based claims, a basis for pendent venue has been shown. See 21 Martensen, 942 F. Supp. 2d at 998 (holding, “if venue is proper on one claim, the court 22 may find pendent venue for claims that are closely related”). 23 C. Inconvenient Venue 24 Contrary to defendants’ argument, the Court finds defendants have not made a 25 “strong showing of inconvenience to warrant upsetting . . . plaintiff[s’] choice of forum.” 26 See Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986) 27 (noting defendant has burden of making requisite showing). In particular, as set forth 1 under § 1404(a) weigh in favor of granting such relief. See Williams v. Bowman, 157 F. 2 Supp. 2d 1103, 1106 (N.D. Cal. 2001) (setting forth factors for assessing motion to 3 transfer for convenience). 4 First, plaintiffs’ chosen forum is one in which plaintiffs reside and where all, or at 5 least the majority of, the events on which they rely occurred. See, e.g., Vu v. Ortho6 McNeil Pharm., Inc., 602 F. Supp. 2d 1151, 1157 (N.D. Cal. 2009) (finding venue 7 convenient in district in which plaintiffs “reside” and “events giving rise to plaintiffs’ claims 8 occurred”). 9 Next, the convenience of the parties, any local interest in the controversy, and the 10 familiarity of each forum with the applicable law appear to be essentially in balance. See 11 Barnes & Noble, Inc. v. LSI Corp., 823 F. Supp. 2d 980, 994 (N.D. Cal. 2011) (finding 12 transfer “not appropriate” where “effect would be simply to shift the inconvenience from 13 one party to another” (internal quotation and citation omitted)); Fraser v. Brightstar 14 Franchising LLC, Case No. 16-cv-01966-JSC, 2016 WL 4269869 , at *7 (N.D. Cal. Aug. 15 15, 2016) (finding “local interest” factor “neutral” where both districts “have an interest in 16 resolving the disputes of [their] residents”); Jacobs v. Sustainability Partners, LLC, Case 17 No. 20-cv-01981-PJH, 2020 WL 5593200 , at *9 (N.D. Cal. Sept. 18, 2020) (denying 18 transfer where “both courts are capable of applying” common and state statutory law 19 under which claims brought). As to ease of access to evidence and any court 20 congestion, the former, in an age of electronic records, is a factor carrying little weight, 21 see Jacobs, 2020 WL 5593200 , at *9 (noting “[e]ase of access to evidence” not a 22 “predominate concern . . . because advances in technology have made it easy for 23 documents to be transferred to different locations” (internal quotation and citation 24 omitted)), and neither party has addressed the latter, see Fraser, 2016 WL 4269869 , at 25 *7 (finding “relative congestion” factor “neutral” where parties provided no evidence with 26 respect thereto). 27 Moreover, and of particular importance, the majority of relevant non-party 1 California. (See Opp. at 15:13-17 (identifying plaintiffs’ potential witnesses).) Although 2 defendants assert “all of the relevant witnesses” are located in Colorado (see Mot. at 6:23 3), defendants have not identified any such witnesses or explained why they are relevant, 4 see Carolina Cas. Co. v. Data Broad. Corp., 158 F. Supp. 2d 1044, 1049 (N.D. Cal. 5 2001) (noting, “[t]o demonstrate inconvenience of witnesses, the moving party must 6 identify relevant witnesses, state their location[,] and describe their testimony and its 7 relevance”), and, to the extent defendants’ purported witnesses are CCRM employees 8 (see Reply at 7:21-8:4 (describing defendants’ witnesses as “individuals that treated 9 [p]laintiffs”)), such employees, even if identified, are unlikely to tip the balance in favor of 10 transfer, see Royal Queentex Enters. v. Sara Lee Corp., No. C-99-4787 MJJ, 2000 WL 11 246599, at *6 (N.D. Cal. Mar. 1, 2000) (noting, “[i]n balancing convenience of the 12 witnesses, primary consideration is given to third party, as opposed to employee 13 witnesses”). 14 Lastly, contrary to defendants’ argument, “consolidation of this action with 15 [p]laintiffs’ Colorado action” would not be “appropriate and ideal” (see Mot. at 8:9), as the 16 Colorado action is based on claims arising from substantially different facts and, with the 17 exception of CCRM, is brought against different defendants than those named in the 18 instant action, see First Amended Complaint, Carlson v. Colo. Ctr. for Reprod. Med., 19 LLC, No. 21-cv-1528-RMR-NYW (D. Colo. Sept. 2, 2021) (asserting claims arising from 20 alleged misrepresentations regarding fertility treatment success rates and plaintiffs’ ability 21 to transfer embryos). 22 D. Failure to State a Claim 23 To the extent defendants argue plaintiffs’ professional negligence claims are time24 barred, the Court finds said claims were timely filed, given the Judicial Council of 25 California’s tolling of the statute of limitations in response to the COVID-19 pandemic. 26 See Judicial Council of Cal., Emergency Rules Related to COVID-19, Rule 9(a), available 27 at https://www.courts.ca.gov/documents/appendix-i.pdf (tolling, from April 6, 2020, until 1 Order Memorandum to the Judicial Council, CO-20-09, at 5 n.14, available at 2 || http://www.alameda.courts.ca.gov/Resources/Documents/ExecOffice/CO-20-09.pdf 3 || (noting “178-day tolling period” for statutes of limitations that exceed 180 days). 4 Next, although defendants, in conclusory fashion, contend plaintiffs’ allegations 5 || “simply do not amount to any viable cause of action” (see Mot. at 2:13), defendants have 6 || failed to identify any particular deficiency in plaintiffs’ claims and, consequently, have not 7 met their burden to show no claim has been stated, see Retamco Operating, Inc. v. 8 || Carone, No. CV 04-2997 CBM (RZx), 2004 WL 7338703 , at *3 (C.D. Cal. Aug. 27, 2004) 9 || (citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991); holding 10 || “party moving for dismissal has the burden of proving that no claim has been stated”); 11 see also Fed. R. Civ. P. 7(b)(2) (providing moving party must “state with particularity the g 12 || grounds for seeking [court] order’). g 13 || E. Stay of Discovery 14 To the extent defendants request the Court stay discovery pending its 8 15 determination as to dismissal, the request, in light of the above rulings, is denied as moot. a 16 CONCLUSION 17 For the reasons stated, the motion is hereby DENIED. 4g 19 IT IS SO ORDERED. [20] 21 || Dated: November 23, 2021 2 LM ( Lats 22 Uni States District Judge