United States District Court, E.D. New York
STEVEN & ELLEN PALMER, Individually and on Behalf of All Others Similarly Situated, Plaintiffs,
CVS HEALTH & NICE-PAK PRODUCTS, INC., Defendants.
and Ellen Palmer:Samuel H. Rudman Lauren Elizabeth Karalis
Mark S. Reich Robbins Geller Rudman & Dowd LLP
Nice-Pak Products, Inc.:James M. Bergin Morrison &
Pharmacy, Inc.:James M. Bergin Morrison & Foerster
B. Weinstein, Senior United States District Judge
separate but related class actions are before the court. They
are brought by consumers who purchased moist toilet wipes
sold by retailer defendants, produced by manufacturer
defendants, and marked “flushable.” Alleged are
defects in labeling. Plaintiffs seek money damages and
injunctive relief because they claim the product is not
“flushable.” See Kurtz v. Kimberly-Clark
Corp. & Costco Wholesale Corp., No.
14-CV-1142 (“Kurtz action”) (relying on
New Jersey and New York law); Armstrong & Kurtz v.
Costco Wholesale Corp. & Nice-Pak Prods., Inc.,
15-CV-2909 (“Armstrong action”) (relying
on Oregon law); Palmer & Palmer v. CVS Health &
Nice-Pak Prods., Inc., 15-CV-2928
(“Palmer action”) (relying on Maryland
law); Honigman & Kurtz v. Kimberly-Clark,
15-CV-2910 (“Honigman action”) (relying
on New York law); and Belfiore v. Procter & Gamble
Co., 14-CV-4090 (“Belfiore action”)
(relying on New York law).
action involving New Hampshire law and New Hampshire
residents was withdrawn after it became likely that the court
would transfer the case to the United States District Court
for the District of New Hampshire. See Richard &
Richard v. Wal-Mart Stores, Inc. & Rockline Indus.,
15-CV-4579 (“Richard action”); Order,
15-CV-4579, Jan. 19, 2017, ECF No. 95 (order granting
stipulation of dismissal with prejudice).
court has considered these cases extensively. See,
e.g., Science Day Part I Hr'g Tr., 14-CV-1142,
14-CV-4090, June 19, 2015; Science Day Part II Hr'g Tr.,
14-CV-1142, 14-CV-4090, July 21, 2015 (scientific and
evidentiary hearings conducted to determine how these cases
should be administered); Belfiore v. Procter & Gamble
Co., 94 F.Supp.3d 440 (E.D.N.Y. 2015) (denying
defendant's motion to dismiss); Belfiore v. Procter
& Gamble Co., 311 F.R.D. 29 (E.D.N.Y. 2015)
(outlining preliminary rulings on class certification,
staying case, and referring matters to the FTC); Order
Staying Cases 14-CV-1142, 15-CV-2909, 15-CV-2910, 15-CV-2928,
and 15-CV-4579, Oct. 9, 2015 (staying the cases and referring
matters to the FTC); Belfiore v. Procter & Gamble
Co., 140 F.Supp.3d 241 (E.D.N.Y. 2015) (denying
plaintiff's motion for reconsideration); Kurtz v.
Kimberly-Clark Corp., No. 14-CV-1142, 2015 WL 8481833
(E.D.N.Y. Dec. 10, 2015) (denying motion to lift the stay);
Kurtz v. Kimberly-Clark Corp., 315 F.R.D. 157
(E.D.N.Y. 2016) (encouraging the parties to explore aggregate
agency adjudication of their claims with the FTC); Scheduling
Order, 14-CV-1142, Oct. 13, 2016, ECF No. 252 (recommending
that the parties seek centralization of cases pending all
over the nation in one court, through multidistrict
litigation or the appointment by the court of a special
master or masters to assist in settlement); Kurtz v.
Kimberly-Clark Corp., No. 14-CV-1142, 2016 WL 6820405
(E.D.N.Y. Nov. 18, 2016) (describing methods of consolidation
and resolution); Order, 14-CV-1142 (forthcoming memorandum
and order addressing motions for class certification).
hearing was conducted on February 2 and 3, 2017 concerning
possible transfer of the instant case, among other issues and
cases. See Hr'g Tr., 14-CV-1142, Feb. 2, 2017;
Hr'g Tr., 14-CV-4090, Feb. 3, 2017 (“Feb. 3
the parties in the Palmer (15-CV-2928) (Maryland)
and Armstrong (15-CV-2909) (Oregon) cases moved to
transfer. But, the court decided sua sponte to
transfer these two cases to the United States District Court
for the District of Maryland and the United States District
Court for the District of Oregon, respectively.
the convenience of parties and witnesses, in the interest of
justice, a district court may transfer any civil action to
any other district or division where it might have been
brought or to any district or division to which all parties
have consented.” 28 U.S.C. § 1404(a). A court may
transfer a case sua sponte. Lead Indus.
Ass'n, Inc. v. Occupational Safety & Health
Admin., 610 F.2d 70, 79 n.17 (2d Cir. 1979) (“The
broad language of 28 U.S.C. [§] 1404(a) would seem to
permit a court to order transfer Sua sponte”).
the “interests of justice” and the
“convenience of parties and witnesses” favor
transfer “is guided by a non-exhaustive list of
factors, including: (1) the plaintiff's choice of forum,
(2) the convenience of witnesses, (3) the location of
relevant documents and relative ease of access to sources of
proof, (4) the convenience of the parties, (5) the locus of
operative facts, (6) the availability of process to compel
the attendance of unwilling witnesses, (7) the relative means
of the parties, (8) the forum's familiarity with the
governing law, and (9) trial efficiency and the interest of
justice.” City of Perry v. Procter & Gamble
Co., No. 15-CV-8051, 2016 WL 5416508, at *1 (S.D.N.Y.
Sept. 28, 2016) (citing N.Y. Marine & Gen. Ins. Co.
v. Lafarge N. Am., Inc., 599 F.3d 102, 112 (2d Cir.
2010) and Larew v. Larew, No. 11-CV-5771, 2012 WL
87616, at *3 (S.D.N.Y. Jan. 10, 2012)). “At the same
time, ‘[t]here is no rigid formula for balancing'
the factors and ‘no single one of them is
determinative.'” City of Perry, 2016 WL
5416508, at *1 (alteration in original) (quoting
Larew, 2012 WL 87616, at *3).
courts have broad discretion in making determinations of
convenience under Section 1404(a) and notions of convenience
and fairness are considered on a case-by-case basis.”