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Palmer v. CVS Health

United States District Court, E.D. New York

February 17, 2017

STEVEN & ELLEN PALMER, Individually and on Behalf of All Others Similarly Situated, Plaintiffs,
v.
CVS HEALTH & NICE-PAK PRODUCTS, INC., Defendants.

          Steven 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 & Foerster

          CVS Pharmacy, Inc.:James M. Bergin Morrison & Foerster

          ORDER

          Jack B. Weinstein, Senior United States District Judge

         I. Introduction

         Five 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).

         A class action involving New Hampshire law and New Hampshire residents was withdrawn after it became likely that the court would transfer the case to the United States District Court for the District of New Hampshire.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).

         The 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).

         A 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 Hr'g Tr.”).

         None of 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.

         II. Law

         “For 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”).

         Whether 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).

         “District 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.” D.H. ...


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