# Smith v. Southwest Airlines Co.

> District Court, S.D. California · April 24, 2023

URL: https://www.frixlaw.com/law-library/cases/10087525

## Case

- **Court:** District Court, S.D. California
- **Decided:** April 24, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10087525

## Opinion text

1 LAW OFFICE OF FRANCIS J. FLYNN, JR.
Francis J. Flynn, Jr., SBN 304712
2 6057 Metropolitan Plz.
3 Los Angeles, California 90036-3211
Tele: 314-662-2836
4 Email: casey@lawofficeflynn.com
5
ATTORNEY FOR PLAINTIFFS
6 AND THE PROPOSED CLASS

7
Matthew D. Pearson, Bar No. 294302
8 mpearson@bakerlaw.com
BAKER & HOSTETLER LLP
9
600 Anton Blvd, Suite 900
10 Costa Mesa, California 92626-7221
Telephone: 714.754.6600
11
Facsimile: 714.754.6611
12
[Additional Counsel Listed on
13
Signature Block]
14
ATTORNEYS FOR DEFENDANT
15 SOUTHWEST AIRLINES CO.
16
UNITED STATES DISTRICT COURT
17 NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
18

19 MARY SMITH, individually and on )
behalf of all others similarly situated ) CASE NO.: 3:23-cv-00313-CRB
20
)
21 PLAINTIFFS, ) JOINT STIPULATION TRANSFER
) ACTION TO THE SOUTHERN
22
v. ) DISTRICT OF CALIFORNIA
23 ) PURSUANT TO 28 U.S.C. § 1404(a)
SOUTHWEST AIRLINES CO. )
24 ORDER
) Action Filed: 01/22/2023
25 DEFENDANT. ) Action Served: 01/24/2023
26 Plaintiff MARY SMITH, (“Plaintiff”) and SOUTHWEST AIRLINES CO.
27 1
JOINT STIP. TO TRANSFER ACTION
1
(“Defendant” or “Southwest”), by and through undersigned Counsel, hereby stipulate
2
and respectfully request that this Court transfer venue of this action to the United
3
States District Court of the Southern District of California pursuant to 28 U.S.C §
4
1404(a) as follows:
5
1. On or about January 22, 2023, Plaintiff filed a Class Action Complaint
6
against Southwest on behalf of “All persons in the United States who purchased
7
tickets for travel on a Southwest Airlines flight scheduled to operate notably from
8
June 2020 through the date of certification but including the time period allowed by
9
the statute of limitations, and that flight was delayed or cancelled, and who were not
10
provided a refund and reimbursed for incurred expenses as a result of the
11
cancellation.”
12
2. On February 15, 2023, another class action, titled Grove v. Southwest
13
Airlines Co., Case No. 3:23-cv-00303-AJB-BLM, was filed in the United States
14
District Court for the Southern District of California (the “Grove Action”). The Grove
15
Action asserted the same claims that Plaintiff asserts here arising out of the same
16
flight disruptions at issue in this case against the same defendant (i.e., Southwest).
17
3. Since March 13, 2023, the Parties have been meeting and conferring
18
about the possibility of transferring and consolidating this action with the Grove
19
Action.
20
4. During this meet and confer process, Plaintiff’s counsel notified
21
Southwest that Plaintiff planned to file a motion to transfer this action to the United
22
States District Court for the Southern District of California.
23
5. Southwest subsequently responded that it did not oppose transferring
24
this action to the United States District Court for the Southern District of California.
25
6. Accordingly, the Parties agreed to stipulate that this case will be
26
27 2
JOINT STIP. TO TRANSFER ACTION
1
transferred to the to the United States District Court for the Southern District of
2
California, pursuant to 28 U.S.C § 1404(a).
3
7. The statute governing transfer of venue, 28 U.S.C. § 1404(a), provides
4
in relevant part that “[f]or the convenience of parties and witnesses, in the interest of
5
justice, a district court may transfer any civil action to any other district or division
6
where it might have been brought.” In enacting section 1404, Congress meant to give
7
district courts the discretion to transfer cases based on an “individualized, case-by-
8
case consideration of convenience and fairness.” Stewart Org., Inc. v. Ricoh Corp.,
9
487 U.S. 22, 29 (1988).
10
8. A district court may transfer a civil action to any other district or division
11
where it might have been brought “[f]or the convenience of parties and witnesses, in
12
the interest of justice.” 28 U.S.C. § 1404(a). The purpose of Section 1404(a) is to
13
“prevent the waste of time, energy and money and to protect litigants, witnesses and
14
the public against unnecessary inconvenience and expense.” Van Dusen v. Barrack,
15
376 U.S. 612, 616 (1964) (quoting Continental Grain Co. v. The Barge FBL-585, 364
16
U.S. 19, 26 (1960)).
17
9. “[C]ourts engage in a two-step analysis for motions to transfer.” Perez
18
v. Performance Food Grp., Inc., No. 15-cv-02390-HSG, 2017 U.S. Dist. LEXIS
19
2319, at *4 (N.D. Cal. Jan. 6, 2017). First, a court determines whether the action
20
could have been brought in the target district. Id. (quoting Hoffman v. Blaski, 363
21
U.S. 335, 343-44 (1960). Second, if the court answers the first question in the
22
affirmative, the court conducts an “individualized, case-by-case consideration of
23
convenience and fairness.” Id. (quoting Stewart Org., Inc. v. Ricoh Corp., 487 U.S.
24
22, 29 (1988)). The relevant factors include: (1) plaintiff's choice of forum, (2)
25
convenience of the parties, (3) convenience of the witnesses, (4) ease of access to the
26
27 3
JOINT STIP. TO TRANSFER ACTION
1
evidence, (5) familiarity of each forum with the applicable law, (6) feasibility of
2
consolidation of other claims, (7) any local interest in the controversy, and (8) the
3
relative court congestion and time of trial in each forum. Vu v. Ortho-McNeil Pharm.
4
Inc., 602 F. Supp. 2d 1151, 1156 (N.D. Cal. 2009) (citation omitted); see also Jones
5
v. GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 2000). No single factor is
6
dispositive. See Brown v. Abercrombie & Fitch Co., No. 4:13-cv-05205 YGR, 2014
7
U.S. Dist. LEXIS 19414, at *7 (N.D. Cal. Feb. 14, 2014).
8 A. This Action Could Have Been Brought in the Southern District of
California.
9
10. An action may be brought in any district court: (1) that has subject matter
10
jurisdiction; (2) where defendant is subject to personal jurisdiction; and (3) where
11
venue is proper. See Hoffman, 363 U.S. at 343-44; see also Vu, 602 F. Supp. 2d at
12
1156 (N.D. Cal. 2009). The Southern District meets all three requirements.
13
11. First, the Southern District would have subject matter jurisdiction over
14
this action. There is no dispute that the Southern District would have subject matter
15
jurisdiction over this action because the disruption of Southwest flights also occurred
16
in the Southern District.
17
12. Second, the Southern District would have personal jurisdiction over
18
Defendant. There is no dispute that Defendant flies in and out of San Diego and
19
conducts business in San Diego. San Diego falls within the jurisdiction of the
20
Southern District, see 28 U.S.C. § 84(d), and therefore the Southern District would
21
have personal jurisdiction over Defendant. See generally Johnson v. Law, 19 F. Supp.
22
3d 1004, 1009 (S.D. Cal. 2014).
23
13. Third, the Southern District would be a proper venue for this action.
24
Again, there is no dispute that some of the events giving rise to this action occurred
25
in the Southern District. Accordingly, the Southern District would be a proper venue
26
27 4
JOINT STIP. TO TRANSFER ACTION
1
for this action. See 28 U.S.C. § 1391(b)(1)-(2).
2
14. In sum, this action could have been brought in the Southern District.
3
B. The Relevant Factors Favor Transferring Venue
4
15. As explained below, the factors relevant to this Court's analysis weigh
5
in favor of transferring this action to the Southern District of California.
6
16. The Ninth Circuit has identified several factors pertinent to determining
7
whether transfer under Section 1404(a) is appropriate. These factors include: (1) the
8
location where the relevant agreements were negotiated and executed, (2) the state
9
that is most familiar with the governing law, (3) the plaintiff's choice of forum, (4)
10
the respective parties’ contacts with the forum, (5) the contacts relating to the
11
plaintiffs cause of action in the chosen forum, (6) the differences in the costs of
12
litigation in the two forums, (7) the availability of compulsory process to compel
13
attendance of unwilling non-party witnesses, and (8) the ease of access to sources of
14
proof. Jones v. GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 2000).
15
17. As there is no dispute that this case could be brought in the Southern
16
District of California, and Southwest does not oppose this motion to transfer, these
17
considerations weigh in favor of transfer pursuant to 1404(a).
18
18. Here, the other factors are either neutral or favor transfer to the Southern
19
District of California.
20
(a) The Location Where the Relevant Agreements Were Negotiated and
21 Executed.
22 19. The factor regarding the location where the relevant agreements were
23 negotiated and executed is neutral as several class members entered into the
24 agreements in both the Northern District of California and the Southern District of
25 California.
26 (b) The State that is Most Familiar with the Governing Law.
27 5
JOINT STIP. TO TRANSFER ACTION
1
20. The factor regarding the state that is most familiar with the governing
2
law is neutral as the Northern District of California and the Southern District of
3
California are both located in California and would be equally familiar with the
4
governing law – whether that is California or otherwise.
5
(c) The Plaintiff's Choice of Forum.
6
21. Here, Plaintiff is willing to have the case heard in the Southern District
7
of California and has entered into a Stipulation to have the case transferred there.
8
Since both Parties support transfer to the Southern District of California, this factor
9
weighs in favor of transfer to the Southern District of California.
10
(d) The Respective Parties’ Contacts With the Forum
11
22. The factor regarding the respective Parties’ contacts with the forum is
12
neutral as Southwest enters into contracts with class members in the Northern District
13
and the Southern District. Additionally, some class members presumably had tickets
14
to fly to and from the two Districts. Furthermore, Southwest is headquartered in
15
Dallas, Texas and, according to Google, San Francisco is located further away from
16
Dallas, Texas (1,689.7 miles) (3 hours and 25 minute flight) versus San Diego
17
(1,358.2 miles) (2 hours and 55 minutes).
18
(e) The Contacts Relating to the Plaintiffs Cause of Action in the
19 Chosen Forum.
20 23. The factor regarding the contacts relating to the Plaintiff’s cause of
21 action in the chosen forum is neutral as several class members entered into the
22 agreements in both the Northern District of California and the Southern District of
23 California. (f) The Differences in the Costs of Litigation in the Two Forums.
24 24. Generally, litigation costs are reduced when venue is located near most
25 of the witnesses expected to testify or be deposed. The convenience of the witnesses
26 is often the most important factor when determining which forum would be the most
27 6
JOINT STIP. TO TRANSFER ACTION
1
convenient. Florens Container v. Cho Yang Shipping, 245 F.Supp.2d 1086, 1092
2
(N.D.Cal.2002). “[…][T]he parties’ respective abilities to absorb the costs of
3
litigation in either district is a relevant consideration. Peterson v. Nat'l Sec. Techs.,
4
LLC, No. 12-CV-5025-TOR, 2012 WL 3264952, at *5 (E.D.Wash. Aug. 9,
5
2012)(citing Boateng v. General Dynamics Corp., 460 F.Supp.2d 270, 275
6
(D.Mass.2006) (“[T]he balance of convenience focuses on the comparative financial
7
abilities of the parties and the cost of litigation should be borne by the party in the
8
best position to absorb and spread it.”)).
9
25. Defendants would bear a relatively higher cost of litigating in the
10
Northern District of California than in the Southern District of California since
11
Defendant is already litigating a Related Action – the Grove Action - in the Southern
12
District of California. By transferring the case to the Southern District of California,
13
Defendant will only have to produce witnesses in California once in the Southern
14
District of California. Furthermore, since Defendant is headquartered in Dallas,
15
Texas, many witnesses for the lawsuit would have to fly from Dallas, Texas and
16
Dallas, Texas is closer to the Southern District of California than it is to the Northern
17
District of California. If the case is not transferred to the Southern District of
18
California, Defendants would have to pay for travel, lodging, and food expenses to
19
employees who appear as witnesses in both the Southern District of California (for
20
the Grove Action) and the Northern District of California (for the instant case).
21
Additionally, by transferring the case to the Southern District of California, Plaintiff
22
will be able to share common litigation expenses with the Plaintiff in the Grove
23
Action. By way of one example, sharing in the cost of the deposition transcript. For
24
these reasons and because both Parties are willing to transfer this case to the Southern
25
District of California, this factor weighs heavily in favor of transfer to the Southern
26
27 7
JOINT STIP. TO TRANSFER ACTION
1
District of California.
2
(g) The Availability of Compulsory Process to Compel Attendance of
3 Unwilling Non-party Witnesses
4 26. Federal Rule of Civil Procedure 45(c)(3) provides that a court must, on
5 a timely motion, quash a subpoena issued to any person who resides more than 100
6 miles away from the location at which he or she has been ordered to appear. A court's
7 subpoena power only matters if non-party witnesses within the state will likely refuse
8 to testify. Ahead, LLC v. KASC, Inc., C13-0187JLR, 2013 WL 1747765, at *12 (W.D.
9 Wash. Apr. 23, 2013). Additionally, the Southern District of California is closer to
10 Dallas, Texas where several witnesses are located. The Parties are unaware of any
11 unwilling witnesses that cannot be compelled to the Southern District of California
12 and witnesses will be testifying in the Southern District of California in the related
13 Grove Action anyways. As such, this factor weighs in favor of transfer.
14 (h) The Ease of Access to Sources of Proof.
15 The “ease of access to documents does not weigh heavily in the transfer
16 analysis, given that advances in technology have made it easy for documents to be
17 transferred to different locations." See Metz v. U.S. Life Ins. Co. in City of New York,
18 674 F. Supp. 2d 1141, 1149 (C.D. Cal. 2009)(citation omitted). Courts have
19 determined, however, that access to sources of proof include access the relevant
20 witnesses. See Ahead, 2013 WL 1747765 at *13 (finding that the location of the
21 relevant witnesses and other sources of proof relevant to discussion of access to
22 sources of proof). The Parties acknowledge that the principal witnesses are located
23 in Dallas, Texas and the Southern District of California is closer to Dallas, Texas than
24 the Northern District of California and Defendant will already be producing witnesses
25 in the Southern District of California given the Grove Action. Thus, this factor weighs
26 in favor of transfer to the Southern District of California.
27 8
JOINT STIP. TO TRANSFER ACTION
1
27. The Parties further agreed that, upon transfer of these actions to the
2
Southern District of but California, they will propose an agreed-upon schedule for
3
consolidation of this action and the Grove Action.
4
CONCLUSION
5
For the reasons set forth above, transfer of the case to the Southern District of
6
California will not cause delay and, in fact, will result in this Action proceeding more
7
efficiently and cost effectively for both Parties. Thus, this Court, respectfully, should
8
grant the Parties’ Joint Stipulation to Transfer this Action to the Southern District of
9
California Pursuant to 28 U.S.C. § 1404(a) to the Southern District of California.
10
11 Dated: April 21, 2023 Respectfully submitted,
12
/s/ Francis J. “Casey” Flynn, Jr. /s/ Matthew D. Pearson (with
13 Francis J. “Casey” Flynn, Jr. permission)
LAW OFFICE OF FRANCIS J. Matthew D. Pearson, Bar No. 294302
14
“CASEY” FLYNN, JR. mpearson@bakerlaw.com
15 6057 Metropolitan Plz. BAKER & HOSTETLER LLP
Los Angeles, California 90036 600 Anton Blvd, Suite 900
16
Tele: 314-662-2836 Costa Mesa, California 92626-7221
17 Email: casey@lawofficeflynn.com Telephone: 714.754.6600
Facsimile: 714.754.6611
18
ATTORNEY FOR PLAINTIFF
19 AND THE PROPOSED CLASS Alexander Vitruk, Bar No. 315756
avitruk@bakerlaw.com
20
Date: April 24, 2023 BAKER & HOSTETER LLP
21 999 Third Avenue, Suite 3900
Seattle, Washington 98104
22
Telephone: 206.332.1380
23 Facsimile: 206.624.7317
24
ATTORNEYS FOR DEFENDANT
25 SOUTHWEST AIRLINES CO.
26
27 9
JOINT STIP. TO TRANSFER ACTION
1

2 CERTIFICATE OF SERVICE

3
I hereby certify that, on April 21, 2023, I electronically filed the foregoing with
4
the Clerk of the Court by using the e-filing system which will send notification of
5
such filing to all attorneys of record.
6
/s/ Francis J. “Casey” Flynn, Jr.
7

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27 10
JOINT STIP. TO TRANSFER ACTION

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10087525. Public record. Not legal advice.