The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 DANIEL HERRERA, on behalf of Case No.: 23-cv-1350-LAB-WVG
himself and others similarly situated,
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ORDER DISMISSING ACTION
Plaintiff,
13 UNDER FIRST-TO-FILE RULE
v.
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NATIONAL VISION, INC.; and
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DOES 1 to 100, inclusive,
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Defendants.
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18 On August 16, 2023, Plaintiff Daniel Herrera and Defendant National Vision,
19 Inc. filed a joint stipulation to stay this class action pending the resolution of an
20 earlier-filed and overlapping action in the Northern District of California entitled
21 Maisnier v. National Vision, Inc., Case No. 22-cv-7859-WHO. (Dkt. 8). The Court
22 found that a stay wouldn’t advance the interests of efficiency or judicial economy,
23 denied the joint stipulation to stay, and ordered the parties to show cause why this
24 action shouldn’t be dismissed or transferred to the Northern District of California
25 under the first-to-file rule. (Dkt. 9 at 5). The parties filed timely responses. (Dkt. 12,
26 13). Having considered the facts, the parties’ briefing, and the relevant law, the
27 action is DISMISSED WITHOUT PREJUDICE.
28 //
1 I. BACKGROUND
2 A. Herrera Action
3 On June 2, 2023, Plaintiff Daniel Herrera filed this class action against
4 Defendant National Vision, Inc. (the “Herrera Action”) in California Superior Court
5 asserting seven class claims for: (1) failure to pay minimum wages, Cal. Lab.
6 Code §§ 1194, 1197; (2) failure to pay overtime wages, id. §§ 510, 1194; (3) failure
7 to authorize or permit meal periods, id. §§ 226.7, 512; (4) failure to authorize or
8 permit rest periods, id. § 226.7; (5) failure to provide complete and accurate wage
9 statements, id. § 226; (6) failure to timely pay final wages at termination, id.
10 §§ 201–03; and (7) unfair business practices, Cal. Bus. & Prof. Code §§ 17200,
11 et seq. (Dkt. 1-3, Compl.). The class is defined as all persons who worked for
12 National Vision in California as an hourly or non-exempt employee from June 2,
13 2019, to present. (Id. ¶ 3). On July 24, 2023, National Vision removed the Herrera
14 Action to this Court. (Dkt. 1).
15 B. Maisnier Action
16 On September 20, 2022, Paul F. Maisnier filed a class action against
17 National Vision (the “Maisnier Action”) in California Superior Court asserting eight
18 class claims for: (1) failure to pay wages including overtime, Cal. Lab. Code
19 §§ 510, 1194; (2) failure to provide meal periods, id. §§ 226.7, 512; (3) failure to
20 provide rest periods, id. §§ 226.7, 512; (4) failure to pay timely wages, id. § 203;
21 (5) failure to provide accurate itemized wage statements, id. § 226; (6) failure to
22 indemnify necessary business expenses, id. § 2082; (7) unlawful deductions from
23 wages; and (8) violation of California Business & Professions Code §§ 17200, et
24 seq. Notice of Removal, Maisnier v. National Vision, Inc., No. 22-cv-7859-WHO
25 (N.D. Cal. Dec. 9, 2022), ECF No. 1. The class in the Maisnier Action is defined
26 as all persons who worked for National Vision in California as non-exempt or
27 equivalent employees from September 20, 2018, to present. Id. at 21–22, ¶ 10.
28 On December 9, 2022, National Vision removed the Maisnier Action to the
1 Northern District of California. Id.
2 II. DISCUSSION
3 The Court incorporates the analysis from its August 21, 2023 Order and
4 finds the first-to-file rule applies to this action. (Dkt. 9 at 4–5). Under the rule, the
5 Court “has discretion to transfer, stay, or dismiss the [Herrera Action] in the
6 interest of efficiency and judicial economy.” See Cedars-Sinai Med. Ctr. v.
7 Shalala, 125 F.3d 765, 769 (9th Cir. 1997). The Court already determined a stay
8 isn’t warranted here, (see Dkt. 9 at 5), so it considers only transfer and dismissal.
9 A. Transfer to the Northern District of California
10 When applying the first-to-file rule, the second-filed case may only be
11 transferred to a district “where it might have been brought.” In re Bozic, 888 F.3d
12 1048, 1054 (9th Cir. 2018) (quoting 28 U.S.C. § 1404(a)). “The transferee court
13 meets this requirement if: (1) it would have subject-matter jurisdiction; (2)
14 defendants would be subject to personal jurisdiction; and (3) venue would be
15 proper.” Golo, LLC v. Goli Nutrition Inc., No. 21-cv-02348-VAP-MAAx, 2021 WL
16 3360134, at *3 (C.D. Cal. July 30, 2021) (citing Hoffman v. Blaski, 363 U.S. 335,
17 343–44 (1960)). Proper venue is determined under the general venue statute,
18 28 U.S.C. § 1391. See In re Bozic, 888 F.3d at 1053.
19 Under § 1391(b)(2), venue is proper in “a judicial district in which a
20 substantial part of the events or omissions giving rise to the claim occurred.” “[I]n
21 a class action, the ‘events’ in question are only those involving the named
22 plaintiffs.” In re Bozic, 888 F.3d at 1053 (citing Abrams Shell v. Shell Oil Co., 343
23 F.3d 482, 490 (5th Cir. 2003); 2 Newberg on Class Actions § 6:36 (5th ed.) (“The
24 analysis of where a substantial part of the events took place, in a class action,
25 looks to the events concerning the named plaintiffs’ claims, not all of the class
26 members’ claims.”)).
27 Herrera is the only named plaintiff in this action. (Compl.). He worked for
28 National Vision at 7155 Broadway, Lemon Grove, CA, 91945, a location within the
1 Southern District of California. (Id. ¶¶ 2, 6). Because none of the events giving
2 rise to Herrera’s claim took place in the Northern District of California, venue isn’t
3 proper there under § 1391(b)(2).
4 Under § 1391(b)(1), venue is proper in “a judicial district in which any
5 defendant resides, if all defendants are residents of the State in which the district
6 is located.” The only named defendant in this action is National Vision, a
7 corporation, so venue is proper in any district in which it resides. For venue
8 purposes, a defendant corporation “shall be deemed to reside . . . in any judicial
9 district in which [it] is subject to the court’s personal jurisdiction with respect to the
10 civil action in question.” 28 U.S.C. § 1391(c)(2). Therefore, for venue to be proper
11 in the Northern District of California under § 1391(b)(1), National Vision must be
12 subject to personal jurisdiction there. See Healy v. Wells Fargo Bank, N.A.,
13 No. 20-cv-01838-H-AHG, 2020 WL 7074939, at *2 (S.D. Cal. Dec. 3, 2020).
14 Federal courts may exercise either general or specific jurisdiction over
15 nonresident defendants. Bristol-Myers Squibb Co. v. Super. Ct., 582 U.S. 255,
16 262 (2017). General jurisdiction exists when a defendant is “essentially at home”
17 in the forum state. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S.
18 915, 919 (2011). “For an individual, the paradigm forum for the exercise of general
19 jurisdiction is the individual's domicile; for a corporation, it is an equivalent place,
20 one in which the corporation is fairly regarded as at home.” Id. at 924. “[T]he
21 ‘equivalent’ forums for a corporation are its place of incorporation and principal
22 place of business.” Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017,
23 1024 (2021). A corporation’s principal place of business is its “nerve center,” “the
24 place where a corporation’s officers direct, control, and coordinate the
25 corporation’s activities.” Hertz Corp. v. Friend, 559 U.S. 77, 92–93 (2010). To be
26 subject to specific jurisdiction in a particular district, on the other hand, “‘the suit’
27 must ‘aris[e] out of or relat[e] to the defendant’s contacts with the forum.’” Bristol-
28 Myers Squibb Co., 582 U.S. at 262 (emphasis in original) (quoting Daimler AG v.
1 Bauman, 571 U.S. 117, 127 (2014)).
2 National Vision is incorporated in Georgia and its corporate
3 headquarters—where all executive and administrative functions take place—is in
4 Duluth, Georgia. (Dkt. 1-2, Decl. of Jamie Kerkhoff ¶ 3; Dkt. 1 ¶ 15). The Court
5 finds National Vision is at home in the state of Georgia and, therefore, not subject
6 to general personal jurisdiction in California. As for specific personal jurisdiction,
7 Herrera’s claims arise out of his employment in the Southern District, so National
8 Vision isn’t subject to specific personal jurisdiction in the Northern District in this
9 action. See Healy, 2020 WL 7074939, at *3; In re Bozic, 888 F.3d at 1053–54.
10 Nor is venue proper in the Northern District under 28 U.S.C. § 1391(b)(3).
11 That section “applies only if there is no district where venue lies under § 1391(b)(1)
12 or (b)(2).” In re Bozic, 888 F.3d at 1054. Because venue is proper in this District
13 and in the Northern District of Georgia (where Duluth is located), the residual
14 provision doesn’t apply. Id.
15 Venue in this action isn’t proper in the Northern District of California under
16 the general venue statute, 28 U.S.C. § 1391, and this action may not be
17 transferred there. See id. at 1053.
18 B. Dismissal
19 If transfer isn’t proper and the first-filed case doesn’t present a “likelihood of
20 dismissal,” the court may dismiss the second-filed case. Alltrade, Inc. v. Uniweld
21 Prods., Inc., 946 F.2d 622, 629 (9th Cir. 1991); see also Intersearch Worldwide,
22 Ltd. v. Intersearch Grp., Inc., 544 F. Supp. 2d 949, 963 (N.D. Cal. 2008)
23 (“Dismissal is proper where the court of first filing provides adequate remedies.”)
24 (citing Alltrade, 946 F.2d at 627–28); cf. Ford v. [24]7.ai, Inc., 812 F. App’x 576,
25 577 (9th Cir. 2020) (holding dismissal of second-filed case was inappropriate
26 when the first-filed court issued a tentative order of dismissal with prejudice).
27 Herrera opposes dismissal, arguing he and other members of the putative
28 class will be severely prejudiced by the statute of limitations if this action is
1 dismissed and the Maisnier class isn’t certified or only partially certified. (Dkt. 12
2 at 1). He also asserts “dismissal would potentially eliminate any value and/or
3 nuance which [his] claims may bring to the Maisnier action.” (Id.). Both arguments
4 are unpersuasive.
5 First, there is no indication the Maisnier Action will be dismissed. See
6 generally Maisnier v. National Vision, Inc., Case No. 22-cv-7859-WHO (N.D. Cal.).
7 Second, as the parties previously stipulated, (see Dkt. 8 at 2), the claims in the
8 Herrera and Maisnier actions are nearly identical and “there is nothing to suggest
9 this action would be certified while the [Maisnier Action] would not,” De La Cruz v.
10 Target Corp., No. 18-cv-0867-DMS-WVG, 2018 WL 3817950, at *2 (S.D. Cal.
11 Aug. 8, 2018) (dismissing second-filed wage-and-hour class action). Third,
12 Herrera hasn’t presented any compelling reason why this action shouldn’t be
13 dismissed: if the Maisnier Action settles, Herrera, as a member of the putative
14 Maisnier class, will “have the opportunity to participate in the settlement or he may
15 opt out to pursue his claims individually.” Id. “In the event the [Maisnier] court
16 denies class certification, [Herrera] may litigate his individual claims as an
17 intervenor or pursue his individual claims in a separate lawsuit.” Id.
18 Dismissing this action is “in the interest of efficiency and judicial economy.”
19 Cedars-Sinai Med. Ctr., 125 F.3d at 769; see also De La Cruz, 2018 WL 3817950,
20 at *2 (dismissing class action complaint without prejudice based on the first-to-file
21 rule and noting that the plaintiff was permitted to litigate his individual claims either
22 as an intervenor in the earlier filed lawsuit or in a separate lawsuit).
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1 CONCLUSION
2 This action is DISMISSED WITHOUT PREJUDICE to Herrera pursuing his
3 || claims on an individual basis.
4 IT IS SO ORDERED.
5 ||Dated: September 11, 2023 Ww
7 United States District Judge
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