court's erroneous transfer order the district court transferred this action from the southern district of california to the eastern district of california pursuant to the first rule however the district court did not consider whether the eastern district of california is a big stage of the proceedings how are you prejudiced at this stage of the proceedings we believe they were prejudiced because the southern district of california is the only venue where we believe that this action might have been brought under the two thousand and five consent decree with the federal trade commission but even if it had stayed in the southern district it doesn't seem that the judge would have stated and you'd still be in the same species of having your case  stayed i think that kind of cause for speculation as to what would have happened in the southern district of california if the action would have been state or not but the judge said that the first to file rule applies and then had to decide whether that meant to stay it or transfer interpretation of her order is that perhaps the claim for declaratory relief under the consent decree as to see if plaintiffs in the class members have standing to enforce the consent decree my reading of the order is the she thought that that was perhaps an outlier claim that may still proceed even if the case was transferred to the eastern district of california i realize that we're primarily focusing on the procedure there but i was puzzled how you felt that your putative class would be entitled to enforce a decree between the trade a federal trade commission and some of the defendants involved here aren't your folks incidental beneficiaries and unable to enforce such a decree well we think that under the terms of the consent decree that the plaintiffs in the proposed class members are intended beneficiaries in this case is kind of the kin to the name or versus us department of veteran affairs where this court held that a class of veterans had standing to enforce a consent decree with the department of veterans affairs we believe that the same reasoning applies here in this case and one thing i'd like to address is the course of action that this court should take if it finds that the transfer order around us since this action has been transferred to the eastern district of california the eastern district of california has stayed the case since the action was transferred there so i would suggest that the that this court v k all orders they were issued by the eastern district of california if it finds that the transfer  as my colleagues suggested you're kind of hoisted upon your own petard at this point because we're dealing with the bahman factors it's extremely difficult to get a read of this nature even if the district court was wrong in the transfer how do you comply with the factors howel how do we have the authority at this point to issue a written mandate well no one of the bellman factors is decisive great but which ones do you think can you meet well i believe one of the factors is whether the order is clearly erroneous we think that the first to follow rule cannot trump the requirements of fortune for a fourteen a for it is a statute that was and acted by congress and it says the transfer can only be made to a venue where the i i respect that that is your argument but that's obviously a disputed point right i think words so it isn't argument that you are in hurriedly prejudiced but being in a court where you never should have been at any time any way shape or form you did what we should encourage court the court you're in has no business having this case and if you had to lead a tell bore it happened in the case your opponent would be saying oh you waited too long you waived you have and i think that's exactly right i mean this court has granted mandamus petitions in the past to correct erroneous transfer orders pacific car versus foundry is a great example of that  believe this courts of the venue issues deal with rights that are too important to be adjudicated tell a final judgment on the merits of the case and that's why we're here today under the petition for  any other relief you could seek that would provide you what's yours what you're looking for i think that the petition is really the best the only way really to get the relief that we're  seeking this court decided not to take up the appeal as you're aware petitioner filed both an appeal and the petition right this court decided not to take it up as an appeal and instead directed that it answer be issued to the petition so we think that really the petition is our only form or relief that can be granted here to correct this transfer when there's a stay in the original court and did you say there's a stay in the eastern district now there is a stay in the eastern district of california so where does that leave you from your perspective well i believe in the southern district of california the case wasn't state in its entirety as i recall only class certification issues were stayed pending the resolution of the motion to transfer venue i guess i'm a little bit confused because it was transferred there now your entire case is stand right correct and that  occurred recently in early november the judge in the eastern district of california stated the case and if the stay at some point is lifted you could seek again at that point to go back to the southern district couldn't  implications of that case and think that you cannot enforce the consent decree then do you have any other argument for prejudice for what the problem is of keeping your case did for a while in the eastern district think it instead of keeping it stayed in the southern district well we also think that the convenience  california what can you discuss so if it before when i asked would it be stated in the southern district i think you talked about the consent decree but if we disagree with you about that and if we assume i think unless you have a different argument that it would be stayed in the southern district to i'm confused about where the prejudice comes from where the case is stated it seems like it stayed either way and i'm not sure what the prejudice as well in the event that the state was lifted t stayed we would want the case to proceed in the southern district california if the state is lifted not only for the consent decree because it's also where defendants are headquartered they previously moved to transfer the eastern district  california case to the southern district of california in that case the state as well for and this case counsel do you want to save any of your time you said once a minute you don't have that anymore but if you want to save it was a lot of counsel two other punitive class actions that have been filed several years ago and my clients shouldn't have to litigate this later filed duplicative action merely because those exploited is want to piece of the attorney's fees pie that's what this is really about the only different workers don't have to do with the issue before us the issue the main issue before us is that this case should never have been  transferred that the case the case under the law one might argue clearly unquestionably belongs in a different district i specific with don't we look at the named plaintiffs and not the class the name plaintiff here is in pennsylvania what is the connection to the eastern district of california your honor for i believe as the as this judge bush wants said and she cited the ross decision from the northern district of california that for fourteen zero for purposes which is what the petitioner here is claiming should be applied you analyze the suit in terms of the class not the class representative or the class council so what if we think that's wrong well i suppose then you would have to make your decision on that basis there is there any connection between this case and the eastern district of california if you're looking at the defendants and the named plaintiffs if you're looking at the class representative i would argue that that class representative is included within the class ok so but let's talk about the class representative then what is her connection to the eastern district of california no more no less than it is to the southern district of california because she thought the defendants are in the southern district of california right the defendants sell their product throughout the country so for venue purposes they may be deemed to be present everywhere do you are you saying that they have enough contacts with the eastern district that there is specific jurisdiction in the eastern district out of their actions for this this case we claim to not but judging when the eastern district disagreed and the case that's because in that case there was a purchase in the eastern district you don't have that in this case do you have purchased from the name class member the name cost plaintiff if you want to parse it like that your honor yes that's correct but if you want to see the forest for the trees the class represented in this case bozak who was located in pennsylvania who made a purchase presumably in pennsylvania is a member of the class alleged in the case in the eastern district of california and have any case that other than this northern district case that stands for the proposition that as if any class member if a putative class lives in some district that's enough of a connection from filing the case there that and judge to show it's order so there are two so so do i understand it if you bring a class action it's not yet been certified as a class action you just say in your complaint it's a class action and it's against  company with that sells its products nationally the judge can transfer it to anywhere transfer it to alaska transferred to why does it matter any old venue fits the federal law is that your position no it's not your  it is a judge made doctrine of convenience that is derived from the statute so they're there not just that's it says you can only transfer to a district in which the action could have been filed and i have not heard an argument yet from you about why this could have been filed in the first instance in the eastern district this could have been filed in the eastern district and was filed in the eastern district because with the exception of the claim to enforce the c consent decree which this point of does not have standing to raise the claims are the same as but they're not because the case that was filed in the eastern district had a plaintiff from the eastern district who purchased in the eastern district in this case doesn't this case the plaintiff is in pennsylvania with respect your honor i think that confuses the substantive claims with the name class representative the substantive claims are the same the class representative is different even though the class represent a deal we still have to figure out i agree with you about that but we still have to figure out a venue for each case separately don't we what's the rule that says we don't have to look at each case separately for purposes of venue you do and the rule also is that where there is a first filed action you can  send the case to the the venue where the first filed action was filed and you don't have to go as a judge or a catholic saying that part is not in the statute fourteen a far right that part is judge created and fourteen zero four says you can't transfer unless it move to transfer this case to the eastern district what was the bottom line reason the bottom line is that we're having to my client is having to deal with not two but three separate class actions  action and it's prejudicial to have to face three separate ones what i think was missing in the presentation of the underlying facts in my colleague's present so when your argument if any case was filed in state court that cannot be removed to federal court and another case of same allegations were filed in federal court under your theory even though no law would allow those two to be combined you said they could be combined because it's convenient that's not the law it's not there not combined because it's convenient but what may happen and what did happen in this case is that the federal district court in this case judg said hey you're litigating exactly the same claims in state court under state law i am going to stay this federal court action pending what happens in state court and judge england in the eastern district directed us to file status reports i believe it's every sixty days as to what's going on in the san diego state court action and with fact we filed a four page status report just three days ago i have a southern district fire recall correctly is also state this why didn't you in the eastern district to transfer that case to the southern district and everything would all be right there together it's because there was too much water under the dam what i thought we had a shortage of one except today what happened what happened your honor is is is that the judge has shown in the in federal court in the southern district of california so that i am going to transfer your action to the eastern district of california she didn't stay the action she transferred but that's because you asked her to you could have just asked her to stay it waiting for the state court action and then you would have been litigating you would have just been sitting there that's correct but we presumably then would have been called upon to make status reports to two courts instead of one because i can't imagine the judge who shot would have just stated and then forgotten about it you're required to make status the action she transferred and therefore it was subject to judging when the eastern district judge in england who had stayed those actions subject to what's going on in san diego superior court would stay court judge meyer and we're required to we have been filing status reports every sixty days with what's going on the net result in practical terms is the correct one on the merits and as a matter of equity is that my client is having to answer the same sets of one time and one time only and that's correct that's the right result but we do counsel let let's just say hypothetically that the petitioner in this case doesn't meet the b requirements that would mean that you would be in a district which is my colleague noted you would have no basis for filing into the woods is the venue what's the result of that isn't that kind of create a little bit of a legal problem for all concerned your honor forgive me it doesn't take much but i got a little bit lost there could you get what i'm saying is they're seeking a rhythm and they have to satisfy the b factors if we don't think they have and you win then the case is in the eastern district right right and but it's been stayed there is that right yes ok so as people have commented on the panel here there is no venue for this action based upon the putative plaintiff the name plaintiff in the eastern district is there two responses you're ok first of all i respectfully disagree that there is no venue there i would argue that this class representative is a member of the class but that's what i agreed we ask you for some case law authoritative case law that you have not provided  i'm not aware of any it's the named plaintiff in this case until you have a class and that plaintiff is in we think pennsylvania bought the product in pennsylvania how does that end up being in the eastern district of california why is that a proper venue with respect your honor i did provide some authority as the ross case from the northern district obviously but that's not that's a district court as all due respect to the district court but we don't have a appellate binding precedent right and that is correct ok ok and the so what do we do we got if we if they don't get they don't get their read it sits and a district that doesn't have in the superior court of san diego and so you're not being denied a right and by the way if for some reason the disposition of those claims in the superior court of san diego winds up being deceptive or inadequate or otherwise not to your liking at that point you can go to the eastern district of california and say here's the problem fix it the only claim and but to follow up on judge dismissed question so supposing at that point the stay is lifted to address those issues and then stay and the decision is being made by a court who assume contrary to your arguments should not be hearing the case so we have created then have we not a situation where we know right now under my hypothesis that that judge should not be deciding anything in the case but we have allowed the case to sit there and eventually be the subject of proceedings before that challenge that are no lymphoid why should we allow that to happen putting to the saw the respectful disagreement i have with the court that it's it's determined solely by the class representative there is no prejudice because assuming for the sake of discussion that the case before this court were not transferred to the eastern district of california instead state in the southern district of california presumably the judge to sean would have made precisely the same analysis the eight and said i stated this case pending disposition in the superior court of san diego the practical result would be exactly the same let's get back to the hypo where the state court decides something that we think doesn't have an effect on the federal actions and now the state gets listed in the federal actions to figure out what to do could it your opponent at that point file again to transfer back to the southern district or file a new mandamus action i think my question is whether if we don't give manda is that going to end this issue going forward or could it come up again at that point directly i think it could come up at that point which would which leads to the of the i think insightful issue why should this court spend time money and effort resolving this theoretical issue now when it might come up again years down the line but only in the context of when it matters right now it doesn't matter because the  sir gone back to an earlier question about the prejudice that petitioner would suffer if this case a stayed perhaps i wasn't clear on that issue earlier but part of the prejudice is that we don't think that the rights of the class members are being adequately represented in the state court proceedings the court of appeal for the fourth the public district in california already overturned a class action settlement in the state court certain claims about this weight loss supplement product and the court of appeal said the injunctive relief just want to be adequate there because they're already enjoined from doing it and another point i'd like to so why isn't that evidence that the state courts are taking care of this mentioned colorado river in your brief but i didn't see every analysis of why you met the factors for having the federal court proceed with this action despite the state court action you kind of mentioned it but didn't make an argument is that the character well we believe that there are different claims that issue we don't think that this is all that substantially similar and our claim for exerts her relief is the claim that's not being asserted in the other action and not only that independent of the consent decree so if we disagree with you about the consent decree and force men again though this is something we discussed earlier than you don't do you have any other argument on that and why the federal court should be proceeding when there's a state court action going on anything that's better litigated in federal court than in state court well we think that there's concurrent jurisdiction and really under the colorado river doctrine the federal courts are supposed to assert the jurisdiction given to them and we also think that this case is ok and so with respect i just decided a case of over montana mining claim involving colorado river where people went to the federal court because they don't like the state court and and we did invoke the colorado river doctrine but not for the reason you'd like we said it but the state court which had the initial action and the state court was perfectly capable of taking care of everything in this case you're on the wrong side of that because as my colleague pointed out  know the state courts seem to be perfectly capable of handling this action why should we interfere with that as i said before we're concerned about whether the state court is out of the protecting the interests of the is it not i mean if you're on the other side you think they're doing a great job i suppose and they reversed i mean i just don't see why you have a basis for that at this point you even maybe don't like the lawyers court reversed and said try again because we don't think this is ok so that's evidence that they're actually protecting you aren't that well going back to the court of appeal decision and they said that the injunctive relief is inadequate in that case because they're already insuring for making these we claims and that's why we think that this action should be heard in the same court that issued the two thousand and five consent decree but at bottom line as i think we've all discussed here the reality is  problem in the eastern district which you agree everything stayed it's in the state court the state court is processing this in seemingly in an appropriate manner it's primarily a state certainly concurrent claim whether or not you have any benefit on this federal trade commission solution is something the state courts perfectly prepared and able to decide i just i struggle with why you're prejudiced the same question that my colleague has and we think that the prejudice is just inherently being in a venue where that action just simply doesn't belong but it's in the sense in san diego i mean it it's in the state court in san diego what's the matter with that well our actions in the eastern district i understand it understand that what i'm saying is you said at the beginning the headquarters of the county is there everybody's there and you don't want it in the eastern district so why why