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United States District Court 

Northern District of California 

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

ALEXANDER BROWN and ARIK SILVA, individually and on behalf of all others 

similarly situated, 

 Plaintiffs, 

 v. 

ABERCROMBIE & FITCH CO. AND 

ABERCROMBIE & FITCH STORES, 

 Defendants. 

Case No.: 4:13-CV-05205 YGR

ORDER GRANTING MOTION OF DEFENDANTS 

TO TRANSFER VENUE TO THE CENTRAL 

DISTRICT OF CALIFORNIA PURSUANT TO 28

U.S.C. § 1404 

Plaintiffs Alexander Brown and Arik Silva bring this putative class action against 

Defendants Abercrombie & Fitch Co. and Abercrombie & Fitch Stores, Inc. (collectively, 

“Abercrombie”). Abercrombie allegedly operates at least four brands of retail clothing store in 

California: Abercrombie & Fitch, Hollister, Abercrombie Kids, and Gilly Hicks. Plaintiffs hope to 

represent a class of employees at all these stores. Plaintiffs seek monetary damages and injunctive 

relief for Abercrombie’s alleged failure (i) to provide rest periods, (ii) to indemnify business 

expenses, (iii) to furnish accurate wage statements, (iv) to pay timely wages due upon termination 

of employment, and for its alleged compelled patronization of Abercrombie-owned stores. 

Currently pending before the Court is Abercrombie’s Motion to Transfer Venue to the 

Central District of California pursuant to 28 U.S.C. section 1404. Having carefully considered the 

papers submitted and the pleadings in this action, and for the reasons set forth below, the Court 

GRANTS the motion.1

 While a plaintiff’s choice of forum is generally given great deference, here 

Plaintiffs seek to represent a class, do not reside in the Northern District, and the majority of the 

 

1

 The Court took this matter under submission without oral argument. Civ. L.R. 7-1(b). 

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actions giving rise to this case occurred in the Central District. Thus, Plaintiffs’ choice of this 

forum is given considerably less deference. In light of this reduced deference, transfer is justified 

for the convenience of the witnesses, most of whom may be expected to reside in the Central 

District. 

I. Factual and Procedural Background

Plaintiffs initiated this action in California Superior Court in the County of Alameda on 

September 16, 2013, and filed the operative complaint in the case, the First Amended Complaint 

("FAC"), in Superior Court on October 7, 2013.2 The FAC alleges that while Plaintiffs worked in 

stores operated by Abercrombie, Abercrombie failed to provide Plaintiffs with legally required rest 

periods, failed to compensate Plaintiffs for expenditures incurred in discharging duties of 

employment, coerced Plaintiffs to patronize stores owned by Abercrombie, failed to furnish 

Plaintiffs accurate wage statements, and failed to pay Plaintiffs all wages due timely upon 

termination. (FAC ¶¶ 5, 16-22.) Plaintiffs assert eight claims under California law. (Id. ¶¶ 5-6.) 

Specifically, Plaintiffs seek damages and penalties, as well as interest, attorney’s fees, costs, and 

injunctive relief under California Labor Code sections 201, 202, 203, 226, 226.7, 450, 558, 1198, 

and 2802; IWC Order No. 7, §§ 9(A) and 12; and California Business and Professions Code section 

17200, et seq. (Id. ¶ 6.) Plaintiffs also seek penalties under California's Private Attorney General 

Act, California Labor Code section 2699, et seq. (Id.) Plaintiffs seek to represent “all individuals 

employed by [Abercrombie] who worked at any Abercrombie & Fitch, Hollister, Abercrombie 

Kids, and/or Gilly Hicks store . . . as non-exempt hourly employees in California” between 

September 16, 2009 and the present. (Id. ¶¶ 3-4.) 

On November 8, 2013, Abercrombie removed the case to federal court under 28 U.S.C. 

section 1441. (Dkt. No. 1.) On November 20, 2013, Abercrombie filed the instant motion. (Dkt. 

No. 11 (“Motion”).) 

Abercrombie has submitted uncontroverted evidence that both Plaintiffs Brown and Silva 

currently reside within the Central District of California and work at Abercrombie-owned stores 

located in the Central District. (Dkt. No. 11-1 (“Fugarino Decl. ISO Mot.”) ¶¶ 7, 9, 13, 16.) Brown 

 

2

 All state court filings, including the FAC, are located in Dkt. No. 1, Ex. A. 

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has worked 148 shifts with Defendants’ Abercrombie & Fitch and Hollister stores, 130 of which 

have been in stores located in the Central District. (See id. ¶¶ 2-8.) Silva has worked 85 shifts at 

Abercrombie & Fitch, all in the Central District. (Id. ¶¶ 14-15.) 

Abercrombie has submitted further evidence that, of the 48 Abercrombie & Fitch stores 

owned by Abercrombie in California during the relevant period, 25 are located in the Central 

District and 12 are in the Northern District. (Id. ¶¶ 17-18.) Of the 64 Hollister stores in California 

during this period, 33 are located in the Central District and 15 are located in the Northern District. 

(Id. ¶¶ 17, 19.) Defendants have more employees in the Central District than in the Northern 

District. (Id. ¶ 20.) During the 18 shifts worked by Brown in the Northern District, Brown’s stores 

were managed by 8 different managers. (Dkt. No. 22-1 (“Fugarino Decl. ISO Reply”) ¶ 4.) While 

working in the Central District, Brown’s stores have been managed by 31 different managers. (Id.) 

II. LEGAL STANDARD 

“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.” 28 

U.S.C. § 1404(a). The purpose of section 1404(a) is to “prevent the waste of time, energy, and 

money and to protect litigants, witnesses and the public against unnecessary inconvenience and 

expense.” Van Dusen v. Barrack, 376 U.S. 612, 616 (1964) (internal quotation marks omitted). 

Courts considering transfer engage in a two-step analysis. Courts first determine whether the action 

could have been brought in the target district. Hoffman v. Blaski, 363 U.S. 335, 344 (1960). If it 

could have been, courts then undertake an “individualized, case-by-case consideration of 

convenience and fairness.” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van 

Dusen, 376 U.S. at 622). 

In conducting the convenience and fairness analysis, the district court has broad discretion 

in deciding whether to transfer and must engage in an individualized, case-by-case basis. See

Ventress v. Japan Airlines, 486 F.3d 1111, 1118 (9th Cir. 2007); Jones v. GNC Franchising, Inc.,

211 F.3d 495, 498 (9th Cir. 2000). In conducting this analysis, courts in this district commonly 

articulate the relevant factors as follows: 

/// 

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(1) plaintiffs' choice of forum, (2) convenience of the parties, (3) convenience of the 

witnesses, (4) ease of access to the evidence, (5) familiarity of each forum with the 

applicable law, (6) feasibility of consolidation with other claims, (7) any local 

interest in the controversy, and (8) the relative court congestion and time of trial in 

each forum. 

Vu v. Ortho-McNeil Pharm., Inc., 602 F. Supp. 2d 1151, 1156 (N.D. Cal. 2009); Royal Queentex 

Enters. v. Sara Lee Corp., No. C-99-4787 MJJ, 2000 WL 246599, at *2 (N.D. Cal. March 1, 2000) 

(citing Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986)); see also

Jones, 211 F.3d at 498-99 (“A motion to transfer venue under § 1404(a) requires the court to weigh 

multiple factors in its determination whether transfer is appropriate in a particular case.” (citing 

Ricoh Corp., 487 U.S. at 29)). This list is non-exclusive, and courts may consider other factors, or 

only those factors which are pertinent to the case at hand. See Williams v. Bowman, 157 F. Supp. 

2d 1103, 1106 (N.D. Cal. 2001) (noting that this list of factors “does not exhaust the possibilities” 

and comparing the factors in Decker Coal, 805 F.2d at 843, with those analyzed in Jones, 211 F.3d 

at 498-99). The burden is on the moving party to show that the transferee district is the more 

appropriate forum. Jones, 211 F.3d at 499. 

III. DISCUSSION 

A. This Action Could Have Been Brought in the Central District of California 

A proper district court is one: (1) that has subject matter jurisdiction; (2) where defendant 

would have been subject to personal jurisdiction; and (3) venue would have been proper. See 

Hoffman, 363 U.S. at 343-44. 

As an initial matter, the Court finds that this threshold requirement has been met. The 

Central District, like this District Court, would have subject matter jurisdiction over the instant 

action; the Defendant would have been subject to the personal jurisdiction of another California 

District Court; and venue in the Central District, where most of the events giving rise to this case 

occurred, would have been proper, see 28 U.S.C. § 1391(b)(2). Further, “Plaintiffs do not dispute 

that the Central District of California is a district where their action might have been brought. 

Accordingly, the only question is whether this Court should transfer the action for the convenience 

of parties and witnesses.” Wilson v. Walgreen Co., No. C-11-2930 EMC, 2011 WL 4345079, at *3 

(N.D. Cal. Sept. 14, 2011). 

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B. Convenience and Fairness Analysis 

The Court considers in turn each of the six relevant convenience factors central to this 

analysis: (1) Plaintiffs’ choice of forum, (2) convenience to the parties, (3) convenience of the 

witnesses, (4) ease of access to the evidence, (5) local interest in the controversy, and (6) the 

relative court congestion and time of trial in each forum.

1. Plaintiffs’ Choice of Forum 

For purposes of a section 1404(a) analysis, the plaintiff’s choice of forum always weighs 

against transfer; thus, the question for the Court is how much weight to give this choice relative to 

the other factors. See, e.g., Vu, 602 F. Supp. 2d at 1156-57 (balancing plaintiff’s choice against 

other factors weighing in favor of transfer); Getz v. Boeing Co., 547 F. Supp. 2d 1080, 1082-83 

(N.D. Cal. 2008) (same); Inherent.com v. Martindale-Hubbell, 420 F. Supp. 2d 1093, 1100-02 

(N.D. Cal. 2006) (same).

Generally, a plaintiff’s choice of forum is entitled to considerable weight and a defendant 

must make a strong showing of inconvenience to warrant upsetting this choice. Decker Coal, 805 

F.2d at 843 (9th Cir. 1986). However, the plaintiff’s choice is given less deference in a class 

action. Lou v. Belzberg, 834 F.2d 730, 739 (9th Cir. 1987); Wilson, 2011 WL 4345079, at *3. A 

plaintiff’s choice is also given less deference when the plaintiff resides outside of the chosen forum. 

Gemini Capital Group v. Yap Fishing Corp., 150 F.3d 1088, 1091 (9th Cir. 1998); Vu, 602 F. Supp. 

2d at 1156.3

 In addition, “the degree to which courts defer to the plaintiff’s chosen venue is 

substantially reduced where . . . the forum lacks a significant connection to the activities alleged in 

the complaint.” Id. at 1106.

Here, Plaintiffs argue that their choice of forum in the Northern District should be given 

substantial weight and that the Motion should therefore be denied. (Dkt. No. 20 (“Opp’n”) at 4.) 

However, three factors weigh against affording deference to Plaintiffs’ choice of forum. First, 

Plaintiffs brought this action as a putative class action. (FAC ¶¶ 3-4.) Although Plaintiffs contend 

that the rule granting less deference to class actions does not apply to class actions that are 

 

3

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plaintiffs should be discouraged from forum shopping.” Williams, 177 F. Supp. 2d at 1107. 

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statewide (as opposed to nationwide), Plaintiffs cite no authority for this proposition. (Opp’n at 4.) 

Several courts have afforded less weight to the plaintiffs’ choice of forum in similar statewide class 

action cases. See, e.g., Wilson, 2011 WL 4345079, at *3 (affording less deference to plaintiffs’ 

choice of forum in a statewide class action); Kaloghlian v. Best Buy Stores, L.P., No. 08-4171 SC, 

2008 WL 4890895, at *2 (N.D. Cal. Nov. 12, 2008) (same). Second, the record reflects that both 

Plaintiffs currently reside in the Central District. (Fugarino Decl. ISO Mot. ¶¶ 9, 16.) Third, the 

Northern District’s connection to the activities alleged in the complaint is significantly weaker than 

the Central District’s, as the majority of the incidents giving rise to the action occurred there. 

While Brown did work a total of eighteen shifts at two Hollister stores in this District, the rest of 

his shifts—and all of Silva’s—have been in the Central District. (Id. ¶¶ 2-8, 14-15.) Thus, far 

more of the activities giving rise to the complaint occurred in the Central District. 

Based upon these factors, the Court affords Plaintiffs’ choice of forum significantly reduced 

deference. See Wilson, 2011 WL 4345079, at *3 (affording plaintiffs’ choice of forum reduced 

deference because the plaintiffs brought a class action and did not reside in the district where the 

suit was brought, and because the facts pertinent to the action occurred in the transferee district); 

Lucas v. Daiichi Sankyo Co., Inc., No. C 11-0772 CW, 2011 WL 2020443, at *3 (N.D. Cal. May 

24, 2011) (“[Plaintiff’s] choice of forum in this action is entitled to reduced deference because he 

seeks to represent a class and he has filed his complaint in a district outside of the district in which 

he is domiciled.” (citation omitted)); Flint v. UGS Corp., No. C07-04640 MJJ, 2007 WL 4365481, 

at *3 (N.D. Cal. Dec. 12, 2007) (“Accordingly, the Court finds that although Plaintiff chose to 

bring the present case within the Northern District, the de minimus connection of Plaintiff and the 

case to this District reduces the deference given to Plaintiff's choice of forum.”). Thus, while this 

factor, as always, leans against transfer, in the circumstances of this case it is afforded minimal 

weight.

2. Convenience of the Parties

“Convenience of the parties is an important factor to consider for transfer of venue.” Flint, 

2007 WL 4365481, at *3. In weighing this factor, courts do not consider the convenience to parties 

that have chosen to bring a case in a forum where they do not reside, nor do courts consider the 

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convenience to potential class members whose participation in the case is merely speculative. See 

id. Thus, while Abercrombie argues that the Central District is a more convenient forum because 

Plaintiffs reside in Los Angeles, Plaintiffs counter that potential class members are located 

throughout California, including the Northern District. (Motion at 10; Opp’n at 5-6.) 

Neither party persuades on this factor. As Plaintiffs brought this case in the Northern 

District, and as the location of potential class members does not factor into this consideration, the 

Court finds this factor to be neutral. 

3. Convenience of the Witnesses 

The convenience to the witnesses is the most important factor in a section 1404(a) analysis, 

and the convenience of non-party witnesses is more important than the convenience of the parties. 

Clark v. Sprint Spectrum L.P., No. C 10-03625 SI, 2010 WL 5173872, at *3 (N.D. Cal. Dec. 15, 

2010). Convenience of a litigant’s employee witnesses is entitled to little weight because they can 

be compelled by their employers to testify regardless of venue. Shore to Shore Props., LLC v. 

Allied World Assurance, No. C 11-01512 JSW, 2011 WL 4344177, at *3 (N.D. Cal. Sept. 15, 

2011); STX, Inc. v. Trik Stik, Inc., 708 F. Supp. 1551, 1556 (N.D. Cal. 1988).

Here, Plaintiffs argue that, as this is a putative class action involving Abercrombie stores 

throughout the state, there are Abercrombie employees in the Northern District with relevant 

knowledge about the case who should be considered potential witnesses who would be 

inconvenienced by a transfer. (Opp’n at 5-6.) However, Plaintiffs have not indicated that class 

members other than themselves will be called to testify as witnesses or deponents. Neither do 

Plaintiffs specifically identify any non-party witnesses in the Northern District. Therefore, the 

location of these unidentified, hypothetical witnesses bears little weight in the Court’s analysis. See 

Wilson, 2011 WL 4345079, at *4 (finding that the location of putative class members carried little 

weight in the convenience of witnesses analysis where there was no indication that class members 

other than the plaintiffs would be needed to testify); Johns v. Panera Bread Co., No. 08–1071 SC, 

2008 WL 2811827, at *3 (N.D. Cal. July 21, 2008) (noting that because “‘the Court lacks any 

indication of how many people from the putative class are anticipated to be witnesses, and what 

their relevant testimony would be’ . . . the Court ‘cannot base a decision to transfer based on 

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speculation as to the relevance of potential, but unnamed, witnesses.’” (quoting Flint, 2007 WL 

4365481, at *4) (citation omitted)). 

Abercrombie counters that this factor weighs substantially in favor of transfer because the 

majority of potential witnesses—including most of the Plaintiffs’ co-workers and supervisors—are 

located in the Central District. (Motion at 10.) However, the Court affords less weight to the 

argument as Abercrombie currently employs those witnesses. The Court notes, however, that 

Abercrombie has neither identified its potential witnesses nor outlined the substance or relevance of 

their testimony. See Florens Container v. Cho Yang Shipping, 245 F. Supp. 2d 1086, 1093 (N.D. 

Cal. 2002) (finding that the moving party failed to establish that this factor favors transfer because 

it did not identify key witnesses to be called or present a statement as to the importance of their 

testimony); Williams, 157 F. Supp. 2d at 1108 (“To demonstrate inconvenience of witnesses, the 

moving party must identify relevant witnesses, state their location and describe their testimony and 

its relevance.”). 

Neither party has made a particularly strong showing of inconvenience here, as neither has 

specifically identified any potential non-party witnesses. Nevertheless, on balance, this factor 

weighs in favor of transfer. As this is an employment action involving disputes over rest periods, 

employment policies, and payment practices, the probable witnesses will likely include Plaintiffs’ 

current and former managers and supervisors. Of the 39 managers who have managed stores at 

which Brown has worked, 31 have been at stores in the Central District. (Fugarino Decl. ISO 

Reply ¶ 4.) Silva has worked exclusively in the Central District. (Fugarino Decl. ISO Mot. ¶ 15.) 

Further, because Plaintiffs have worked predominately in the Central District, to the extent that 

current or former co-workers may need to testify or be deposed, it is not unreasonable to conclude 

that the majority of these potential witnesses are more likely to be located in the Central District 

than in the Northern District. (Id. ¶¶ 8, 15.) While the Court affords little weight to partywitnesses, there is a distinct possibility that some of these potential witnesses will no longer be 

employed by Abercrombie. Because the convenience to non-party witnesses is of paramount 

concern, the location of these possible witnesses is given greater weight. Thus, on balance, this 

factor weighs in favor of transfer. See Wilson, 2011 WL 4345079, at *4 (finding this factor to 

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weigh toward transfer in a wage and hour action where the plaintiffs’ managers and co-workers 

were the principal witnesses and “largely resid[ed] in the [transferee] district”). 

4. Ease of Access to the Evidence 

The location of evidence may be an important factor in a convenience and fairness analysis. 

Vu, 602 F. Supp. 2d at 1156. However, this factor is neutral or carries only minimal weight when 

the evidence is in electronic form. See, e.g., Sarinara v. DS Waters of Am. Inc., No. C-13-0905 

EMC, 2013 WL 3456687, at *2 (N.D. Cal. July 9, 2013) (finding ease of access to evidence to be a 

neutral factor “given the availability of digital records”); Friends of Scot., Inc. v. Carroll, No. C-12-

1255 WHA, 2013 WL 1192956, at *3 (N.D. Cal. Mar. 22, 2013) (“[W]ith technological advances 

in document storage and retrieval, transporting documents does not generally create a burden.”). 

Here, Abercrombie argues that the majority of the relevant stores, garments, documents, and 

data is located in the Central District. (Motion at 11.) However, Plaintiffs correctly counter that 

the electronic transportation of documents does not impose a burden on Abercrombie in litigating 

in the Northern District. (Opp’n at 7.) 

Because the documentary evidence in this case likely will be produced in electronic form, 

the Court finds this factor to be neutral. 

5. Local Interest in the Controversy 

The next factor courts consider is the local interest in deciding local controversies. Van 

Slyke v. Capital One Bank, 503 F. Supp. 2d 1353, 1365 (N.D. Cal. 2007) (citing Decker Coal, 805 

F.2d at 843). 

Abercrombie argues that this factor weighs toward transfer because the majority of the 

incidents giving rise to this action occurred in the Central District. (Motion at 11-12.) Plaintiffs 

counter that this District has an equal interest due to the presence of Abercrombie stores in the 

Northern District and the fact that members of the putative class also reside here. (Opp’n at 6.) 

While this factor is somewhat neutralized by the presence of Abercrombie stores in both districts,4

the fact that the majority of events occurred in the Central District creates a greater interest in the 

 

4

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automatically yields a reliable measure of the districts’ relative “connection” or “interest in” the 

litigation. The analysis requires subtle, careful weighing, not a mechanical count. 

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controversy in that district. See Vu, 602 F. Supp. 2d at 1157 (finding that, while the transferee 

district’s interest was not substantially stronger than the transferor’s, it “nevertheless maintains 

stronger because the events at issue took place there”). The Court finds this factor to weigh in 

favor of transfer. 

6. Relative Court Congestion and Time of Trial in Each Forum 

The relative docket congestion of the respective forums may be relevant to the Court’s 

decision on whether to transfer. Ctr. for Food Safety v. Vilsack, No. C 11-00831 JSW, 2011 WL 

996343, at *8 (N.D. Cal. March 17, 2011). “This factor examines whether a trial may be speedier 

in another court because of its less crowded docket. To measure congestion, courts compare the 

two fora's median time from filing to disposition or trial.” Id. (internal quotation marks and 

citations omitted).

The parties submitted differing sets of data in support of their positions. Abercrombie cited 

data on the median time intervals from filing to disposition of civil cases in the district courts for 

the twelve-month period ending March 31, 2012. (Dkt. No. 12.) Plaintiffs submitted the same 

information for the period ending March 31, 2013. (Dkt. No. 21, Ex. A.) The Court considers the 

most recent set of data as more relevant. As of March 31, 2013, the median times from filing to 

disposition and filing to trial in the Northern District of California are 6.4 months and 27.5 months, 

respectively. (Id.) In the Central District, the median times from filing to disposition and filing to 

trial are 5.4 months and 20 months, respectively. (Id.) The net difference, then, is 1 month from 

filing to disposition and 7.5 months from filing to trial. The Court finds that there is no meaningful 

difference between the two districts’ median resolution times. See Hansell v. TracFone Wireless, 

Inc., No. C-13-3440 EMC, 2013 WL 6155618, at *5 (N.D. Cal. Nov. 22, 2013) (finding it 

“unclear” whether there was an appreciable difference in relative congestion where the median 

times to disposition and trial in the transferor district were 1.6 months longer and 14.8 months 

longer, respectively, than those in the transferee district). Therefore, this factor is neutral or weighs 

slightly in favor of transfer. 

/// 

/// 

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7. Balancing the Discretionary Factors 

Balancing the relevant factors, only Plaintiffs’ choice of forum weighs against transfer. 

However, this is afforded the lowest deference possible because this is a putative class action, the 

plaintiffs do not reside in the Northern District, and the Northern District’s connection to the 

activities giving rise to the complaint is comparatively weaker than that of the Central District. The 

remaining factors are either neutral or weigh in favor of transfer, including the convenience of 

witnesses factor which is of utmost import. Based upon the relative balancing of each factor, the 

Court finds that Abercrombie has made a sufficiently strong showing of inconvenience to warrant 

transfer. See Wilson, 2011 WL 4345079, at *6 (citing Decker Coal, 805 F.2d at 843). 

IV. CONCLUSION 

For the reasons stated above, Defendants’ Motion to Transfer Venue to the Central District 

of California is GRANTED. 

This Order terminates Docket No. 11. 

The Clerk is directed to transfer the file in this case to the Central District of California. 

IT IS SO ORDERED.

Date:February 14, 2014 _______________________________________ 

 YVONNE GONZALEZ ROGERS

 UNITED STATES DISTRICT COURT JUDGE

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