Brian Vester v. Werner Enterprises, Inc., 5:17-cv-00096

Plaintiffs Brian Vester and Joel Morales (California residents) filed a putative class action alleging California wage-and-hour violations against Werner Enterprises and Drivers Management, asserting piece-rate pay, missed meal/rest breaks, inaccurate wage statements, unlawful deductions, unpaid termination wages, and UCL violations.
The proposed class covers drivers who worked exclusively in California from Dec. 15, 2012 to class certification.
Defendants removed the case to federal court and moved to transfer venue to the District of Nebraska under the first-to-file rule, noting related consolidated actions (Abarca/Smith) pending there.
Plaintiffs opposed transfer and filed a motion to remand asserting insufficient amount-in-controversy and that Nebraska actions involve interstate drivers not California-only drivers.
The court found the Nebraska action (Abarca, lead case) was filed first and that its broadly defined California class subsumes Plaintiffs’ proposed class; the court concluded the parties and issues are substantially similar and granted transfer to Nebraska.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether to apply the first-to-file rule to transfer venue	Vester: Nebraska actions involve interstate drivers and complex choice-of-law issues; Plaintiffs’ intrastate California-only class is not subsumed	Werner: Nebraska action (Abarca) was filed first and its broad California class includes plaintiffs who worked exclusively in California; issues overlap	Transfer under the first-to-file rule granted; Nebraska action filed first and classes/issues substantially similar
Whether the parties are substantially similar for first-to-file purposes	Vester: Unclear that putative class here is included in Nebraska class; class representatives differ	Werner: Nebraska FAC defines a California Class that plainly includes drivers who picked up/dropped off in California, including California-only drivers	Parties sufficiently similar; factor favors transfer
Whether the issues are substantially similar	Vester: Nebraska case raises choice-of-law and individualized factual determinations	Werner: Nebraska FAC asserts essentially the same wage-and-hour claims and will resolve the same facts/legal issues	Issues substantially similar; factor favors transfer
Effect of transfer on Plaintiffs’ motion to remand	Vester: Remand argued on amount-in-controversy and state-court suitability	Werner: Transfer is appropriate so remand is moot in this district	Court held remand motion moot because it granted transfer

Pacesetter Sys., Inc. v. Medtronic, Inc., 678 F.2d 93 (9th Cir. 1982) (recognizing the first-to-file rule as a doctrine of federal comity)
Alltrade, Inc. v. Uniweld Prods., Inc., 946 F.2d 622 (9th Cir. 1991) (setting factors for applying first-to-file and exceptions like bad faith or forum shopping)
Church of Scientology of Cal. v. United States Dep’t of the Army, 611 F.2d 738 (9th Cir. 1979) (describing purpose and deference of the first-to-file rule)
Cedars-Sinai Med. Ctr. v. Shalala, 125 F.3d 765 (9th Cir. 1997) (contrasting different-issue suits for first-to-file analysis)
Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., 342 U.S. 180 (U.S. 1952) (discussing federal comity and parallel suits)
Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741 (9th Cir. 2006) (courts may take judicial notice of public records and court filings)
Adoma v. Univ. of Phoenix, Inc., 711 F. Supp. 2d 1142 (E.D. Cal. 2010) (classes in separate actions can be substantially similar even before certification)
Shook v. Indian River Transp. Co., 72 F. Supp. 3d 1119 (E.D. Cal. 2014) (discussing piece-rate pay and rest period pay obligations)