1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 JENNIFER A. BAXTER, No. 2:19-cv-01532-JAM-CKD 13 Plaintiff, 14 v. ORDER GRANTING DEFENDANT’S

MOTION TO CHANGE VENUE

15 THOR MOTOR COACH, INC.; DEMARTINI RV SALES; and DOES 16 1-20, 17 Defendants. 18 19 This matter is before the Court on Defendant Thor Motor 20 Coach, Inc.’s (“Defendant”) Motion to Change Venue. Mot., ECF 21 No. 9. Plaintiff Jennifer Baxter (“Plaintiff”) filed an 22 opposition, ECF No. 16, to which Defendant replied, ECF No. 19. 23 After consideration of the parties’ briefing on the motion and 24 relevant legal authority, the Court GRANTS Defendant’s Motion to 25 Change Venue.1 26

27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled 28 for April 7, 2020. 1 I. BACKGROUND 2 Plaintiff purchased a 2018 Thor Aria 3901 motor home from 3 DeMartini RV Sales on June 14, 2017. First Amended Complaint 4 (“FAC”), ECF No. 15, ¶ 4. With the purchase, Plaintiff received 5 an express limited warranty from Defendant and an implied 6 warranty of merchantability. FAC ¶ 5. Plaintiff alleges that 7 during the warranty period, Defendant failed to repair defects in 8 the motor home. Id. at ¶ 6. These defects allegedly existed 9 when Defendant sold Plaintiff the motor home. Id. at ¶ 7. 10 Defendant then refused to reimburse Plaintiff or replace the 11 defective motor home. Id. at ¶ 9. 12 On July 12, 2019, Plaintiff filed suit against Defendant in 13 Nevada County Superior Court for violations of the Song Beverly 14 and Magnuson-Moss Consumer Warranty Acts. See Notice of Removal, 15 ECF No. 1. The case was removed to this Court on August 9, 2019. 16 Id. Defendant now moves for the Court to change the venue of 17 this case from the Eastern District of California to the Northern 18 District of Indiana based on a forum-selection clause in the 19 warranty that accompanied the motor home purchased by Plaintiff. 20 Mot. at 4–7. Plaintiff opposes, arguing she was given no notice 21 of the clause prior to purchasing the motor home. Opp’n at 5–8. 22 II. OPINION 23 A. Legal Standard 24 “For the convenience of parties and witnesses, in the 25 interest of justice, a district court may transfer any civil 26 action to any other district or division where it might have 27 been brought or to any district or division to which all parties 28 have consented.” 28 U.S.C. § 1404(a). Section 1404(a) seeks to 1 “prevent the waste of time, energy and money and to protect 2 litigants, witnesses and the public against unnecessary 3 inconvenience and expense[.]” Van Dusen v. Barrack, 376 U.S. 4 612, 616 (1964) (internal quotation marks omitted). 5 In considering a motion to change venue, “[t]he presence of 6 a forum-selection clause . . . will be a significant factor that 7 figures centrally in the district court’s calculus.” Stewart 8 Org. v. Ricoh Corp., 487 U.S. 22, 20 (1988) (quoting Van Dusen, 9 376 U.S. at 622). A valid forum-selection clause constitutes 10 the parties’ agreement as to the most appropriate forum. Atl. 11 Marine Const. Co. v. U.S. Dist. Court for W. Dist. of Texas, 571 12 U.S. 49, 63 (2013). Thus, the “court should ordinarily transfer 13 the case to the forum specified in that clause. Only under 14 extraordinary circumstances unrelated to the convenience of the 15 parties should a § 1404(a) motion be denied.” Id. 16 The party seeking to defeat the forum-selection clause 17 bears the burden of demonstrating “that the transfer to the 18 forum for which the parties bargained is unwarranted.” Id. To 19 defeat the clause, the party must “clearly show that enforcement 20 would be unreasonable and unjust.” M/S Bremen v. Zapata Off- 21 Shore Co., 407 U.S. 1, 15 (1972). A forum selection clause may 22 be deemed unreasonable if: (1) the inclusion of the clause in 23 the agreement was the product of fraud or overreaching; (2) the 24 party wishing to repudiate the clause would effectively be 25 deprived of her day in court were the clause enforced; and 26 (3) enforcement would contravene a strong public policy of the 27 forum in which suit is brought. Holland Am. Line, Inc. v. 28 Wartsila N. Am., Inc., 485 F.3d 450, 458 (9th Cir. 2007). 1 Accordingly, when presented with such an agreement, the 2 court must disregard plaintiff’s choice of forum and the 3 parties’ private interests. Atl. Marine, 571 U.S. 49, 64. 4 Instead, it can only “consider arguments about public-interest 5 factors” and “those factors will rarely defeat a transfer 6 motion.” Id. The party acting in violation of the forum- 7 selection clause bears the burden of showing that public- 8 interest factors “overwhelmingly disfavor a transfer.” 9 Id. at 67. 10 B. The Forum-Selection Clause 11 The forum-selection clause at issue is included in Thor 12 Motor Coach’s Limited Warranty. Mot. at 2. The clause dictates 13 that courts within Indiana have “exclusive jurisdiction” to 14 decide disputes arising out of the sale of the motor home. See 15 Limited Warranty, Ex. 1 to Opp’n, ECF No. 16-3, p. 14. This 16 language indicates that any litigation over the motor home must 17 be initiated in Indiana. Hunt Wesson Foods, Inc. v. Supreme Oil 18 Co., 817 F.2d 75, 77 (9th Cir. 1987) (“[I]n cases in which forum 19 selection clauses have been held to require litigation in a 20 particular court, the language of the clauses clearly required 21 exclusive jurisdiction.”) (emphasis in original). The mandatory 22 nature of the forum-selection clause is not in dispute. 23 Opp’n at 2. 24 Plaintiff contends the case should not be transferred for 25 two reasons. First, Plaintiff argues the forum-selection clause 26 is invalid and unreasonable because Defendant failed to inform 27 Plaintiff of the existence of the forum-selection clause and 28 failed to make the clause available to Plaintiff prior to sale. 1 Opp’n at 5–9. Second, Plaintiff contends enforcement of the 2 clause would contravene California public policy. The Court is 3 not persuaded by either contention, as explained below. 4 1. Validity 5 Plaintiff argues the forum-selection clause is invalid 6 because Defendant violated the Magnuson-Moss Warranty Act’s 7 requirement that the terms of a written warranty be disclosed 8 and made available to the consumer prior to the sale of the 9 product. 15 U.S.C. § 2302(a)-(b). The Act requires written 10 warranties to “fully and conspicuously disclose in simple and 11 readily understood language the terms and conditions of such 12 warranty.” 15 U.S.C. § 2302(a). This may require including 13 “[a] brief, general description of the legal remedies available 14 to the consumer.” 15 U.S.C. § 2302(a)(9). The Act further 15 requires that “the terms of any written warranty . . . be made 16 available to the consumer . . . prior to the sale of the product 17 to him.” 15 U.S.C. § 2302(b)(1)(A). Upon reviewing the facts 18 presented by the parties, the Court finds Defendant did not run 19 afoul of these provisions. 20 According to Plaintiff, on the day she purchased the motor 21 home, the salesperson at DeMartini RV Sales instructed her to 22 sign the Sales Contract. Jennifer A. Baxter Declaration 23 (“Baxter Decl.”), ECF No. 16-1, ¶ 4. Plaintiff was also 24 instructed to sign the “Registration and Acknowledgment of 25 Receipt of Warranty and Product Information” (“Acknowledgment 26 Form”). Id. at ¶ 9. Across the top of the Acknowledgment Form, 27 bolded and in all caps, it says, “Important: The Customer is 28 Required to Read this Document Before Signing it.” 1 Acknowledgment Form, Ex. E to Motion, ECF No. 9-4. The 2 Acknowledgment Form goes on to say, in relevant part: “You the 3 purchaser, should not submit this form until [] you have 4 received and reviewed the Limited Warranty and owner’s manual 5 . . . .”; and “Before I purchased this vehicle, I received, read 6 and agreed to the terms and conditions of Thor Motor Coach’s 7 1 page Limited Warranty, published within its Owner’s Manual, 8 and the Chassis Limited Warranty.” Id. Plaintiff asserts she 9 did not receive or review either warranty prior to signing the 10 Sales Contract or the Acknowledgment Form. Baxter Decl. at 11 ¶ 10. 12 While Plaintiff may not have received or reviewed the 13 Limited Warranty prior to purchasing the motor home, having read 14 the Acknowledgment Form in full, she cannot claim she was 15 unaware of the Limited Warranty’s existence. Nor can she claim 16 not to have known that the Limited Warranty was located inside 17 the Owner’s Manual. The Acknowledgment Form repeatedly mentions 18 the Limited Warranty and directs the reader to where it can be 19 found. See Authorization Form. Moreover, the Acknowledgment 20 Form discourages the purchaser from signing it prior to 21 reviewing the Limited Warranty. Id. (“You the purchaser, should 22 not submit this form until [] you have received and reviewed the 23 Limited Warranty . . . .”). 24 Because the Acknowledgement Form notified Plaintiff of the 25 existence of the Limited Warranty, it was, in essence, “made 26 available to [her] . . . prior to the sale of the product 27 . . . .” See 15 U.S.C. § 2302(b)(1)(A). A review of the Limited 28 Warranty reveals that it discloses “in simple and readily 1 understood language [its] terms and conditions . . . ,” 2 including “[a] brief, general description of the legal remedies 3 available to the consumer.” 15 U.S.C. § 2302(a)(9); see Limited 4 Warranty, ECF No. 16-3. Accordingly, the Limited Warranty does 5 not violate the Magnuson-Moss Warranty Act and the Court, thus, 6 declines to invalidate its forum-selection clause. See Doe I v. 7 AOL LLC, 552 F.3d 1077, 1083 (9th Cir. 2009) (“[a] forum 8 selection clause is presumptively valid; the party seeking to 9 avoid a forum selection clause bears a ‘heavy burden’ to 10 establish a ground upon with [the court] will conclude the 11 clause is unenforceable.”). 12 2. Reasonableness 13 Plaintiff next argues the forum-selection clause is 14 unreasonable because the Acknowledgement Form is a contract of 15 adhesion which provided no notice of the clause and the parties 16 were in an unequal bargaining position. See Opp’n at 7–8. As 17 an initial matter, the fact that the clause was presented in a 18 contract of adhesion is insufficient to demonstrate that it is 19 unreasonable. See Tompkins v. 23andMe, Inc., 840 F.3d 1016, 20 1029 (9th Cir. 2016). Further, Plaintiff was made aware of the 21 existence of the Limited Warranty containing the forum-selection 22 clause when she signed the Acknowledgment Form. Thus, for the 23 above-described reasons, Plaintiff received adequate notice. 24 The Court is not persuaded by Plaintiff’s unsupported 25 argument that she found herself in an unequal bargaining 26 position. See Opp’n at 8–9. Forum-selection clauses are 27 enforceable even when the terms of the contract are not subject 28 to negotiation. See, e.g., Carnival Cruise Lines, Inc., 499 1 U.S. at 593–94 (upholding a forum-selection clause pre-printed 2 in each passenger’s cruise ticket contract). In other words, 3 even where a purchaser allegedly has no bargaining power, a 4 forum-selection clause is not necessarily unreasonable. 5 Accordingly, the Court declines to find this forum-selection 6 clause unreasonable. 7 3. Public Policy 8 Finally, Plaintiff argues that enforcement of the forum- 9 selection clause would run afoul of California’s strong public 10 policy of consumer protection. Plaintiff only points to the 11 existence of California’s Song Beverly Consumer Warranty Act, 12 Civ. Code § 1790 et seq., as evidence of this. See Opp’n at 9– 13 10. However, “absent a total foreclosure of remedy in the 14 transferee forum, courts tether their policy analysis to the 15 forum selection clause itself, finding the forum selection 16 clause unreasonable only when it contravenes a policy 17 specifically related to venue.” Rowen v. Soundview Commc’ns, 18 Inc., Case No. 14-cv-05539, WL 899294 at *4 (N.D. Cal. 2015); 19 see, e.g., Jones v. GNC Franchising, Inc., 211 F.3d 495, 497–98 20 (9th Cir. 2000) (finding forum-selection clause invalid because 21 California policy at issue specifically provided that California 22 franchisees were entitled to a California venue for franchise 23 agreement suits). 24 Plaintiff’s remedy will not be in any way foreclosed if 25 venue is transferred. Defendant stipulates that Plaintiff may 26 pursue her recently added Song Beverly Act claim in Indiana. 27 Reply at 5. And Plaintiff’s reference to the Song Beverly Act 28 as “a landmark consumer protection statute intended to provide □□□ PAINE INES RUC Oo PIO eer PAY VI

1 remedial measures to consumers such as Plaintiff” is not enough. 2 Opp’n at 9. Plaintiff has failed to identify a California 3 | policy specifically related to venue. Thus, transferring venue 4 to the Northern District of Indiana would not violate California 5 | public policy. See Hegwer v. Am. Hearing & Assocs., Case No. 6 | 1ll-cv-04942, WL 629145 at *3 (N.D. Cal. 2012) (rejecting 7 | plaintiff’s argument against transferring venue because 8 plaintiff failed to identify a specific California policy and 9 concluding that any such policy must be related to the forum- 10 selection clause itself given that no foreclosure of remedy 11 would exist in the transferee forum). 12 In sum, Plaintiff has not satisfied the “heavy burden” of 13 showing the forum-selection clause at issue to be unenforceable. 14 |} AOL LLC, 552 F.3d at 1083. Accordingly, the forum-selection 15 clause applies in full force and the matter is transferred to 16 | the Northern District of Indiana. 17 IIl. ORDER 18 For the reasons set forth above, the Court GRANTS 19 Defendant’s Motion to Change Venue. 20 IT IS SO ORDERED. 21 Dated: April 20, 2020 22 Me 23 Benlek, sunk 24 25 26 27 28