United States District Court Judge William Alsup (Northern District of California) denied a motion by defendant P.F.Chang's China Bistro, Inc. to transfer a putative wage & hour class action to the Central District of California. Dubee v. P.F. Chang's China Bistro, Inc., 2010 WL 3323808 (N.D. Cal. Aug. 23, 2010). Defendant asserted the "first-to-file rule" and an earlier case pending in the Central District as grounds for the transfer. After explaining that the "first-to-file rule is an underdeveloped but generally recognized legal doctrine regarding duplicative lawsuits," the Court denied the motion:
When deciding whether to apply the first-to-file rule, the court looks to three threshold factors: (1) the chronology of the two actions; (2) the similarity of the parties; and (3) the similarity of issues. Ibid. The two actions need not be identical; it is enough that they are “substantially similar.” Nakash v. Marciano, 882 F.2d 1411, 1416 (9th Cir.1989).
In the instant action, the first factor of chronology is met. The Vasquez action was filed over a year before the instant action. The second factor, however, is not met. While P.F. Chang's China Bistro is the defendant in both actions, the plaintiffs are neither the same nor “substantially similar.” As stated, while the Vasquez action was originally filed as a putative class action, it is now proceeding solely as an individual action. In the instant case, plaintiff Dubee is proceeding as a representative plaintiff on behalf of himself and all other California P.F. Chang's employees that are similarly situated. While this class-if certified-could encompass the plaintiff in Vasquez, the claims asserted by the plaintiff in Vasquez do not (and will not) encompass plaintiff and the putative class in the instant action. For this reason, the two actions are not substantially similar with respect to the parties involved.
Slip op., at 2. The Court noted as significant the fact that certification was never briefed in Vasquez.