Woods et al v. Santander Consumer USA Inc

Filing 101

MEMORANDUM OPINION AND ORDER - For the reasons discussed above, the Court denies Santanders motion to dismiss the claims of the Tennessee plaintiffs and Santanders motion to dismiss and alternative motion to transfer the claims of the out-of-district Alabama plaintiffs. (See Doc. 41). On or before June 17, 2016, the parties shall confer and file a Rule 26(f) report that addresses the claims of all plaintiffs. Plaintiff Clifton Whearlee may respond to Santanders pending motion for summary judgment on or before June 17, 2016. Santander may file a reply on or before July 1, 2016. Signed by Judge Madeline Hughes Haikala on 6/3/2016. Associated Cases: 2:14-cv-02104-MHH, 2:15-cv-00919-MHH(KEK)

FILED
2016 Jun-03 PM 04:06
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CARMEN WOODS, ET AL.,

)
)
Plaintiffs
)
)
vs.
)
)
SANTANDER CONSUMER USA, )
INC.,
)
)
Defendant.
)

NORMA WILLIAMS, ET AL.
Plaintiffs,
vs.

SANTANDER CONSUMER
USA, INC.,
Defendant.

CASE NO. 2:14-CV-02104-MHH

)
)
)
)
)
CASE NO. 2:15-CV-00919-MHH
) Consolidated with 2:14-CV-02104-MHH
)
)
)
)
)

MEMORANDUM OPINION AND ORDER1
This opinion addresses two pending motions to dismiss in Williams v.
Santander. In Williams, the plaintiffs assert claims against defendant Santander
Consumer USA, Inc. for alleged violations of the Telephone Consumer Protection
1

The Court vacates its March 31, 2016 order. (Doc. 41). The Court substitutes this
memorandum opinion and order in place of the March 31, 2016 order.

Act or TCPA. The plaintiffs bought cars and used consumer loans to finance the
purchases. The plaintiffs allege that Santander acquired their loans, and, in an
attempt to collect the debts that the plaintiffs owed, used an automated service to
call the plaintiffs’ cell phones without the plaintiffs’ express prior consent. (Doc.
1, ¶¶ 27, 28, 30).2
Initially, twenty-one plaintiffs sued Santander in the Williams case. (Doc.
1). To date, eight plaintiffs have dismissed their claims voluntarily. (See Docs.
14-17). Santander asks the Court to dismiss the claims of 12 of the remaining 13
plaintiffs. Pursuant to Federal Rule of Civil Procedure 12(b)(2), Santander asks
the Court to dismiss the claims of eight plaintiffs who reside in Tennessee and
bought their cars in Tennessee. Santander argues that the Court lacks personal
jurisdiction over the company with respect to the claims of those eight plaintiffs.
(Doc. 6). Pursuant to Federal Rule of Civil Procedure 12(b)(3), Santander asks the
Court to dismiss the claims of four Alabama plaintiffs for improper venue because
the plaintiffs bought their vehicles outside of the Northern District of Alabama.
(Doc. 7). For the reasons explained below, the Court finds that it may exercise

2

In this opinion, unless otherwise stated, Doc. cites pertain to the docket entries in Williams,
Case No. 15-cv-919.

2

personal jurisdiction over Santander with respect to all of the plaintiffs’ claims, and
venue is proper in this district.3
I.

Rule 12(b)(2) Motion to Dismiss
Rule 12(b)(2) authorizes a defendant to challenge a court’s jurisdiction over

the defendant. The jurisdictional issue in this case turns on the constitutional
principles that animate the concept of personal jurisdiction. As discussed below,
Santander is an out-of-state corporate defendant. Santander acknowledges that this
Court may exercise jurisdiction over the company with respect to the Alabama
plaintiffs’ TCPA claims. Santander challenges this Court’s jurisdiction only with
respect to the Tennessee plaintiffs who have joined with the Alabama plaintiffs to
pursue claims against Santander in this forum. Stated simply, Santander argues
that it would be unfair for the company to have to defend the claims of the
Tennessee plaintiffs in this forum. Under the circumstances of this case, the Court
disagrees.
The analysis of personal jurisdiction revolves almost entirely around the
defendant’s conduct, not the plaintiff’s conduct. When the analysis involves a
corporate defendant like Santander, the Court must begin by determining whether
the corporation is a resident of the forum state. Generally speaking, a corporation

3

The Court held a hearing on the motions on December 2, 2015. A court reporter was present,
and a transcript is available upon request.

3

resides in its state of incorporation and in the state in which it has its principal
place of business. Daimler AG v. Bauman, 134 S. Ct. 746, 760-62 (2014). It is
undisputed that Santander is incorporated in Illinois, and its principal place of
business is in Texas. (Doc. 1, ¶ 22; Doc. 6-1, ¶ 4). Therefore, the Court regards
Santander as an out-of-state defendant.4
In determining whether to exercise personal jurisdiction over an out-of-state
defendant, a federal court must consider (1) whether the exercise of jurisdiction is
permitted by the state long-arm statute, and (2) whether the exercise of jurisdiction
would violate the Due Process Clause of the Fourteenth Amendment to the United
States Constitution. United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir.
2009). The two inquiries merge in this case because “Alabama’s long-arm statute
permits service of process to the fullest extent constitutionally permissible.” Sloss
4

When a question about personal jurisdiction turns on disputed facts, a court uses a burdenshifting test to examine the issue. A plaintiff “‘bears the initial burden of alleging in the
complaint sufficient facts to make out a prima facie case of [personal] jurisdiction.’” Louis
Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1350 (11th Cir. 2013) (quoting United Techs.
Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009)). A court must accept as true the
jurisdictional allegations in the plaintiff’s complaint unless “a defendant challenges personal
jurisdiction ‘by submitting affidavit evidence in support of its position.’” Id. (quoting Madara v.
Hall, 916 F.2d 1510, 1514 (11th Cir. 1990) (internal quotation marks omitted)). If that happens,
then the burden shifts back to the plaintiff to provide evidence supporting the court’s exercise of
jurisdiction over the defendant “unless the defendant’s affidavits contain only conclusory
assertions that the defendant is not subject to jurisdiction.” Stubbs v. Wyndham Nassau Resort &
Crystal Palace Casino, 447 F.3d 1357, 1360 (11th Cir. 2006). When the parties present
conflicting evidence, a court “must construe all reasonable inferences in favor of the plaintiff.”
Id. A court may exercise jurisdiction over a defendant if the plaintiff “presents enough evidence
to withstand a motion for a directed verdict.” Stubbs, 447 F.3d at 1360. Here, the facts relating
to personal jurisdiction are largely undisputed. The jurisdictional issue pertaining to the eight
Tennessee plaintiffs turns on a question of law. Unless otherwise stated, the facts that the Court
cites in this section of the opinion are undisputed.
4

Indus. Corp. v. Eurisol, 488 F.3d 922, 925 (11th Cir. 2007) (citing Ala. R. Civ. P.
4.2(b)).
Under the Due Process Clause, “a State may authorize its courts to exercise
personal jurisdiction over an out-of-state defendant if the defendant has certain
minimum contacts with [the State] such that the maintenance of the suit does not
offend traditional notions of fair play and substantial justice.” Daimler, 134 S. Ct.
at 754 (quoting International Shoe Co. v. Washington, 326 U.S. 310 (1945))
(internal quotations omitted). “The Due Process Clause, by ensuring the ‘orderly
administration of the laws,’ gives a degree of predictability to the legal system that
allows potential defendants to structure their primary conduct with some minimum
assurance as to where that conduct will and will not render them liable to suit.”
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980) (quoting
International Shoe, 326 U.S. at 319).
There are two categories of personal jurisdiction: general jurisdiction and
specific jurisdiction. Daimler, 134 S. Ct. at 754. General jurisdiction “refers to the
power of a court in the forum to adjudicate any cause of action involving a
particular defendant, irrespective of where the cause of action arose” because the
defendant is “at home” in the forum. Daimler, 134 S.Ct. at 752. The forum’s
exercise of jurisdiction over the defendant in that instance does not offend
traditional notions of fair play or substantial justice because the defendant’s

5

contacts with the forum are substantial, making litigation in the forum predictable.
The Tennessee plaintiffs do not contend that this Court has general jurisdiction
over Santander. (Doc. 32, p. 5). The Court finds that Santander is not generally
subject to suit in this forum because the company is not incorporated in Alabama,
and Santander does not have its principal place of business here.5
Therefore, the Court must determine whether Santander is subject to a more
targeted exercise of jurisdiction in this forum. A forum’s limited exercise of
jurisdiction over a defendant is called specific jurisdiction. Under the concept of
specific jurisdiction, a court may hear a claim against a nonresident corporate
defendant when the defendant, through its conduct, has established minimum
contacts with the forum state such that a court’s exercise of jurisdiction over the
defendant in the forum does not violate notions of fair play. In the analysis of
specific jurisdiction, the plaintiff’s conduct is largely insignificant. “Regardless of
where a plaintiff lives or works, an injury is jurisdictionally relevant only insofar
as it shows that the defendant has formed a contact with the forum State.” Walden
v. Fiore, 134 S. Ct. 1115, 1125 (2014). “‘[T]he central concern of the inquiry’” is
the “‘relationship among the defendant, the forum, and the litigation’” Daimler,
134 S. Ct. at 754 (quoting Shaffer v. Heitner, 433 U.S. 186, 197 (1977)); see also
Walden, 134 S. Ct. at 1121. A court examining the issue of specific jurisdiction
5

This finding pertains to both the Alabama plaintiffs and the Tennessee plaintiffs.

6

must evaluate the nature of the defendant’s general contacts with the state, the
nature of the conduct at issue, the extent to which the conduct at issue impacted the
forum state generally, and the extent to which the conduct at issue directly injured
citizens of the forum state.
In its Rule 12(b)(2) motion, Santander states that it “does not dispute that
this Court has ‘specific personal jurisdiction’ over [the company] as to the claims
of Alabama plaintiffs, as well as Clifton Whearlee and Wendell Payne (Tennessee
residents who purchased vehicles in Alabama).” (Doc. 6, p. 9; see also Doc. 6, p.
5; Doc. 8, p. 9).6 But, Santander argues, there are limits to the Court’s jurisdiction
over the company. Santander posits that the Court may not exercise jurisdiction
over the company with respect to eight plaintiffs who reside in Tennessee and
bought their vehicles there because the eight plaintiffs have not “alleged any
conduct by SCUSA as to their loans that took place in Alabama,” and Santander
“did not service the Tennessee Plaintiffs’ loans from Alabama.” (Doc. 6, p. 11).
Santander contends that allowing the eight Tennessee plaintiffs to travel on the
jurisdictional coattails of the Alabama plaintiffs and the Tennessee plaintiffs who
bought cars in Alabama would violate due process.

6

Since Santander filed its motion to dismiss, one of those two Tennessee residents voluntarily
dismissed his TCPA claim.

7

Santander’s argument misses the mark. The conduct at issue in this TCPA
action concerns auto-dialer calls that Santander placed to the plaintiffs’ cell phones
as part of Santander’s debt collection activities; the original vehicle sales
transactions are of limited significance to the plaintiffs’ claims.

Santander’s

conduct – both its general conduct within the State of Alabama and the specific
conduct that gives rise to this TCPA action – provides a constitutional basis for this
Court to exercise jurisdiction over the company with respect to the claims of the
eight Tennessee plaintiffs.
For a court “to exercise jurisdiction consistent with due process, the
defendant’s suit-related conduct must create a substantial connection with the
forum State.” Walden, 134 S. Ct. at 1121. There are “[t]wo related aspects of this
necessary relationship.” Id. at 1121-22. “First, the relationship must arise out of
contacts that the ‘defendant himself’ creates with the forum State.” Id. at 1122
(emphasis in Walden). Second, the “analysis looks to the defendant’s contacts
with the forum State itself, not the defendant’s contacts with persons who reside
there.” Id. Although the residence of the plaintiffs who live in and bought cars in
Tennessee is not “completely irrelevant to the jurisdictional inquiry,” the residence
of these plaintiffs “in the forum State is not a separate requirement, and lack of
residence will not defeat jurisdiction established on the basis of [a] defendant’s
contacts.” Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 780 (1984).

8

As stated, Santander has acknowledged its relationship with the forum. In
its answer to the claims of the Alabama plaintiffs and the two Tennessee plaintiffs
who bought vehicles in Alabama, Santander admits that the company acquired
and/or serviced the loans that those plaintiffs used to buy vehicles in Alabama.
(Doc. 8, pp. 2-5, ¶¶ 1-11, 27). Moreover, Santander acknowledges that it does
business in all 50 states, including Alabama, and the company has qualified to do
business in Alabama. (Doc. 6, pp. 14-15; Doc. 6-1, p. 2).7 Although “Alabama
borrowers represent less than 3% of the loans that [the company] services,”
Santander admits that the company “contract[s] with automobile dealers in
Alabama to provide financing for automobile loans.” (Doc. 6-1, p. 2). Thus,
Santander has created general contacts with the state of Alabama.
There also is an adequate relationship between the forum and the litigation.
Keeton, 465 U.S. at 770; Walden, supra. In this TCPA case, the plaintiffs allege

7

Under Alabama law, a foreign corporation must qualify to do business in the state. See Ala.
Code § 10A-1-7.01, et seq. In addition, to take assignments of consumer loans, Alabama law
may require Santander to obtain a license through the Alabama State Banking Department.
See Ala. Code § 5-19-22. In addition, as of January 1, 2016, Santander was licensed with the
Alabama State Banking Department. See http://216.226.177.103/ACCA_Licenses2.asp?VTIGROUP=0&search=santander&submit1=Search. The Court takes judicial notice of this fact
from the Alabama State Banking Department website because the information “can accurately
and readily be determined from sources whose accuracy cannot reasonably be questioned.” See
Fed. R. Evid. 201(b)(2); see also Coleman v. Dretke, 409, F.3d 665, 667 (5th Cir. 2005) (finding
that a previous panel did not err in taking judicial notice of a state agency website); In re
Everglades Island Boat Tours, LLC, 484 F. Supp. 2d 1259, 1261 (M.D. Fla. 2007) (taking
judicial notice of state agency website).

9

that Santander violated 47 U.S.C. § 227(b)(1)(A)(iii).8 (Doc. 1, p. 11). That
section of the TCPA makes it unlawful “to make any call (other than a call made
for emergency purposes or made with the prior express consent of the called party)
using any automatic telephone dialing system or an artificial or prerecorded voice”
to “any telephone number assigned to a . . . cellular telephone service . . . or other
radio common carrier service, or any service for which the called party is charged
for the call, unless such call is made solely to collect a debt owed to or guaranteed
by the United States.” Id.
Each plaintiff, whether from Alabama or Tennessee, contends that Santander
called the plaintiff’s cell phone on multiple occasions using a pre-recorded voice or
an automatic telephone dialing system known as the “Aspect Telephony system.”
(Doc. 1, ¶¶ 30-51).

The Alabama plaintiffs who live in and bought cars in

Alabama presumably received most of the calls in Alabama, just as the Tennessee
plaintiffs who live in and bought cars in Tennessee presumably received some –
maybe even a majority – of the calls in Tennessee. And the plaintiffs who live in
Tennessee and bought cars in Alabama presumably received a majority of the calls
in Tennessee. But the place of each plaintiff’s residence made no difference to
Santander.

Santander made the calls at issue to mobile cell phones, without

8

Congress amended the TCPA on November 2, 2015, after the plaintiffs filed their lawsuit. The
statutory provision under which the plaintiffs filed suit, 28 U.S.C. § 227(b)(1)(iii), is now
codified at 28 U.S.C. § 227(b)(1)(A)(iii).

10

concern for the location in which a borrower received a call. An automated call to
an Alabama cell phone number might reach the phone’s owner in Alabama or
Alaska, depending on the location of the phone’s owner when the call arrived. An
automated call to a Tennessee cell phone number might reach the phone’s owner in
Nashville or Nevada. It is common knowledge that a portable cellular device, i.e. a
cell phone, by definition, travels with its owner.9 Moreover, as Santander points
out, it services consumer debt in all 50 states. In structuring its debt collection
practices, Santander had to know – or at the very least reasonably should have
known – that making automated calls to cell phones of borrowers in 50 states in a
mobile society could cause the company to have to defend a TCPA claim in any
forum where a consumer received automated calls from Santander. In short, there
are no geographical boundaries on Santander’s automated cell phone collection
efforts.10 Given the nature of its business and the way in which Santander chooses

9

The Supreme Court recently explained that “there is an element of pervasiveness that
characterizes cell phones.” Riley v. California, 134 S. Ct. 2473, 2490 (2014). The Court noted
that “nearly three-quarters of smart phone users report being within five feet of their phones most
of the time[] . . . .” Id. (citing Harris Interactive, 2013 Mobile Consumer Habits Study (June
2013)). “[M]odern cell phones . . . are now such a pervasive and insistent part of daily life that
the proverbial visitor from Mars might conclude they were an important feature of human
anatomy.” Id. at 2484.
10

The series of hypotheticals that one could develop to illustrate the boundless nature of
Santander’s collection calls is equally unlimited. Assume, for example, that one of the plaintiffs
who lives in Tennessee and has a Tennessee-based cell phone number, lives in Florida for six
months of the year, and Santander only called the plaintiff’s cell phone while she was in Florida.
Santander never called the plaintiff’s cell phone while she was physically located in Tennessee.
Under this set of facts, Santander’s calls would create contacts with Florida, not Tennessee. Or,
suppose that one of the plaintiffs who lives in Alabama in a county that borders Mississippi
11

to remind borrowers of their payment obligations, Santander must have predicted
that calls to cell phones might be received in any state or even outside of the
United States. Every time a borrower has received a call in Alabama on a cell
phone, regardless of the area code, Santander has purposefully and deliberately
entered Alabama for the purpose of servicing consumer automobile loans.
Therefore, Santander must reasonably anticipate having to defend TCPA claims
under § 227(b)(1)(A)(iii) in this forum.

See Keeton, 465 U.S. at 774-75

(publisher’s “regular circulation of magazines in the forum State” was “sufficient
to support an assertion of jurisdiction for a libel action based on the contents of the
magazine” by an out-of-state plaintiff).
Thus, the nature of the TCPA claim and the conduct that gave rise to it
weighs in favor of this Court’s exercise of jurisdiction over Santander. The Court
rejects Santander’s assertion that exercising jurisdiction over the company with
respect to the claims of the eight Tennessee plaintiffs is tantamount to exercising
general jurisdiction over Santander. The Court has not suggested and does not
hold that Santander may be sued in Alabama generally, regardless of the nature of
the cause of action. Instead, the Court finds that Santander is subject to specific
jurisdiction in Alabama with respect to the plaintiffs’ TCPA claims.

works in Mississippi, and received calls from Santander only while he was at work. In that case,
Santander’s calls would create contacts with Mississippi, not Alabama.

12

The Court’s exercise of jurisdiction over Santander under the specific
circumstances of this TCPA action reflects “changes in the technology of
transportation and communication, and the tremendous growth of interstate
business activity.” Burnham v. Superior Court of Cal.,Cnty. of Marin, 495 U.S.
604, 617 (1990)). As the Supreme Court has stated repeatedly, due process is an
“evolving concept” and may not always be offended when plaintiffs from different
forums, who fall short of the numbers needed to form a class, join together to try
their cases. See Gore v. United States, 357 U.S. 386, 392 (1958). Nearly sixty
years ago, in its landmark Hanson v. Denkla opinion, the Supreme Court observed:
As technological progress has increased the flow of commerce
between States, the need for jurisdiction over nonresidents has
undergone a similar increase. At the same time, progress in
communications and transportation has made the defense of a suit in a
foreign tribunal less burdensome. In response to these changes, the
requirements for personal jurisdiction over nonresidents have evolved
from the rigid rule of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, to
the flexible standard of International Shoe Co. v. State of Washington,
326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95.
Hanson v. Denckla, 357 U.S. 235, 250-51 (1958). New ways of communicating
and doing business have brought with them new ways of committing tortious acts
and regulatory violations, and courts have responded with context-sensitive
analyses of personal jurisdiction. See, e.g., Zippo Mfg. Co. v. Zippo Dot Com, Inc.,
952 F. Supp. 1119 (W.D. Pa. 1997).

13

There simply is no constitutional harm in compelling Santander to defend
TCPA claims of plaintiffs from both Alabama and Tennessee in this forum when
Santander created contacts with Alabama and designed a means of debt collection
that makes litigation of all of these claims in Alabama both fair and efficient.
Indeed, Alabama has an interest in providing a forum for “efficiently litigating all
issues and damage claims” arising out of Santander’s allegedly improper calls that
are part of this action. Keeton, 465 U.S. at 777. Santander’s attempt to use the due
process clause as a tool to whittle down this action and scatter to a host of forums
plaintiffs seeking a statutory damages award for the same alleged misconduct
greatly – and perhaps prohibitively – increases for consumers the expense of
enforcing the statute that is supposed to protect them and simultaneously increases
the burden on federal court dockets and the risk of inconsistent results across
forums.11 “[T]he Due Process Clause may not readily be wielded as a territorial
shield to avoid interstate obligations that have been voluntarily assumed.” Burger
King Corp., 471 U.S. at 474.
Santander has accepted the benefits of doing business in Alabama, and the
company is subject to this TCPA action here because the litigation relates to
11

Santander began its defense of the plaintiffs’ TCPA claims with a motion to consolidate the
Williams case with Case No. 14-cv-2104-MHH, Woods v. Santander. (Doc. 5). In its motion,
Santander stated that “having the same judge consistently address these questions would serve
the expeditions administration of justice.” (Doc. 5, p. 9). Furthermore, Santander suggested that
having a single judge hear the case would reduce the “risk of inconsistent intra-district decisions,
which could cause confusion and uncertainty.” (Doc. 5, p. 9).

14

Santander’s conduct in this forum. When the record demonstrates that a defendant
has sufficient minimum contacts with a forum, a court must deny a Rule 12(b)(2)
motion to dismiss unless the defendant makes a “compelling case” that the exercise
of jurisdiction would violate traditional notions of fair play and substantial justice.
Diamond Crystal Brands, Inc. v. Food Movers Int’l, Inc., 593 F.3d 1249, 1267
(11th Cir. 2010). Santander’s argument is not compelling.
II.

Rule 12(b)(3) Motion to Dismiss or Transfer
Pursuant to Federal Rule of Civil Procedure 12(b)(3), a party may move to

dismiss a claim for improper venue. When considering a Rule 12(b)(3) motion, a
court “consciously look[s] beyond the mere allegations of a complaint, and,
although [the court] continue[s] to favor the plaintiff’s facts in the context of any
actual evidentiary dispute, [the court] do[es] not view the allegations of the
complaint as the exclusive basis for decision.”

Estate of Myhra v. Royal

Caribbean Cruises, Ltd., 695 F.3d 1233, 1239 (11th Cir. 2012). The Court’s ruling
under Rule 12(b)(3) is reviewed “with some measure of deference.” Id. at 123839.
Plaintiffs Myra Ball, Grover Scott, and Ludie Scott purchased vehicles in
Alabama, but none of those sales transactions occurred in the Northern District of
Alabama. Ms. Ball bought a vehicle in Andalusia, Alabama; Andalusia is within
the Middle District of Alabama. (Doc. 1, ¶ 4). Mr. and Mrs. Scott bought a

15

vehicle in Mobile, Alabama; Mobile is in the Southern District. (Doc. 1, ¶¶ 7-8).
Plaintiff Amanda Hale lives in Elmore County, Alabama. Her husband bought a
vehicle at Budget Auto Sales. The complaint does not state where Budget Auto
Sales is located. (Doc. 1, ¶ 9).

Ms. Ball, Mr. and Mrs. Scott, and Ms. Hale’s

husband financed their vehicles with loans that Santander acquired or serviced.
(Doc. 1, ¶¶ 4, 7-9). Santander contends that venue in the Northern District of
Alabama is improper for the four Alabama plaintiffs who reside or bought cars
outside of the judicial district. (Doc. 7, pp. 5-10).12 The Court is not persuaded by
Santander’s argument.
“When venue is challenged, the court must determine whether the case falls
within one of the three categories set out in § 1391(b). If it does, venue is proper;
if it does not, venue is improper, and the case must be dismissed or transferred
under § 1406(a).” Atlantic Marine Const. Co. v. United States District Court for
the Western District of Texas, 134 S. Ct. 568, 577 (2013). Under 28 U.S.C. §
1391(b), a plaintiff may bring an action in:
(1) a judicial district in which any defendant resides, if all defendants
are residents of the State in which the district is located;

12

Again, the conduct at issue has to do with automated collection calls that Santander allegedly
made after the initial sales transactions. The plaintiffs allege that “[o]n multiple occasions,
Santander used an autodialer or pre-recorded voice to call” their cell phones. (Doc. 1, ¶¶ 35, 3739). Ms. Ball’s and Ms. Hale’s cell phone numbers begin with a 334 area code. (Doc. 1, ¶¶ 35,
39). Mr. and Mrs. Scott’s cell phone numbers begin with a 251 area code. (Doc. 1, ¶¶ 36-37).
The 334 area code is an area code for the Middle District of Alabama. The 251 area code is an
area code for the Southern District of Alabama.
16

(2) a judicial district in which a substantial part of the events or
omissions giving rise to the claim occurred, or a substantial part of
property that is the subject of the action is situated; or
(3) if there is no district in which an action may otherwise be brought
as provided in this section, any judicial district in which any defendant
is subject to the court’s personal jurisdiction with respect to such
action.
28 U.S.C. § 1391(b).13 A corporation is a resident “in any judicial district in which
such defendant is subject to the court’s personal jurisdiction with respect to the
civil action in question . . . .” 28 U.S.C. § 1391(c)(2).14
As explained above, when the plaintiffs commenced this action, Santander
was subject to personal jurisdiction in the Northern District of Alabama as to all of
the plaintiffs’ claims. As such, Santander also is a resident of this district with

13

General venue rules apply to private actions under the TCPA. See Mims v. Arrow Fin. Servs.,
LLC, 132 S. Ct. 740, 750 n.11 (2012) (“As the general rules governing venue and service of
process in the district courts are well established, see 28 U.S.C. § 1391(b); Fed. Rules Civ. Proc.
4, 4.1, there was no need for Congress to reiterate them in section 227(b)(3).”) (internal citation
and alteration omitted).
14

Because Alabama has more than one judicial district and Santander would be subject to
personal jurisdiction in each district under the reasoning discussed above, 28 U.S.C. § 1391(d)
also applies to this case. See 28 U.S.C. § 1391(d) (“For purposes of venue under this chapter, in
a State which has more than one judicial district and in which a defendant that is a corporation is
subject to personal jurisdiction at the time an action is commenced, such corporation shall be
deemed to reside in any district in that State within which its contacts would be sufficient to
subject it to personal jurisdiction if that district were a separate State, and, if there is no such
district, the corporation shall be deemed to reside in the district within which it has the most
significant contacts.”).

17

respect to all of the plaintiffs’ claims, making venue proper in the Northern District
of Alabama under 28 U.S.C. § 1391(b)(1).15
The Court declines Santander’s alternative request to transfer pursuant to 28
U.S.C. § 1404(a) the claims of the four Alabama plaintiffs who reside or bought
cars outside of this judicial district.

Under 28 U.S.C. § 1404(a), “[f]or 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 Eleventh Circuit has identified several factors
that a court should consider when deciding whether to transfer venue under § 1404,
including: (1) the convenience of the witnesses; (2) the location of relevant
documents and the relative ease of access to sources of proof; (3) the convenience
of the parties; (4) the locus of operative facts; (5) the availability of process to
compel the attendance of unwilling witnesses; (6) the relative means of the parties;
(7) a forum’s familiarity with the governing law; (8) the weight accorded a
plaintiff’s choice of forum; and (9) trial efficiency and the interests of justice,
15

Santander did not raise improper venue as a defense in the lead case in this consolidated
action, Woods v. Santander. In Woods, nine plaintiffs assert individual TCPA claims against
Santander that are substantially similar to the claims that the Williams plaintiffs allege. Seven
Alabama plaintiffs in Woods live in either the Middle District of Alabama or the Southern
District of Alabama. (See Doc. 83, ¶¶ 2-8 in Case No. 2:14-cv-2104). As with its personal
jurisdiction argument, Santander’s venue argument in Williams seems less about fairness to the
defendant and more about gamesmanship. The divide and conquer strategy appears designed to
make it more expensive and time-consuming for the plaintiffs to pursue TCPA claims that
promise a relatively low statutory damage award to any plaintiff who successfully prosecutes a
claim.

18

based on the totality of the circumstances. Manuel v. Convergys Corp., 430 F.3d
1132, 1135 n. 1 (11th Cir. 2005). Unless the parties have contractually agreed to a
valid choice of forum provision, “the burden is on the movant to establish that the
suggested forum is more convenient.” In re Ricoh Corp., 870 F.2d 570, 573 (11th
Cir. 1989). “The decision to transfer a case to another district is left to the sound
discretion of the trial court.” Brown v. Conn. Gen. Life Ins. Co., 934 F.2d 1193,
1197 (11th Cir. 1991).
“The question of whether to transfer venue is a two-pronged inquiry. First,
the alternative venue must be one in which the action could originally have been
brought by the plaintiff.” Cellularvision Tech. & Telecomms, L.P. v. Alltel Corp.,
508 F. Supp. 2d 1186, 1189 (S.D. Fla. 2007). “The second prong involves an
element-by-element analysis. The second prong requires courts to balance private
and public factors to determine if transfer is justified.” Id.
For the reasons discussed above, the first prong of the two-part inquiry is
satisfied. The second prong is not satisfied. Only two factors weigh slightly in
favor of transferring the plaintiffs’ claims to the Middle District of Alabama or the
Southern District of Alabama: the convenience of witnesses, and the availability
of process to compel the attendance of unwilling witnesses. Santander argues
generally that potential fact witnesses live in the possible transferee districts.
Santander has not identified a list of potential witnesses and their location relative

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to Birmingham to substantiate its argument. Santander has identified no local
employee of the company who might be a witness.

Santander’s corporate

representative and corporate fact witness can travel to Birmingham just as easily as
they can travel to Montgomery or Mobile.

Santander also has not identified

specific witnesses who are unwilling or unavailable to testify. Therefore, these
two factors do not outweigh the plaintiffs’ choice of forum. See Molex Co., LLC v.
Andress, 887 F. Supp. 2d 1189, 1208 (N.D. Ala. 2012) (“Defendant does not
identify any of these alleged witnesses, state where they reside, state how many
witnesses will be unavailable, or explain any witness’s unwillingness or
unavailability to testify. Without more information, the court cannot conclude that
the overall convenience of the witnesses weighs so much in favor of litigating in
Texas as to override the plaintiffs’ choice of an Alabama forum.”).
The other § 1404 factors are either neutral or weigh against a transfer. The
physical location of documents carries less weight in the transfer analysis than the
other convenience and fairness factors, and the Court finds this factor neutral with
respect to transfer in this case. See Game Controller Tech., LLC v. Sony Computer
Entertain. Am., LLC, 994 F. Supp. 2d 1268, 1274 (S.D. Fla. 2014) (“The Court has
previously found, and repeats here, that producing documents and other files for
litigation is not usually a burdensome ordeal due to technological advancements,
such as electronic document-imaging and retrieval.”) (internal quotation marks,

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alterations, and citation omitted); Microspherix LLC v. Biocompatibles, Inc., 2012
WL 243764, at *4 (S.D. Fla. 2012) (“In a world with fax machines, copy
machines, email, overnight shipping, and mobile phones that can scan and send
documents, the physical location of documents is irrelevant.”).
Moreover, transferring the claims of the four Alabama plaintiffs from this
district to the Middle District of Alabama or the Southern District of Alabama will
not conserve judicial resources or promote the interest of justice.

Santander

already is defending identical claims in two lawsuits before the undersigned, so it
will incur no additional expense in litigating the claims of all Alabama plaintiffs
here.

It is more convenient for all parties and the judiciary to litigate these

substantially similar actions in one court. The four plaintiffs’ choice of forum,
while entitled to only minimal deference because the plaintiffs did not choose their
home forum, see Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-56 (1981),
nonetheless weighs in the plaintiffs’ favor, particularly given the remedial nature
of the statutory claim that they assert and the efficiency that they seek by joining
their statutory claims with the claims of other TCPA plaintiffs.
IV.

Conclusion
For the reasons discussed above, the Court denies Santander’s motion to

dismiss the claims of the Tennessee plaintiffs and Santander’s motion to dismiss

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and alternative motion to transfer the claims of the out-of-district Alabama
plaintiffs. (See Doc. 41).
On or before June 17, 2016, the parties shall confer and file a Rule 26(f)
report that addresses the claims of all plaintiffs.16
Plaintiff Clifton Whearlee may respond to Santander’s pending motion for
summary judgment on or before June 17, 2016. Santander may file a reply on or
before July 1, 2016.
DONE and ORDERED this June 3, 2016.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

16

Previously, the parties filed a Rule 26(f) report related to the claims of plaintiff Clifton
Whearlee only. (See Doc. 18).

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