Hung V. Vu, D.D.S., A Professional Dental Corp. v. i Care Credit, LLC

Filing 29

ORDER GRANTING MOTION TO TRANSFER VENUE TO UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA AND VACATING HEARING [re 17 MOTION to Dismiss CORRECTION OF DOCKET # 16 filed by i Care Credit, LLC]. Signed by Judge William Alsup on 6/22/2017. (whasec, COURT STAFF) (Filed on 6/22/2017)

1
2
3
4
5

IN THE UNITED STATES DISTRICT COURT

6
FOR THE NORTHERN DISTRICT OF CALIFORNIA
7
8
9

11
For the Northern District of California

United States District Court

10

HUNG V. VU, D.D.S., a professional
dental corporation, d/b/a VU
ORTHODONTICS, individually and
on behalf of all others similarly situated,
Plaintiff,

12
13
14
15
16
17
18

No. C 17-00790 WHA

ORDER GRANTING MOTION
TO TRANSFER VENUE TO
UNITED STATES DISTRICT
COURT FOR THE CENTRAL
DISTRICT OF CALIFORNIA
AND VACATING HEARING

v.
I CREDIT, LLC, d/b/a iCARE
FINANCIAL,
Defendant.
/

INTRODUCTION
In this action for violation of the Telephone Consumer Protection Act, defendant moves

19

to dismiss or, in the alternative, transfer to a proper venue. For the reasons stated herein, the

20

motion to transfer venue is GRANTED. Oral argument on this matter will be of marginal

21

assistance. The hearing scheduled for June 29, 2017, is therefore VACATED.

22
23

STATEMENT
Defendant I Care Credit, LLC, a Georgia company, directed advertisements through fax

24

to plaintiff Hung Vu, who resides in the Central District of California. Plaintiff contends that

25

defendant’s faxes violated the TCPA, which prohibits unsolicited advertisements through fax.

26

On February 16, 2017, plaintiff commenced this putative class action against defendant for

27

(1) injunctive relief for violation of TCPA and (2) conversion. Defendant now moves to

28

dismiss for improper venue or, in the alternative, transfer to a proper venue. Plaintiff opposes.

1

ANALYSIS

2

1.

IMPROPER VENUE.

3

A defendant may move to dismiss a claim for improper venue under FRCP 12(b)(3).

4

Under Section 1391(b) of Title 28, venue is proper in “(1) a judicial district in which any

5

defendant resides, if all defendants are residents of the State in which the district is located;

6

(2) a judicial district in which a substantial part of the events or omissions giving rise to the

7

claim occurred, or a substantial part of property that is the subject of the action is situated; or

8

(3) if there is no district in which an action may otherwise be brought as provided in this

9

section, any judicial district in which any defendant is subject to the court’s personal

11
For the Northern District of California

United States District Court

10

12
13

jurisdiction with respect to such action.”
First, defendant does not reside in this state, so this claim does not meet the first prong
to establish proper venue.
Second, substantial events giving rise to this claim did not occur in this district, so this

14

claim does not meet the second prong. Plaintiff contends that substantial events occurred in this

15

district because defendant directed faxes to unnamed class members residing in this district.

16

This contention improperly assumes that unnamed parties suffice to meet the venue

17

requirements in a class action. The undersigned judge has previously noted that in class

18

actions, the named plaintiff must satisfy venue provisions. Briggs v. United States, No. C 07-

19

05760 WHA, 2009 WL 113387, at *5 (N.D. Cal. Jan. 16, 2009) (“[C]ourts generally hold that

20

the named plaintiffs must satisfy the applicable venue requirements . . . .”). Plaintiff has not

21

met this requirement.

22

Plaintiff requests judicial notice of seven complaints stating claims against defendant for

23

sending unsolicited faxes (Dkt. No. 20, Exh. 3–9). These exhibits do not establish that

24

substantial events occurred between plaintiff and defendant in this district. Judicial notice of

25

these exhibits is DENIED AS MOOT.

26

Plaintiff also requests judicial notice of three webpages showing businesses from this

27

district providing positive reviews for defendant or advertising defendant’s services (Dkt.

28

No. 20, Exh 10–12). Plaintiff requests judicial notice of these exhibits to establish that
2

1

defendant had substantial relationships with businesses in this district. Even if these exhibits

2

were recognized, they would not establish that substantial events occurred between plaintiff and

3

defendant in this forum. Judicial notice of these exhibits is DENIED AS MOOT.

4

Third, there are other districts in which this action may be brought, including the

5

Northern District of Georgia, where defendant resides, or the Central District of California,

6

where plaintiff received faxes from defendant.

7

2.

8

“The district court of a district in which is filed a case laying venue in the wrong

9

DISMISSAL OR TRANSFER.

division or district shall dismiss, or if it be in the interest of justice, transfer such case to any
district or division in which it could have been brought.” 28 U.S.C. 1406(a). Here, defendant

11
For the Northern District of California

United States District Court

10

moves to dismiss. This order looks to see if dismissal is proper.

12

In King v. Russell, a decision cited by neither side, our court of appeals dealt with the

13

question of dismissal or transfer under Section 1406(a). Our court of appeals found it proper

14

to dismiss rather than transfer in the interest of justice when the plaintiff “expressed no interest

15

in transfer and . . . the action smacks of harassment and bad faith . . . in that it appears [the

16

plaintiff] filed it here after repeatedly losing on at least some similar claims in California.”

17

963 F.2d 1301, 1304 (9th Cir. 1992) (internal quotation marks omitted). Here, although

18

plaintiff opposes transfer, his claims do not meet the criteria in King to warrant dismissal

19

because no evidence suggests that plaintiff brings this action in bad faith or with the intention to

20

harass.

21

As for transfer, plaintiff inexplicably opposes transfer to his home forum, arguing that

22

our district is just as convenient as his own and that his choice of venue should be respected.

23

This is a non-starter because venue here is improper to begin with and we must either dismiss or

24

transfer.

25

The parties do not dispute that the Central District of California is a proper venue for

26

this action. Plaintiff gave no indication as to any preference between the Central District of

27

California and the Northern District of Georgia. In the interest of justice and to move the case

28

along, this action is transferred to the Central District of California, where plaintiff resides.
3

1

CONCLUSION

2

For the foregoing reasons, defendant’s motion to transfer venue is GRANTED. The

3

Clerk shall TRANSFER this civil action to the United States District Court for the Central

4

District of California. Plaintiff’s request for judicial notice is DENIED AS MOOT. The hearing

5

scheduled for June 29, 2017, is VACATED.

6
7

IT IS SO ORDERED.

8
9

Dated: June 22, 2017.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4