Neff v. Towbin Dodge, LLC

Filing 29

ORDER signed by District Judge John A. Mendez on 11/18/20D DENYING Defendants' Motion to Dismiss and GRANTING Defendants' Motion to Transfer. CASE TRANSFERRED to District of Nevada. (Kaminski, H) [Transferred from California Eastern on 11/19/2020.]

Case 2:20-cv-02128-JCM-NJK Document 29 Filed 11/19/20 Page 1 of 10

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JUSTIN NEFF,

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No.

2:20-cv-00261-JAM-DMC

Plaintiff,

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v.

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TOWBIN DODGE LLC and CDK
GLOBAL LLC,

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ORDER DENYING DEFENDANTS’ MOTION
TO DISMISS FOR LACK OF VENUE AND
GRANTING DEFENDANTS’ MOTION FOR
TRANSFER

Defendants.

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This matter is before the Court on Towbin Dodge and CDK

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Global’s (“Defendants”) Motion to Dismiss and Motion to Change

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Venue.

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Justin Neff (“Plaintiff”) filed an opposition, ECF No. 21, to

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which Defendants replied, ECF No. 26-27.

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the parties’ written arguments on the motions and relevant legal

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authority, the Court DENIES Defendants’ Motion to Dismiss and

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GRANTS Defendants’ Motion to Transfer Venue.1

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///

Towbin’s Mot., ECF No. 19; CDK’s Mot., ECF No. 20.

After consideration of

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for September 29, 2020.
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Case 2:20-cv-02128-JCM-NJK Document 29 Filed 11/19/20 Page 2 of 10

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I.

FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

Towbin Dodge is a Dodge car dealership in Henderson, Nevada.

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First Amended Complaint (“FAC”) ¶¶ 7-11, ECF No. 15.

CDK Global

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provides sales and marketing services to car dealerships.

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¶ 12.

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services on its behalf.

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received three autodialed calls and one text message from

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Defendants after they obtained his contact information from

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Cars.com.

FAC

Plaintiff claims Towbin hired CDK to perform marketing

FAC ¶¶ 24-33.

See FAC ¶ 12.

Plaintiff allegedly

As a result, Plaintiff brought this

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action on behalf of himself and those similarly situated, under

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the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227,

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FAC ¶ 37, which prohibits sending unsolicited, autodialed text

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messages and calls to cellular telephones.

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§ 227(b)(1)(A)(iii).

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Dismiss for Improper Venue and, in the alternative, Motion to

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Change to Venue to the District of Nevada.

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CDK’s Mot. 1.

Defendants then brought this Motion to

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II.
A.

Id.

Towbin’s Mot. 1-2;

OPINION

Proper Venue
1.

Legal Standard

A civil action may be brought in: (1) a judicial district

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in which any defendant resides, if all defendants are residents

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of the State in which the district is located; or (2) a judicial

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district in which a substantial part of the events or omissions

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giving rise to the claim occurred.

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determining a 12(b)(3) motion to dismiss for improper venue, the

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court must draw all reasonable inferences in favor of the non-

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moving party.

28 U.S.C. § 1391(b).

In

Murphy v. Schneider National, Inc., 362 F.3d
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Case 2:20-cv-02128-JCM-NJK Document 29 Filed 11/19/20 Page 3 of 10

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1133, 1138 (9th Cir. 2004).

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2.

Analysis

The parties agree venue is not proper in the Eastern

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District of California under § 1391(b)(1), as neither Defendant

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is a resident of California.

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CDK’s Mot. 1.

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proper in the Eastern District under § 1391(b)(2), that is,

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whether a substantial part of the events or omissions giving

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rise to Plaintiff’s claim occurred here.

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See FAC ¶¶ 7-10; Towbin’s Mot. 1;

The parties do dispute, however, whether venue is

See FAC ¶ 9; Towbin’s

Mot. 4-5; CDK’s Mot. 2.
First, Defendants argue that venue is not proper in the

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Eastern District because Plaintiff did not clearly allege that

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he received the communications in this district.

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4; CDK’s Mot. 2.

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is proper here because “Plaintiff resides in this District, and

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because the wrongful conduct giving rise to this case was

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directed to Plaintiff on Plaintiff’s California area code cell

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phone number in this District.”

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While the Court agrees that Plaintiff’s allegations are not

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entirely clear, the Court must draw all reasonable inferences in

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favor of the Plaintiff.

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resides in this district and received the calls to his cell

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phone here, suggests that he was in this district when he

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received the alleged communications from Defendants.

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¶ 10.

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received the communications in this district.

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Towbin’s Mot.

In his complaint, Plaintiff states that venue

FAC ¶ 10 (emphasis added).

As such, the fact that Plaintiff

See FAC

Thus, the Court finds that Plaintiff has alleged he

Second, Defendants argue that even if Plaintiff did receive
the alleged communications in the Eastern District, that would
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Case 2:20-cv-02128-JCM-NJK Document 29 Filed 11/19/20 Page 4 of 10

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not support venue under § 1391(b)(2), as the receipt of the

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communications is not a substantial part of the events giving

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rise to his TCPA claim.

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Defendants argue that because the TCPA only prohibits persons

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from sending autodialed communication and does not make illegal

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the receipt of autodialed communication, the events giving rise

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to Plaintiff’s claim arose in Nevada, where the alleged

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communications were sent.

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argument Defendants cite to numerous cases involving TCPA claims

Towbin’s Mot. 5-6; CDK’s Mot. 2.

Towbin’s Mot. 5.

To support this

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where venue was found to be proper in the district in which the

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communications were sent.

Towbin’s Mot. 5-6; CDK’s Mot. 2.

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However, just because a substantial part of the events

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occurred in Nevada “does not mean that a substantial part of the

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events did not also take place in California where the phone

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call was directed and where the harm was inflicted.”

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Schlesinger v. Collins, No. 19-CV-03483-EMC, 2019 WL 4674396, at

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*3 (N.D. Cal. Sept. 25, 2019); see also S.F. Residence Club,

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Inc. v. Leader Bulso & Nolan, PLC, No. C-13-0844 EMC, 2013 WL

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2050884, at *5 (N.D. Cal. May 14, 2013) (noting that there may

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be more than one district in which a substantial part of the

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events giving rise to the claim occurred, and that venue would

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be proper in each district).

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consistently found venue to be proper under § 1391(b)(2) where

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the call was received.

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v. Resolute Bank, No. CV-19-02218-PHC-DLR, 2019 WL 8014435, at

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*1 (D. Ariz. Nov. 13 2019); Sapan v. Dynamic Network Factory,

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Inc., No. 13-CV-1966-MMA (WVG), 2013 WL 12094829, at *3 (S.D.

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Cal. Nov. 25, 2013).

Courts in TCPA cases have

See Schlesinger, at *3; see also Schick

Because Plaintiff’s injury, receipt of the
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communications, occurred in the Eastern District, a substantial

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part of the events giving rise to his claim occurred here.

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such, venue is proper in the Eastern District of California.

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B.

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As

Transfer
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Legal Standard

“For the convenience of parties and witnesses, in the

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interest of justice, a district court may transfer any civil

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action to any other district or division where it might have

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been brought.”

28 U.S.C. § 1404(a).

When determining whether

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transfer is proper, courts employ a two-step analysis.

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Dole Fresh Vegetables Inc., 964 F. Supp. 2d 1088, 1093 (N.D.

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Cal. 2013).

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could have been brought in the forum the moving party seeks to

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transfer the case to.

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Park v.

First, the court must determine whether the case

Id.

If the moving party makes this showing then the district

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court has discretion to change venue based on “individualized,

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case-by-case consideration of convenience and fairness.”

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(quoting Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29

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(1988)).

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convenience of the parties and witnesses.

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The court may also consider factors such as: (1) the location

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where the relevant agreements were negotiated and executed,

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(2) the state that is most familiar with the governing law,

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(3) the plaintiff’s choice of forum, (4) the respective parties’

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contacts with the forum, (5) the contacts relating to the

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plaintiff’s cause of action in the chosen forum, (6) the

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differences in the costs of litigation in the two forums,

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(7) the availability of compulsory process to compel attendance

Id.

Under § 1404(a) the court should consider the

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28 U.S.C. § 1404(a).

Case 2:20-cv-02128-JCM-NJK Document 29 Filed 11/19/20 Page 6 of 10

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of unwilling non-party witnesses, and (8) the ease of access to

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sources of proof.

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499 (9th Cir. 2000).

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2.

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Jones v. GNC Franchising, Inc., 211 F.3d 495,

Analysis

Plaintiff does not dispute that this action could have been

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brought in Nevada.

See Opp’n 4.

Towbin operates in Nevada, it

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is where the contract between Defendants was executed, and where

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any communications from Towbin originated.

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Accordingly, venue is proper in the District of Nevada.

Towbin’s Mot. 5.
See 28

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U.S.C. 1391(b)(2).

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the relevant factors, the Court finds that the interests of

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convenience and fairness warrant transfer to the District of

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Nevada.

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a.

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Moreover, as set forth below, upon weighing

Factors Weighing in Favor of Transfer

Several factors support transferring this case to Nevada.

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First, transfer to Nevada will be more convenient for the

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witnesses, often considered the most important factor when

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deciding a motion to transfer.

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12-05526 DDP (JCGx), 2012 WL 5470057, at *4 (C.D. Cal. Nov. 8,

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2012).

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to be Towbin employees.

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do not specifically identify any critical witnesses, given that

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Plaintiff’s complaint is that he received solicitation from

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Towbin, it seems likely that many relevant witnesses will be

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Towbin employees based in Nevada where Towbin operates.

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Plaintiff on the other hand, does not claim the Eastern District

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is convenient for any other witness besides himself.

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4-5.

Jovel v. i-Health, Inc., No. CV

Defendants contend that most of the witnesses are likely
See Towbin’s Mot. 10.

While Defendants

See Opp’n

Additionally, because Towbin’s business is based in
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Case 2:20-cv-02128-JCM-NJK Document 29 Filed 11/19/20 Page 7 of 10

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Henderson, Nevada, it is likely the district court in Nevada

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will have subpoena power to compel testimony from any former

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employee, while this court will not.

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45(c)(1)(A) (“A subpoena may command a person to attend trial,

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hearing, or deposition . . . within 100 miles of where the

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person, resides, is employed, or regularly transacts business in

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person.”).

See Fed. R. Civ. P.

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Second, litigation costs will likely be reduced in Nevada.

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Defendants argue that most of the documentary evidence relevant

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to this case is maintained at Towbin’s dealership in Henderson.

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Towbin’s Mot. 11.

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instead argues that the physical location of the documents no

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longer carries much weight given technology has made it easier

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for documents to be transferred to different locations.

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5.

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the cost of document transfer somewhat, costs of litigation can

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still be substantially lessened if the venue is in the district

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in which most of the documentary evidence is stored.”

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F. Supp. 2d at 1095.

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reduced when the venue is located near the most witnesses

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expected to testify.

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evidence and most of the witnesses are in Nevada, the Court

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finds litigation will be less costly there.

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Plaintiff does not appear to dispute this but

Opp’n

While, “developments in electronic conveyance have reduced

Park, 964

Further, litigation costs are usually

Id.

Because most of the documentary

Third, Nevada has the most contacts relating to Plaintiff’s

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cause of action.

The only contacts related to the cause of

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action in the Eastern District, are that Plaintiff is a resident

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of this district and allegedly received the communications here.

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See generally Compl.

Given that this is a putative class
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action, similar contacts might be found across the country.

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However, all these communications will have come from Towbin,

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located in Nevada, or from CDK, on Towbin’s behalf.

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Mot. 5-6.

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of the service contract with CDK occurred at its place of

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business in Nevada.

Further, Towbin’s marketing decisions and execution

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Towbin’s

Towbin’s Mot. 7-10.

b.

Factors Weighing Against Transfer

The one factor weighing against transfer is the plaintiff’s
choice of forum.

Great weight is generally accorded to the

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forum of plaintiff’s choosing.

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739 (9th Cir. 1987).

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class, the named plaintiff’s choice of forum is given less

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weight.

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Lou v. Belzberg, 834 F.2d 730,

However, when an individual represents a

Id.

Here, Plaintiff has chosen to litigate in his home

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district, the Eastern District of California, which weighs

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against transfer.

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Nevada would be less convenient for Plaintiff than litigating in

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his home state.

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to represent a class, his choice of forum, and its convenience

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for him, is given less weight. See LaGuardia v. Designer Brands,

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Inc., No. 19CV1568 JM(BLM), 2020 WL 2463385, at *8 (S.D. Cal.

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May 7, 2020) (noting that TCPA class actions are normally

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attorney driven and require limited participation from the named

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plaintiff).

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the country and plaintiff “provides no indication that any class

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members other than himself would not also have to travel

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hundreds of miles to litigate” in the Eastern District.

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Red Robin Int’l, Inc., No. CV189472PSGGJSX, 2020 WL 4037163, at

See FAC ¶ 10.

Opp’n 5.

Additionally, litigating in

However, because Plaintiff has chosen

Potential class plaintiffs may come from all over

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Mina v.

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*3 (C.D. Cal. Mar. 3, 2020).
Thus, ultimately, this factor does not weigh heavily

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against transfer.

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c.

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Neutral Factors

Finally, a few factors neither weigh in favor of or against

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transfer of venue.

For instance, the parties both have limited

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contacts with the other’s respective forum choice.

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contact with the Eastern District is great, as it is where he

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resides.

See FAC ¶ 10.

Plaintiff’s

Plaintiff does not appear to have any

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contacts with Nevada other than the alleged communication with

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Defendants.

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have greater contacts with Nevada and their only alleged

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contacts with the Eastern District are their communications with

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Plaintiff.

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it is where it operates its business.

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has contacts with Nevada as it is where it provided services to

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its client, Towbin.

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federal law, which both districts are equally familiar with.

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Pierucci v. Homes.com Inc., No. CV-20-08048-PCT-DWL, 2020 WL

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5439534, at *5 (D. Az. Sept. 10, 2020).

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See generally FAC.

Id.

Defendants, on the other hand,

Towbin has significant contacts with Nevada, as

d.

CDK’s Mot. 3.

See FAC ¶ 11.

CDK also

In addition, the TCPA is a

Conclusion

Weighing the relevant factors, the Court finds, on balance,

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that transfer to the District of Nevada is more convenient to

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the parties and witnesses in this case.

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transfers this case to the District of Nevada under 28 U.S.C.

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§ 1404(a).

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III.

Thus, the Court

ORDER

For the reasons set forth above, the Court DENIES
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Case 2:20-cv-02128-JCM-NJK Document 29 Filed 11/19/20 Page 10 of 10

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Defendants’ Motion to Dismiss and GRANTS Defendants’ Motion to

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for Transfer to the District of Nevada.

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IT IS SO ORDERED.
Dated: November 18, 2020

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