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.]

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Case 2:20-cv-02128-JCM-NJK Document 29 Filed 11/19/20 Page 1 of 10 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JUSTIN NEFF, 12 No. 2:20-cv-00261-JAM-DMC Plaintiff, 13 v. 14 TOWBIN DODGE LLC and CDK GLOBAL LLC, 15 ORDER DENYING DEFENDANTS’ MOTION TO DISMISS FOR LACK OF VENUE AND GRANTING DEFENDANTS’ MOTION FOR TRANSFER Defendants. 16 This matter is before the Court on Towbin Dodge and CDK 17 18 Global’s (“Defendants”) Motion to Dismiss and Motion to Change 19 Venue. 20 Justin Neff (“Plaintiff”) filed an opposition, ECF No. 21, to 21 which Defendants replied, ECF No. 26-27. 22 the parties’ written arguments on the motions and relevant legal 23 authority, the Court DENIES Defendants’ Motion to Dismiss and 24 GRANTS Defendants’ Motion to Transfer Venue.1 25 /// Towbin’s Mot., ECF No. 19; CDK’s Mot., ECF No. 20. After consideration of 26 27 28 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. 1 1 Case 2:20-cv-02128-JCM-NJK Document 29 Filed 11/19/20 Page 2 of 10 1 2 I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND Towbin Dodge is a Dodge car dealership in Henderson, Nevada. 3 First Amended Complaint (“FAC”) ¶¶ 7-11, ECF No. 15. CDK Global 4 provides sales and marketing services to car dealerships. 5 ¶ 12. 6 services on its behalf. 7 received three autodialed calls and one text message from 8 Defendants after they obtained his contact information from 9 FAC Plaintiff claims Towbin hired CDK to perform marketing FAC ¶¶ 24-33. See FAC ¶ 12. Plaintiff allegedly As a result, Plaintiff brought this 10 action on behalf of himself and those similarly situated, under 11 the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, 12 FAC ¶ 37, which prohibits sending unsolicited, autodialed text 13 messages and calls to cellular telephones. 14 § 227(b)(1)(A)(iii). 15 Dismiss for Improper Venue and, in the alternative, Motion to 16 Change to Venue to the District of Nevada. 17 CDK’s Mot. 1. Defendants then brought this Motion to 18 19 20 21 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 22 in which any defendant resides, if all defendants are residents 23 of the State in which the district is located; or (2) a judicial 24 district in which a substantial part of the events or omissions 25 giving rise to the claim occurred. 26 determining a 12(b)(3) motion to dismiss for improper venue, the 27 court must draw all reasonable inferences in favor of the non- 28 moving party. 28 U.S.C. § 1391(b). In Murphy v. Schneider National, Inc., 362 F.3d 2 Case 2:20-cv-02128-JCM-NJK Document 29 Filed 11/19/20 Page 3 of 10 1 1133, 1138 (9th Cir. 2004). 2 3 2. Analysis The parties agree venue is not proper in the Eastern 4 District of California under § 1391(b)(1), as neither Defendant 5 is a resident of California. 6 CDK’s Mot. 1. 7 proper in the Eastern District under § 1391(b)(2), that is, 8 whether a substantial part of the events or omissions giving 9 rise to Plaintiff’s claim occurred here. 10 11 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 12 Eastern District because Plaintiff did not clearly allege that 13 he received the communications in this district. 14 4; CDK’s Mot. 2. 15 is proper here because “Plaintiff resides in this District, and 16 because the wrongful conduct giving rise to this case was 17 directed to Plaintiff on Plaintiff’s California area code cell 18 phone number in this District.” 19 While the Court agrees that Plaintiff’s allegations are not 20 entirely clear, the Court must draw all reasonable inferences in 21 favor of the Plaintiff. 22 resides in this district and received the calls to his cell 23 phone here, suggests that he was in this district when he 24 received the alleged communications from Defendants. 25 ¶ 10. 26 received the communications in this district. 27 28 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 3 Case 2:20-cv-02128-JCM-NJK Document 29 Filed 11/19/20 Page 4 of 10 1 not support venue under § 1391(b)(2), as the receipt of the 2 communications is not a substantial part of the events giving 3 rise to his TCPA claim. 4 Defendants argue that because the TCPA only prohibits persons 5 from sending autodialed communication and does not make illegal 6 the receipt of autodialed communication, the events giving rise 7 to Plaintiff’s claim arose in Nevada, where the alleged 8 communications were sent. 9 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 10 where venue was found to be proper in the district in which the 11 communications were sent. Towbin’s Mot. 5-6; CDK’s Mot. 2. 12 However, just because a substantial part of the events 13 occurred in Nevada “does not mean that a substantial part of the 14 events did not also take place in California where the phone 15 call was directed and where the harm was inflicted.” 16 Schlesinger v. Collins, No. 19-CV-03483-EMC, 2019 WL 4674396, at 17 *3 (N.D. Cal. Sept. 25, 2019); see also S.F. Residence Club, 18 Inc. v. Leader Bulso & Nolan, PLC, No. C-13-0844 EMC, 2013 WL 19 2050884, at *5 (N.D. Cal. May 14, 2013) (noting that there may 20 be more than one district in which a substantial part of the 21 events giving rise to the claim occurred, and that venue would 22 be proper in each district). 23 consistently found venue to be proper under § 1391(b)(2) where 24 the call was received. 25 v. Resolute Bank, No. CV-19-02218-PHC-DLR, 2019 WL 8014435, at 26 *1 (D. Ariz. Nov. 13 2019); Sapan v. Dynamic Network Factory, 27 Inc., No. 13-CV-1966-MMA (WVG), 2013 WL 12094829, at *3 (S.D. 28 Cal. Nov. 25, 2013). Courts in TCPA cases have See Schlesinger, at *3; see also Schick Because Plaintiff’s injury, receipt of the 4 Case 2:20-cv-02128-JCM-NJK Document 29 Filed 11/19/20 Page 5 of 10 1 communications, occurred in the Eastern District, a substantial 2 part of the events giving rise to his claim occurred here. 3 such, venue is proper in the Eastern District of California. 4 B. 5 6 As Transfer 1. Legal Standard “For the convenience of parties and witnesses, in the 7 interest of justice, a district court may transfer any civil 8 action to any other district or division where it might have 9 been brought.” 28 U.S.C. § 1404(a). When determining whether 10 transfer is proper, courts employ a two-step analysis. 11 Dole Fresh Vegetables Inc., 964 F. Supp. 2d 1088, 1093 (N.D. 12 Cal. 2013). 13 could have been brought in the forum the moving party seeks to 14 transfer the case to. 15 Park v. First, the court must determine whether the case Id. If the moving party makes this showing then the district 16 court has discretion to change venue based on “individualized, 17 case-by-case consideration of convenience and fairness.” 18 (quoting Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 19 (1988)). 20 convenience of the parties and witnesses. 21 The court may also consider factors such as: (1) the location 22 where the relevant agreements were negotiated and executed, 23 (2) the state that is most familiar with the governing law, 24 (3) the plaintiff’s choice of forum, (4) the respective parties’ 25 contacts with the forum, (5) the contacts relating to the 26 plaintiff’s cause of action in the chosen forum, (6) the 27 differences in the costs of litigation in the two forums, 28 (7) the availability of compulsory process to compel attendance Id. Under § 1404(a) the court should consider the 5 28 U.S.C. § 1404(a). Case 2:20-cv-02128-JCM-NJK Document 29 Filed 11/19/20 Page 6 of 10 1 of unwilling non-party witnesses, and (8) the ease of access to 2 sources of proof. 3 499 (9th Cir. 2000). 4 2. 5 Jones v. GNC Franchising, Inc., 211 F.3d 495, Analysis Plaintiff does not dispute that this action could have been 6 brought in Nevada. See Opp’n 4. Towbin operates in Nevada, it 7 is where the contract between Defendants was executed, and where 8 any communications from Towbin originated. 9 Accordingly, venue is proper in the District of Nevada. Towbin’s Mot. 5. See 28 10 U.S.C. 1391(b)(2). 11 the relevant factors, the Court finds that the interests of 12 convenience and fairness warrant transfer to the District of 13 Nevada. 14 a. 15 Moreover, as set forth below, upon weighing Factors Weighing in Favor of Transfer Several factors support transferring this case to Nevada. 16 First, transfer to Nevada will be more convenient for the 17 witnesses, often considered the most important factor when 18 deciding a motion to transfer. 19 12-05526 DDP (JCGx), 2012 WL 5470057, at *4 (C.D. Cal. Nov. 8, 20 2012). 21 to be Towbin employees. 22 do not specifically identify any critical witnesses, given that 23 Plaintiff’s complaint is that he received solicitation from 24 Towbin, it seems likely that many relevant witnesses will be 25 Towbin employees based in Nevada where Towbin operates. 26 Plaintiff on the other hand, does not claim the Eastern District 27 is convenient for any other witness besides himself. 28 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 6 Case 2:20-cv-02128-JCM-NJK Document 29 Filed 11/19/20 Page 7 of 10 1 Henderson, Nevada, it is likely the district court in Nevada 2 will have subpoena power to compel testimony from any former 3 employee, while this court will not. 4 45(c)(1)(A) (“A subpoena may command a person to attend trial, 5 hearing, or deposition . . . within 100 miles of where the 6 person, resides, is employed, or regularly transacts business in 7 person.”). See Fed. R. Civ. P. 8 Second, litigation costs will likely be reduced in Nevada. 9 Defendants argue that most of the documentary evidence relevant 10 to this case is maintained at Towbin’s dealership in Henderson. 11 Towbin’s Mot. 11. 12 instead argues that the physical location of the documents no 13 longer carries much weight given technology has made it easier 14 for documents to be transferred to different locations. 15 5. 16 the cost of document transfer somewhat, costs of litigation can 17 still be substantially lessened if the venue is in the district 18 in which most of the documentary evidence is stored.” 19 F. Supp. 2d at 1095. 20 reduced when the venue is located near the most witnesses 21 expected to testify. 22 evidence and most of the witnesses are in Nevada, the Court 23 finds litigation will be less costly there. 24 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 25 cause of action. The only contacts related to the cause of 26 action in the Eastern District, are that Plaintiff is a resident 27 of this district and allegedly received the communications here. 28 See generally Compl. Given that this is a putative class 7 Case 2:20-cv-02128-JCM-NJK Document 29 Filed 11/19/20 Page 8 of 10 1 action, similar contacts might be found across the country. 2 However, all these communications will have come from Towbin, 3 located in Nevada, or from CDK, on Towbin’s behalf. 4 Mot. 5-6. 5 of the service contract with CDK occurred at its place of 6 business in Nevada. Further, Towbin’s marketing decisions and execution 7 8 9 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 10 forum of plaintiff’s choosing. 11 739 (9th Cir. 1987). 12 class, the named plaintiff’s choice of forum is given less 13 weight. 14 Lou v. Belzberg, 834 F.2d 730, However, when an individual represents a Id. Here, Plaintiff has chosen to litigate in his home 15 district, the Eastern District of California, which weighs 16 against transfer. 17 Nevada would be less convenient for Plaintiff than litigating in 18 his home state. 19 to represent a class, his choice of forum, and its convenience 20 for him, is given less weight. See LaGuardia v. Designer Brands, 21 Inc., No. 19CV1568 JM(BLM), 2020 WL 2463385, at *8 (S.D. Cal. 22 May 7, 2020) (noting that TCPA class actions are normally 23 attorney driven and require limited participation from the named 24 plaintiff). 25 the country and plaintiff “provides no indication that any class 26 members other than himself would not also have to travel 27 hundreds of miles to litigate” in the Eastern District. 28 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 8 Mina v. Case 2:20-cv-02128-JCM-NJK Document 29 Filed 11/19/20 Page 9 of 10 1 2 *3 (C.D. Cal. Mar. 3, 2020). Thus, ultimately, this factor does not weigh heavily 3 against transfer. 4 c. 5 Neutral Factors Finally, a few factors neither weigh in favor of or against 6 transfer of venue. For instance, the parties both have limited 7 contacts with the other’s respective forum choice. 8 contact with the Eastern District is great, as it is where he 9 resides. See FAC ¶ 10. Plaintiff’s Plaintiff does not appear to have any 10 contacts with Nevada other than the alleged communication with 11 Defendants. 12 have greater contacts with Nevada and their only alleged 13 contacts with the Eastern District are their communications with 14 Plaintiff. 15 it is where it operates its business. 16 has contacts with Nevada as it is where it provided services to 17 its client, Towbin. 18 federal law, which both districts are equally familiar with. 19 Pierucci v. Inc., No. CV-20-08048-PCT-DWL, 2020 WL 20 5439534, at *5 (D. Az. Sept. 10, 2020). 21 22 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, 23 that transfer to the District of Nevada is more convenient to 24 the parties and witnesses in this case. 25 transfers this case to the District of Nevada under 28 U.S.C. 26 § 1404(a). 27 28 III. Thus, the Court ORDER For the reasons set forth above, the Court DENIES 9 Case 2:20-cv-02128-JCM-NJK Document 29 Filed 11/19/20 Page 10 of 10 1 Defendants’ Motion to Dismiss and GRANTS Defendants’ Motion to 2 for Transfer to the District of Nevada. 3 4 IT IS SO ORDERED. Dated: November 18, 2020 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10

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