FITZHENRY v. GUARDIAN PROTECTION SERVICES, INC. et al

Filing 32

ORDER-MEMORANDUM: the Clerk of Court shall forthwith transfer venue to the Clerk of the District of South Carolina, Charleston Division. Signed by Judge Mark A. Kearney on 11/9/2016. (kly)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MARK FITZHENRY, individually and
on behalf of a class of all persons and
entities similarly situated

v.

CIVIL ACTION

NO. 16-1253

GUARDIAN PROTECTION
SERVICES, INC., et al.

ORDER-MEMORANDUM
AND NOW, this 9th day of November 2016, upon consideration of the parties' responses
(ECF Doc. Nos. 29, 30, 31) to our Order to show cause (ECF Doc. No. 25,

~

2) as to appropriate

venue under 28 U.S.C. §§ 1404 and 14061 for this TCPA2 class action claim filed by a South
Carolinian challenging an August 12, 2016 telephone call made by a North Carolina telemarketing
company but filed here because the Defendant retailer who denies vicarious liability for a North
Carolina telemarketing company is headquartered in this District and finding the events giving rise
to our subject matter jurisdiction under the TCPA (both the call and lack of consent) occurred in
South Carolina, it is ORDERED the Clerk of Court shall forthwith transfer venue to the Clerk of
the District of South Carolina, Charleston Division, as it is the only District under 28 U.S.C. §
1406 where we can find a substantial part of the events or omissions giving rise to federal
jurisdiction occurred.
1

Mr. Fitzhenry elected not to address transfer or dismissal under 28 U.S.C. § 1406 due to lack of
proper venue under 28 U.S.C. §1391. Security Force, Inc. argues venue is proper only because its
co-defendant Guardian Protection Services, Inc. resides here. Security Force omits the
requirement for all defendants to be residents of the Commonwealth under §139l(b)(l) and did not
argue its residency under §1391 (c)(2).
2

Telephone Consumer Protection Act, 42 U.S.C. § 227.

Analysis
Pennsylvania resident Guardian argues an agreement (which it denies) between Guardian
and telemarketer Superior Force can be a "substantial part of the events or omissions giving rise to
the [TCPA] claim" permitting venue under 28 U.S.C. § 1391(b). The TCPA claim invoking
subject matter jurisdiction arises from the nonconsensual call to a Charleston resident. Mr.
Fitzhenry's claim continues against the Security Force telemarketer regardless of the venue of the
retailer hiring it. The Pennsylvania retailer would have a stronger argument if Mr. Fitzhenry sued
only it on a theory of vicarious liability. Charleston in South Carolina, the venue for both the call
and lack of consent, is the appropriate venue.
While the class representative could arguably be from any state and we would consider,
among other factors, the preference of the parties and location of the witnesses and documents
under 28 U.S.C. §1404 andlumara v. State Farm Ins. Co., 55 F.3d 873 (3d Cir. 1995), we find the
only appropriate venue where the case creating federal jurisdiction could have been brought is
South Carolina and transfer, rather than dismissal, is warranted under 28 U.S.C. §1406.

A.

Under the TCPA, venue is proper where the phone call is received.
The proper venue for this action is the District of South Carolina where Mr. Fitzhenry

received the alleged phone call and did not provide consent. District courts find proper venue
where the alleged injury occurred which, in a TCPA action, is where the telephone call was
received. 3 These courts often cite reasoning used in debt collection cases. 4 In those cases, courts

3

See Sapan v. Dynamic Network Factory, Inc., No. 13-1966, 2013 WL 12094829, at *3 (S.D. Cal.
Nov. 25, 2013) ("venue is proper in the district where [plaintiff] resides because the injury did not
occur when the phone call was allegedly made from the Northern District; it occurred when the
[phone call] was received in the Southern District."); Brown v. Account Control Tech., Inc., No.
13-62765, 2014 WL 11706429, at *3 (S.D. Fla. Mar. 28, 2014) (finding venue proper where the

2

find venue proper in the district where the debtor resides because the injury did not occur until the
mail was received. 5

B.

Neither signing an agreement in Pennsylvania nor vicarious liability give rise to
proper venue.
For venue to be proper, significant events must occur in this District, even if other material

events occurred elsewhere. 6 "When material acts or omissions within the forum bear a close nexus
to the claims, they are properly deemed 'significant' and, thus, substantial, but when a close nexus
is lacking, so too, is the substantiality necessary to support venue."7
Acknowledging there might be more than one district that meets the requirements of §
1391, 8 vicarious liability is not sufficient grounds to find venue proper unless the connection gave
rise to the underlying action. We are aware of the court's decision in Gregory L. Jones v. Blue Nile

plaintiff received the telephone call); Lary v. Doctors Answer, LLC, No. 12-3510, 2013 WL
987879, at *5 (N.D. Ala. Mar. 8, 2013) ("venue is proper in the district where [plaintiffJ resides
because the injury did not occur" when the facsimile was sent from New Jersey; it occurred when
''the [facsimile] was received'' in Alabama.)
4

Meredith v. Unifund CCR Partners, No. 2:08-375, 2008 WL 4767523 (M.D.Ala. Oct.29, 2008),
(citing Bates v. C & S Adjusters, Inc., 980 F.2d 865, 868 (2d Cir.1992)); Bailey v. Clegg, Brush &
Assocs., Inc., No. 1:90-2702, 1991WL143461 at *2 (N.D.Ga. June 14, 1991); Murphy v. Allen
County Claims & Adjustments, 550 F.Supp. 128, 130-31 (S.D.Ohio 1982); Gachette v. Tri-City
Adjustment Bureau, 519 F.Supp. 311, 313-14 (N.D.Ga.1981).
5

Meredith, 2008 WL 4767523, at *3 (in a debt collection case, "venue is proper in the district
where the debtor resides because the injury did not occur until the mail was received."); Bates, 980
F.2d at 868 ("[The] harm does not occur until receipt of the collection notice. Indeed, if the notice
were lost in the mail, it is unlikely that a violation of the Act would have occurred").
6

Leone v. Cataldo, 574 F. Supp. 2d 471, 484 (E.D. Pa. 2008) (emphasis added).

7

Id.(quoting Daniel v. Am. Bd. of Emergency Med., 428 F.3d 408, 432 (2d Cir.2005)).

8

See Sapan, at *3.

3

Express 9 examining the "close nexus" requirement in vicarious liability cases is only met if the
principal explicitly instructs the agent to commit the underlying alleged action. In Jones, the
employer denied he instructed his employee to act negligently. The district court held an
employment relationship alone does not fulfill the "close nexus" requirement. The court also held,
"[m ]erely signing a contract cannot give rise to venue unless the cause of action somehow relates
to that contract." We agree.
Guardian argues venue is proper in this District because the August 12, 2016 phone call
which gives rise to this action would not have occurred but for the alleged Pennsylvania
agreement. 10 We disagree with Guardian's reliance on Reassure Am. Life Ins. Co. v. Midwest Res.,

Ltd., 11 to support its argument. In Reassure, venue was proper where the parties formed the
contract because the primary issue was the "subjective intent when he obtained the life insurance
policy."
Mr. Fitzhenry only alleges an agreement between Guardian and Security Force and when
Mr. Fitzhenry was able to connect to a live person, they attempted to sell him an alarm system
monitored by Guardian. 12 Mr. Fitzhenry does not allege Guardian explicitly instructed Security
Force to make the telemarketing call. 13

9

10
11

12

No. 14-191, 2014 WL 2957452 (W.D. Wis. July 1, 2014).
E cF Doc. No. 30.
721 F. Supp. 2d 346, 350 (E.D. Pa. 2010).
EFc Doc. No. 1. at 111113, 32-33.

13

Mr. Fitzhenry alleges "Guardian authorized dealers promotes these systems through a variety of
marketing methods, including telemarketing. Guardian provides its authorized dealers with sales
techniques and training, which were implemented in the telemarketing calls that are the subject of
this complaint." (ECF Doc. No. 1 at 1111 50-51). These bald allegations do not give rise to proper

4

As in Blue Nile Express, Guardian denies it directed Superior's conduct through a denied
agreement to make telemarketing calls. 14 Because Guardian is the only link to this District, and it
denies an agreement to make telemarketing calls existed, we transfer this matter to the District
with proper venue, the District of South Carolina, Charleston Division.

venue.
14

ECF Doc. No. 30. ("Guardian denies that it authorized Security Force to make any telemarketing
calls, let alone the call described in the Complaint, and has provided Plaintiffs counsel with an
Affidavit from Guardian's President that Security Force did not make any such calls on its
behalf.").

5