Kempton v. Life for Relief and Development Incorporated

• Court: District Court, D. Arizona
• Decided: October 15, 2019
• Docket: 2:19-cv-02156
• Status: Unknown

Opinion

1 WO 2 NOT FOR PUBLICATION 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Ty Kempton, No. CV-19-02156-PHX-DJH

10 Plaintiff, ORDER

11 v.

12 Life for Relief and Development Incorporated, 13 Defendant. 14 15 Pending before the Court is Defendant’s Motion to Dismiss, Transfer, or Stay 16 (Doc. 16). Plaintiff filed a Response (Doc. 18), and Defendant filed a Reply (Doc. 23). 17 I. BACKGROUND 18 From late 2017 to August 2019, Plaintiff Ty Kempton allegedly received eight 19 unsolicited text messages from Defendant Life for Relief and Development1 (“Life for 20 Relief”). (Doc. 1 ¶¶ 14-15). For example, Plaintiff alleges that on June 16, 2018, he 21 received an unsolicited text message from Life for Relief stating, “Eid Mubarak2 to you 22 and your family from Life for Relief and Development. Please visit us at lifeusa.org. 23 http://www.lifeusa.org/worldcup Reply stop to stop.” (Id. ¶ 16) (internal quotation and 24 alteration omitted)). Plaintiff claims that these eight text messages violated the Telephone 25 1 Life for Relief is a global humanitarian not-for profit organization that is operated and 26 controlled by Americans citizens and headquartered in Southfield, Michigan.

27 2 Eid Mubarak is a traditional Muslim greeting reserved for the holy festivals of Eid al-Fitr and Eid al-Adha and means “Holiday Blessings.” Totten v. Caldwell, 2012 WL 3965045, 28 at *5 (E.D. Mich. July 31, 2012), report and recommendation adopted, 2012 WL 3964989 (E.D. Mich. Sept. 11, 2012). 1 Consumer Protection Act’s (“TCPA”) restriction against using an automatic telephone 2 dialing system (“ATDS”) to send text messages to cellular telephone numbers without the 3 cellular telephone subscribers’ consent. Plaintiff claims the texts harmed him by 4 “disturbing [his] use and enjoyment of his phone, in addition to the wear and tear on the 5 phones’ hardware (including the phones’ battery) and the consumption of memory on the 6 phone.” (Id. ¶ 20). 7 Plaintiff initially filed this suit in United States District Court for the Eastern District 8 of Michigan on October 31, 2018 (“Michigan Case”). Class Action Complaint, Kempton 9 v. Life for Relief and Development, No. 3:18-cv-13404 (E.D. Mich. Oct. 31, 2018), ECF 10 No. 1. Plaintiff then filed an Amended Complaint in the Michigan Case on February 1, 11 2019. Amended Class Action Complaint, Kempton, No. 3:18-cv-13404 (E.D. Mich. Feb. 12 1, 2019), ECF No. 9. Life for Relief subsequently filed a Motion to Dismiss, arguing that 13 Plaintiff failed to plead facts to state a claim for relief because, in the Eastern District of 14 Michigan, a plaintiff must provide evidence of something more than just the use of an 15 automated testing system to prove that the defendant used an ATDS in violation of the 16 TCPA. See Motion to Dismiss, or in the Alternative, Stay, and to Strike Pleadings, 17 Kempton, No. 3:18-cv-13404 (E.D. Mich. Feb. 19, 2019), ECF No. 10. Instead of 18 responding to Life for Relief’s Motion to Dismiss, Plaintiff voluntarily dismissed his case 19 on March 14, 2019.3 Notice of Voluntary Dismissal, Kempton, No. 3:18-cv-13404 (E.D. 20 Mich. March 14, 2019), ECF No. 14. 21 On April 2, 2019, Plaintiff filed his Complaint here, which substantively is almost 22 identical to his Amended Complaint in the Michigan Case. (Doc. 1). As with the Michigan 23 Case, this action is a putative class action that stems from Life for Relief’s alleged 24 violations of the TCPA. On July 1, 2019, Life for Relief filed the pending Motion to 25 Dismiss, Transfer, or Stay. (Doc. 16). Plaintiff filed a Response (Doc. 18) and Life for 26 Relief filed a Reply (Doc. 23).

27 3 Plaintiff even sought additional time to respond to Life for Relief’s Motion to Dismiss, which the court granted. Plaintiff’s response was therefore due on March 14, 2019. 28 However, instead of responding to Life for Relief’s Motion, Plaintiff filed his Voluntary Dismissal on that day. 1 II. DISCUSSION 2 Under 28 U.S.C. § 1404(a), “[f]or the convenience of parties and witnesses, in the 3 interest of justice, a district court may transfer any civil action to any other district or 4 division where it might have been brought.” 28 U.S.C. § 1404(a). A district court has 5 discretion “to adjudicate motions for transfer according to an ‘individualized, case-by case 6 consideration of convenience and fairness.’” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 7 22, 29 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)). In making this 8 determination, a court must balance numerous factors, including: (1) the plaintiff’s choice 9 of forum; (2) the forum that is most familiar with the governing law; (3) convenience of 10 the parties; (4) convenience of the witnesses; (5) the differences in the costs of litigation in 11 the two forums; and (6) the ease of access to the evidence. This list is non-exclusive, and 12 courts may consider other factors, or only those factors which are pertinent to the case at 13 hand. See Williams v. Bowman, 157 F. Supp. 2d 1103, 1106 (N.D. Cal. 2001) (noting that 14 this list of factors “does not exhaust the possibilities” and comparing the factors in Decker 15 Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir.1986), with those 16 analyzed in Jones v. GNC Franchising, Inc., 211 F.3d 495, 498–99 (9th Cir. 2000)). 17 When weighing these factors, a court must be cognizant of the “strong presumption 18 in favor of plaintiff’s choice of forums” and should not grant transfers freely. Gherebi v. 19 Bush, 352 F.3d 1278, 1303 (9th Cir. 2003) (citation omitted), vacated on other grounds, 20 542 U.S. 952 (2004); see also Decker Coal, 805 F.2d at 843 (“The defendant must make a 21 strong showing of inconvenience to warrant upsetting the plaintiff’s choice of forum.”). 22 Transfer is not appropriate if the result is merely to shift the inconvenience from one party 23 to another. Gherebi, 352 F.3d at 1303 (“Section 1404(a) provides for transfer to a more 24 convenient forum, ‘not to a forum likely to prove equally convenient or inconvenient.’”) 25 (quoting Van Dusen, 376 U.S. at 645-46)). Thus, “unless the balance is strongly in favor 26 of the defendant, the plaintiff’s choice of forum should rarely be disturbed.” Gulf Oil Corp. 27 v. Gilbert, 330 U.S. 501, 508 (1947). 28 1. Plaintiff’s Choice of Forum 1 Plaintiff’s choice of forum alone is not controlling in this matter. Norwood v. 2 Kirkpatrick, 349 U.S. 29, 32 (1955) (finding that section 1404(a) accords broad discretion 3 to district courts, and plaintiffs’ choice of forum is only one relevant factor for their 4 consideration). Though generally, a plaintiff’s choice of forum receives deference in a 5 motion to transfer venue, in class actions, a plaintiff’s choice of forum is often accorded 6 less weight. Lou v. Belzberg, 834 F.2d 730, 739 (9th Cir. 1987) (“Although great weight 7 is generally accorded plaintiff’s choice of forum . . . when an individual . . . represents a 8 class, the named plaintiff’s choice of forum is given less weight.”). In part, the reduced 9 weight on plaintiff’s choice of forum in class actions serves as a guard against the dangers 10 of forum shopping. See Roling v. E*Trade Sec., LLC, 756 F.Supp.2d 1179, 1185–86 (N.D. 11 Cal. 2010); Foster v. Nationwide Mut. Ins. Co., 2007 WL 4410408 at *2 (N.D. Cal. Dec. 12 14, 2007) (“Where forum-shopping is evident . . . courts should disregard plaintiff’s choice 13 of forum.”). Similarly, a plaintiff’s choice of forum is entitled to minimal deference if the 14 plaintiff chose the forum to escape an unfavorable ruling in a different district. See 15 Wireless Consumers Alliance, Inc. v. T–Mobile USA, Inc., 2003 WL 22387598, at *6 (N.D. 16 Cal. Oct. 14, 2003) (“Dismissal, followed by the reinstitution of a case to avoid a particular 17 judge or precedent, is exactly the kind of forum shopping anticipated and expressly 18 prohibited by local rules of many districts.”). 19 Life for Relief asserts that the deference usually given to Plaintiff’s choice of forum 20 should be given little to no weight because this is a putative class action and because there 21 are indications of forum shopping by Plaintiff. The Court agrees. Plaintiff’s strategic 22 maneuvering raises the inference of forum shopping. Plaintiff initially filed this case in 23 the Eastern District of Michigan and litigated the matter there for approximately four 24 months before voluntarily dismissing the case when face with Life for Relief’s Motion to 25 Dismiss. Then, less than three weeks later, Plaintiff initiated this action by filing a nearly 26 identical Complaint to the Michigan Case’s Amended Complaint. Plaintiff argues that 27 there was nothing nefarious about his choice to dismiss the Michigan Case and refile his 28 case here; rather it was a choice out of convenience because he is an Arizona resident. 1 (Doc. 18 at 7-8). However, the facts show that Plaintiff choose to litigate this suit in Eastern 2 District of Michigan until he was presented with a Motion to Dismiss that pointed out the 3 district’s precedent on TCPA actions and the deficiencies in his Amended Complaint. At 4 that point, he voluntarily dismissed his Complaint, only to refile in a jurisdiction that does 5 not have the same TCPA precedent. See Martin v. Glob. Tel*Link Corp., 2015 WL 6 2124379, at *4 (N.D. Cal. May 6, 2015) (“Even though the plaintiff resides in this District, 7 his initial selection of the Southern District undercuts his argument that he considers the 8 Northern District a more convenient forum—and suggests his interest in maintaining the 9 lawsuit here may instead be due to strategic considerations.”) 10 Not only is the instant action a putative class action, but notably, Plaintiff did not 11 initially choose this forum, despite residing here. To the contrary, Plaintiff instituted this 12 action in the Eastern District of Michigan, and only chose this district as a fallback option. 13 Given Plaintiff’s strategic procedural maneuvering and because this case involves class 14 action litigation, the Court will accord no deference to Plaintiff’s choice of forum. 15 2. Forum Most Familiar with Governing Law 16 Neither party puts forth arguments as to whether Arizona or Michigan is more 17 familiar with the governing law. However, the Court notes that the TCPA is a federal 18 statute. Both this district and the Eastern District of Michigan are equally familiar with the 19 law. Accordingly, neither venue is more convenient on this basis and this factor is therefore 20 neutral. 21 3. Convenience of the Parties 22 “Convenience of the parties is an important factor to consider for transfer of venue.” 23 Flint v. UGS Corp., 2007 WL 4365481, at *3 (N.D. Cal. Dec. 12, 2007). Even though 24 Plaintiff resides in Arizona, his initial selection of the Eastern District of Michigan 25 undercuts his argument that he considers Arizona a more convenient forum, and suggests 26 his interest in maintaining the lawsuit here may instead be due to strategic considerations. 27 The Eastern District of Michigan will be a more convenient forum for Life for Relief, 28 because it is headquartered there. Thus, this factor favors transfer. 1 4. Convenience of the Witnesses 2 The convenience of non-party witnesses is the most important convenience factor; 3 more important that the convenience of party witnesses. See, e.g., Kaur v. U.S. Airways, 4 Inc., 2013 WL 1891391, *5 (N.D. Cal. May 6, 2013). However, convenience of a litigant’s 5 employee witnesses is entitled to little weight because they can be compelled by their 6 employers to testify regardless of venue. Shore to Shore Props., LLC v. Allied World 7 Assurance, 2011 WL 4344177, at *3 (N.D. Cal. Sept. 15, 2011). Here, neither Life for 8 Relief or Plaintiff have not identified any third-party witnesses who are likely to testify. 9 Therefore, this factor is neutral. 10 5. Differences in the Cost of Litigation 11 Litigation costs weigh in favor of transfer to the Eastern District of Magician, with 12 regard to both documentary and testamentary evidence. The crux of Plaintiff’s allegations 13 is that Life for Relief used an ATDS to send him text messages without his consent. 14 Therefore, the majority of documentary evidence will likely be documents pertaining to 15 Life for Relief’s business practices and procedures, which are most likely to be found at 16 their Michigan headquarters. Plaintiff, on the other hand, can be expected to contribute 17 comparatively little documentary evidence to this action. Although developments in 18 electronic conveyance have reduced the cost of document transfer somewhat, the cost of 19 litigation will be substantially lessened if the action is venued in the same district where 20 most of the documentary evidence is found. A reduction in document sharing and litigation 21 costs serves both parties as well as the public interest. Accordingly, this factor weighs in 22 favor of transfer. 23 6. Ease of Access to the Evidence 24 As with the previous factor, the majority of evidence and witnesses will likely be in 25 the Eastern District of Magician. Accordingly, this factor weighs in favor of transfer. 26 III. CONCLUSION 27 Having considered the relevant factors, the Court finds Life for Relief has made the 28 “strong showing” required for transfer under Section 1404(a). Decker Coal, 805 F.2d at 1|| 843. Thus, the Court will grant Life for Relief’s request to transfer. Transferring this action to the Eastern District of Michigan likely moots Life for Relief’s request to dismiss || for lack of personal jurisdiction. However, the Court will not address the merits of Life for 4|| Relief’s request to stay this action and will instead leave that to the discretion of the Eastern 5 || District of Michigan. 6 Accordingly, 7 IT IS ORDERED that Defendant’s Motion to Dismiss, Transfer, or Stay (Doc. 16) 8 || is GRANTED in part and DENIED in part. The Court grants Defendant’s request to 9|| transfer this action to the Eastern District of Michigan, declines to rule on the merits of 10 || Defendant’s request to stay this action, and denies Defendant’s request to dismiss as moot. 11 IT IS FURTHER ORDERED directing the Clerk of Court to take all necessary 12 || steps to ensure the prompt transfer of this action to the United States District Court for the 13 || Eastern District of Michigan. 14 Dated this 15th day of October, 2019. 15 16 ( . fo — SZ V7 norable'Diang/. Huretewa 18 United States District Fudge 19 20 21 22 23 24 25 26 27 28

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