Neff v. Towbin Dodge, LLC

Opinion

JUSTIN NEFF, No. 2:20-cv-00261-JAM-DMC Plaintiff, v. ORDER DENYING DEFENDANTS’ MOTION TO DISMISS FOR LACK OF VENUE AND TOWBIN DODGE LLC and CDK GRANTING DEFENDANTS’ MOTION FOR GLOBAL LLC, TRANSFER Defendants. This matter is before the Court on Towbin Dodge and CDK Global’s (“Defendants”) Motion to Dismiss and Motion to Change Venue. Towbin’s Mot., ECF No. 19; CDK’s Mot., ECF No. 20. Justin Neff (“Plaintiff”) filed an opposition, ECF No. 21, to which Defendants replied, ECF No. 26-27. After consideration of the parties’ written arguments on the motions and relevant legal authority, the Court DENIES Defendants’ Motion to Dismiss and GRANTS Defendants’ Motion to Transfer Venue.1 ///

1 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. Towbin Dodge is a Dodge car dealership in Henderson, Nevada. First Amended Complaint (“FAC”) ¶¶ 7-11, ECF No. 15. CDK Global provides sales and marketing services to car dealerships. FAC ¶ 12. Plaintiff claims Towbin hired CDK to perform marketing services on its behalf. See FAC ¶ 12. Plaintiff allegedly received three autodialed calls and one text message from Defendants after they obtained his contact information from Cars.com. FAC ¶¶ 24-33. As a result, Plaintiff brought this action on behalf of himself and those similarly situated, under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, FAC ¶ 37, which prohibits sending unsolicited, autodialed text messages and calls to cellular telephones. Id. § 227(b)(1)(A)(iii). Defendants then brought this Motion to Dismiss for Improper Venue and, in the alternative, Motion to Change to Venue to the District of Nevada. Towbin’s Mot. 1-2; CDK’s Mot. 1. A. Proper Venue 1. Legal Standard A civil action may be brought in: (1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; or (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred. 28 U.S.C. § 1391(b). In determining a 12(b)(3) motion to dismiss for improper venue, the court must draw all reasonable inferences in favor of the non- moving party. Murphy v. Schneider National, Inc., 362 F.3d 1133, 1138 (9th Cir. 2004). 2. Analysis The parties agree venue is not proper in the Eastern District of California under § 1391(b)(1), as neither Defendant is a resident of California. See FAC ¶¶ 7-10; Towbin’s Mot. 1; CDK’s Mot. 1. The parties do dispute, however, whether venue is proper in the Eastern District under § 1391(b)(2), that is, whether a substantial part of the events or omissions giving rise to Plaintiff’s claim occurred here. See FAC ¶ 9; Towbin’s Mot. 4-5; CDK’s Mot. 2. First, Defendants argue that venue is not proper in the Eastern District because Plaintiff did not clearly allege that he received the communications in this district. Towbin’s Mot. 4; CDK’s Mot. 2. In his complaint, Plaintiff states that venue is proper here because “Plaintiff resides in this District, and because the wrongful conduct giving rise to this case was directed to Plaintiff on Plaintiff’s California area code cell phone number in this District.” FAC ¶ 10 (emphasis added). While the Court agrees that Plaintiff’s allegations are not entirely clear, the Court must draw all reasonable inferences in favor of the Plaintiff. As such, the fact that Plaintiff resides in this district and received the calls to his cell phone here, suggests that he was in this district when he received the alleged communications from Defendants. See FAC ¶ 10. Thus, the Court finds that Plaintiff has alleged he received the communications in this district. Second, Defendants argue that even if Plaintiff did receive the alleged communications in the Eastern District, that would not support venue under § 1391(b)(2), as the receipt of the communications is not a substantial part of the events giving rise to his TCPA claim. Towbin’s Mot. 5-6; CDK’s Mot. 2. Defendants argue that because the TCPA only prohibits persons from sending autodialed communication and does not make illegal the receipt of autodialed communication, the events giving rise to Plaintiff’s claim arose in Nevada, where the alleged communications were sent. Towbin’s Mot. 5. To support this argument Defendants cite to numerous cases involving TCPA claims where venue was found to be proper in the district in which the communications were sent. Towbin’s Mot. 5-6; CDK’s Mot. 2. However, just because a substantial part of the events occurred in Nevada “does not mean that a substantial part of the events did not also take place in California where the phone call was directed and where the harm was inflicted.” Schlesinger v. Collins, No. 19-CV-03483-EMC, 2019 WL 4674396, at *3 (N.D. Cal. Sept. 25, 2019); see also S.F. Residence Club, Inc. v. Leader Bulso & Nolan, PLC, No. C-13-0844 EMC, 2013 WL 2050884, at *5 (N.D. Cal. May 14, 2013) (noting that there may be more than one district in which a substantial part of the events giving rise to the claim occurred, and that venue would be proper in each district). Courts in TCPA cases have consistently found venue to be proper under § 1391(b)(2) where the call was received. See Schlesinger, at *3; see also Schick v. Resolute Bank, No. CV-19-02218-PHC-DLR, 2019 WL 8014435, at *1 (D. Ariz. Nov. 13 2019); Sapan v. Dynamic Network Factory, Inc., No. 13-CV-1966-MMA (WVG), 2013 WL 12094829, at *3 (S.D. Cal. Nov. 25, 2013). Because Plaintiff’s injury, receipt of the communications, occurred in the Eastern District, a substantial part of the events giving rise to his claim occurred here. As such, venue is proper in the Eastern District of California. B. Transfer 1. Legal Standard “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” 28 U.S.C. § 1404(a). When determining whether transfer is proper, courts employ a two-step analysis. Park v. Dole Fresh Vegetables Inc., 964 F. Supp. 2d 1088, 1093 (N.D. Cal. 2013). First, the court must determine whether the case could have been brought in the forum the moving party seeks to transfer the case to. Id. If the moving party makes this showing then the district court has discretion to change venue based on “individualized, case-by-case consideration of convenience and fairness.” Id. (quoting Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988)). Under § 1404(a) the court should consider the convenience of the parties and witnesses. 28 U.S.C. § 1404(a). The court may also consider factors such as: (1) the location where the relevant agreements were negotiated and executed, (2) the state that is most familiar with the governing law, (3) the plaintiff’s choice of forum, (4) the respective parties’ contacts with the forum, (5) the contacts relating to the plaintiff’s cause of action in the chosen forum, (6) the differences in the costs of litigation in the two forums, (7) the availability of compulsory process to compel attendance of unwilling non-party witnesses, and (8) the ease of access to sources of proof. Jones v. GNC Franchising, Inc., 211 F.3d 495, 499 (9th Cir. 2000). 2. Analysis Plaintiff does not dispute that this action could have been brought in Nevada. See Opp’n 4. Towbin operates in Nevada, it is where the contract between Defendants was executed, and where any communications from Towbin originated. Towbin’s Mot. 5. Accordingly, venue is proper in the District of Nevada. See 28 U.S.C. 1391(b)(2). Moreover, as set forth below, upon weighing the relevant factors, the Court finds that the interests of convenience and fairness warrant transfer to the District of Nevada. a. Factors Weighing in Favor of Transfer Several factors support transferring this case to Nevada. First, transfer to Nevada will be more convenient for the witnesses, often considered the most important factor when deciding a motion to transfer. Jovel v. i-Health, Inc., No. CV 12-05526 DDP (JCGx), 2012 WL 5470057, at *4 (C.D. Cal. Nov. 8, 2012). Defendants contend that most of the witnesses are likely to be Towbin employees. See Towbin’s Mot. 10. While Defendants do not specifically identify any critical witnesses, given that Plaintiff’s complaint is that he received solicitation from Towbin, it seems likely that many relevant witnesses will be Towbin employees based in Nevada where Towbin operates. Plaintiff on the other hand, does not claim the Eastern District is convenient for any other witness besides himself. See Opp’n 4-5. Additionally, because Towbin’s business is based in Henderson, Nevada, it is likely the district court in Nevada will have subpoena power to compel testimony from any former employee, while this court will not. See Fed. R. Civ. P. 45(c)(1)(A) (“A subpoena may command a person to attend trial, hearing, or deposition . . . within 100 miles of where the person, resides, is employed, or regularly transacts business in person.”). Second, litigation costs will likely be reduced in Nevada. Defendants argue that most of the documentary evidence relevant to this case is maintained at Towbin’s dealership in Henderson. Towbin’s Mot. 11. Plaintiff does not appear to dispute this but instead argues that the physical location of the documents no longer carries much weight given technology has made it easier for documents to be transferred to different locations. Opp’n 5. While, “developments in electronic conveyance have reduced the cost of document transfer somewhat, costs of litigation can still be substantially lessened if the venue is in the district in which most of the documentary evidence is stored.” Park, 964 F. Supp. 2d at 1095. Further, litigation costs are usually reduced when the venue is located near the most witnesses expected to testify. Id. Because most of the documentary evidence and most of the witnesses are in Nevada, the Court finds litigation will be less costly there. Third, Nevada has the most contacts relating to Plaintiff’s cause of action. The only contacts related to the cause of action in the Eastern District, are that Plaintiff is a resident of this district and allegedly received the communications here. See generally Compl. Given that this is a putative class action, similar contacts might be found across the country. However, all these communications will have come from Towbin, located in Nevada, or from CDK, on Towbin’s behalf. Towbin’s Mot. 5-6. Further, Towbin’s marketing decisions and execution of the service contract with CDK occurred at its place of business in Nevada. 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 forum of plaintiff’s choosing. Lou v. Belzberg, 834 F.2d 730, 739 (9th Cir. 1987). However, when an individual represents a class, the named plaintiff’s choice of forum is given less weight. Id. Here, Plaintiff has chosen to litigate in his home district, the Eastern District of California, which weighs against transfer. See FAC ¶ 10. Additionally, litigating in Nevada would be less convenient for Plaintiff than litigating in his home state. Opp’n 5. However, because Plaintiff has chosen to represent a class, his choice of forum, and its convenience for him, is given less weight. See LaGuardia v. Designer Brands, Inc., No. 19CV1568 JM(BLM), 2020 WL 2463385, at *8 (S.D. Cal. May 7, 2020) (noting that TCPA class actions are normally attorney driven and require limited participation from the named plaintiff). Potential class plaintiffs may come from all over the country and plaintiff “provides no indication that any class members other than himself would not also have to travel hundreds of miles to litigate” in the Eastern District. Mina v. Red Robin Int’l, Inc., No. CV189472PSGGJSX, 2020 WL 4037163, at *3 (C.D. Cal. Mar. 3, 2020). Thus, ultimately, this factor does not weigh heavily against transfer. c. Neutral Factors Finally, a few factors neither weigh in favor of or against transfer of venue. For instance, the parties both have limited contacts with the other’s respective forum choice. Plaintiff’s contact with the Eastern District is great, as it is where he resides. See FAC ¶ 10. Plaintiff does not appear to have any contacts with Nevada other than the alleged communication with Defendants. See generally FAC. Defendants, on the other hand, have greater contacts with Nevada and their only alleged contacts with the Eastern District are their communications with Plaintiff. Id. Towbin has significant contacts with Nevada, as it is where it operates its business. See FAC ¶ 11. CDK also has contacts with Nevada as it is where it provided services to its client, Towbin. CDK’s Mot. 3. In addition, the TCPA is a federal law, which both districts are equally familiar with. Pierucci v. Homes.com Inc., No. CV-20-08048-PCT-DWL, 2020 WL 5439534, at *5 (D. Az. Sept. 10, 2020). d. Conclusion Weighing the relevant factors, the Court finds, on balance, that transfer to the District of Nevada is more convenient to the parties and witnesses in this case. Thus, the Court transfers this case to the District of Nevada under 28 U.S.C. § 1404(a). For the reasons set forth above, the Court DENIES eee IEE IE IEE ESERIES EINE EIS ESE IEEE ee

Defendants’ Motion to Dismiss and GRANTS Defendants’ Motion to for Transfer to the District of Nevada. Dated: November 18, 2020 Lh Ion : eaten 10