District Court (Cal.) Says California TCPA Plaintiff Properly Sued Nevada Defendant in California, But, Since Plaintiff Sought to Represent a Class, Defendant’s Venue Choice of Nevada Controlled

In Neff v. Towbin Dodge LLC, No. 2:20-cv-00261-JAM-DMC, 2020 U.S. Dist. LEXIS 217045 (E.D. Cal. Nov. 18, 2020), Judge Mendez found that a TCPA Plaintiff properly sued in his home venue.

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 U.S. Dist. LEXIS 167193, 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 U.S. Dist. LEXIS 68600, 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, 2019 U.S. Dist. LEXIS 167193, [WL] at *3; see also Schick v. Resolute Bank, No. CV-19-02218-PHC-DLR, 2019 U.S. Dist. LEXIS 227944, 2019 WL 8014435, at *1 (D. Ariz. Nov. 13 2019); Sapan v. Dynamic Network Factory, Inc., No. 13-CV-1966-MMA (WVG), 2013 U.S. Dist. LEXIS 192266, 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.

But, Plaintiff’s home field advantage did not apply because Plaintiff sued as a class representative.

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 U.S. Dist. LEXIS 88142, 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 U.S. Dist. LEXIS 127905, 2020 WL 4037163, at *3 (C.D. Cal. Mar. 3, 2020). Thus, ultimately, this factor does not weigh heavily against transfer. . . . 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 [*11]  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 U.S. Dist. LEXIS 165956, 2020 WL 5439534, at *5 (D. Az. Sept. 10, 2020). . . . 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).