EDWARD M. CHEN, District Judge.
Plaintiff Brian Schlesinger has filed suit against Defendant Joshua Collins, doing business as xpresscapitalgroup.com,
According to Mr. Collins, the instant case against him must be dismissed for lack of personal jurisdiction. See Fed. R. Civ. P. 12(b)(2) (providing that a defendant may file a motion to dismiss based on lack of personal jurisdiction).
Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800-01 (9th Cir. 2004).
The plaintiff bears the burden of establishing personal jurisdiction. See id. at 800. Where a "motion is based on written materials rather than an evidentiary hearing, `the plaintiff need only make a prima facie showing of jurisdictional facts.'" Id. "Although the plaintiff cannot `simply rest on the bare allegations of its complaint,' uncontroverted allegations in the complaint must be taken as true"; in addition, "[c]onflicts between parties over statements contained in affidavits must be resolved in the plaintiff's favor." Id.
In support of his claim that there is no personal jurisdiction, Mr. Collins has submitted a declaration. The bulk of that declaration is directed to his assertion that this Court lacks general jurisdiction over him. See id. at 801 (stating that, "[f]or general jurisdiction to exist over a nonresident defendant . . ., the defendant must engage in `continuous and systematic general business contacts' that `approximate physical presence' in the forum state" — "an exacting standard . . . because a finding of general jurisdiction permits a defendant to be haled into court in the forum state to answer for any of its activities anywhere in the world"); Collins Decl. ¶¶ 2-13.
In response, Mr. Schlesinger does not make any claim that this Court has general jurisdiction over Mr. Collins. Rather, Mr. Schlesinger argues only that there is specific jurisdiction.
The Ninth Circuit has
Id. at 802. With respect to the first prong, "[a] purposeful availment analysis is most often used in suits sounding in contract" while "[a] purposeful direction analysis . . . is most often used in suits sounding in tort." Id. In the case at bar, Mr. Schelsinger is making essentially a tort claim, not a contract claim. Therefore, the Court applies a purposeful direction analysis.
Purposeful direction is evaluated "under the three-part `effects' test traceable to the Supreme Court's decision in Calder v. Jones, 465 U.S. 783 (1984)." Id. at 803. Under this test, a defendant must have "`(1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum state.'" Id.
Here, Mr. Collins challenges only the second and third elements above — in particular, disputing that he, or someone acting on his behalf, engaged in conduct expressly aimed at California.
The problem for Mr. Collins is that, even if he did not act in a "premeditated" fashion — i.e., plan in advance to target California — he (or someone acting on his behalf) ultimately did target California, and with sufficient knowledge of such based on the California area code for Mr. Schlesinger's phone number. Under these circumstances, the second and third elements of the Calder effects test have been sufficiently satisfied. See, e.g., Moser v. Health Ins. Innovations, Inc., No. 3:17-cv-1127-WQH-KSC, 2018 U.S. Dist. LEXIS 3237, at *11 (S.D. Cal. Jan. 5, 2018) (stating that "[t]he effects test is satisfied by a plaintiff's uncontroverted allegation that a defendant violated the TCPA by calling a phone number with a forum state area code"); Luna v. Shac, LLC, No. C14-00607 HRL, 2014 U.S. Dist. LEXIS 96847, at *11 (N.D. Cal. July 14, 2014) ("agree[ing] with [plaintiff] that where [defendant] intentionally sent text messages directly to cell phones with California based area codes, which conduct allegedly violated the TCPA and gave rise to this action, [defendant] expressly aimed its conduct at California" and also "knew that the alleged harm caused by the text messages it sent to California cell phones was likely to be suffered in California"); Branham v. ISI Alarms, Inc., No. 12-CV-1012 (ARR) (MDG), 2013 U.S. Dist. LEXIS 124933, *28 (E.D.N.Y. Aug. 30, 2013) (holding that, "since `[t]he TCPA is essentially a strict liability statute, which prohibits the use of any automatic dialing system or prerecorded or artificial voice to a cell-phone, defendants reasonably should have anticipated that the use of such a system to call a New York cell-phone number could subject them to being haled into court in New York"); Heidorn v. BDD Marketing & Mgmt. Co., No. C-13-00229 JCS, 2013 U.S. Dist. LEXIS 177166, at *3, *25 (N.D. Cal. Aug. 9, 2013) (finding personal jurisdiction in TCPA case where calls were made to a California resident at a California number). Compare Abedi v. New Age Med. Clinic PA, No. 1:17-CV-1618 AWI SKO, 2018 U.S. Dist. LEXIS 105932, at *11 (E.D. Cal. June 25, 2018) (finding no specific jurisdiction where "the evidence before the Court indicates that [defendant] did not know that it was sending text messages into California"; "[o]f critical importance, the cell phone number provided to [defendant] was for a non-California number"). This is not a situation where the forum state was implicated only by "happenstance." Morrill v. Scott Financial Corp., 873 F.3d 1136, 1146 (9th Cir. 2017). Notably, in Morrill, the Ninth Circuit discussed the underlying facts in Calder, explaining that, in that case, there was specific jurisdiction largely because "the defendants published the allegedly defamatory statements in the forum state." Castillo v. Caesars Entm't Corp., No. 18-cv-05781-EMC, 2018 U.S. Dist. LEXIS 201721, at *10-11 (N.D. Cal. Nov. 28, 2018) (addressing Morrill's discussion of Calder). The instant case is analogous; there is specific jurisdiction because Mr. Collins, or someone acting on his behalf, made a phone call to California. The TCPA cases finding jurisdiction are consistent with Walden v. Fiore, 571 U.S. 277 (2014), because the defendant, as in this case, targeted California telephone numbers (and presumably residents of California), inflicting harm within this state.
Mr. Collins protests still that, even if there is purposeful direction, specific jurisdiction obtains only where the exercise of such would be reasonable, and here it would be unreasonable — e.g., his contacts with California were simply "fortuitous," it would be a significant burden for him (as a sole proprietor) to defend in this Court, California has an interest in the state law claim but not the federal TCPA claim, and it would be more efficient to litigate in Florida where the bulk of the witnesses and evidence are likely to be located. Mot. at 16-18. Although Mr. Collins's position is not entirely lacking in merit, the Court is not persuaded. Mr. Collins shoulders the burden of proving that the exercise of jurisdiction would be unreasonable, and, under Ninth Circuit law, must "`present a compelling case'" of unreasonableness. Schwarzenegger, 374 F.3d at 802. Here, given Mr. Collins knew he was making a call into California, Mr. Collins has not met that high standard.
Accordingly, the Court denies the motion to dismiss based on lack of personal jurisdiction.
Mr. Collins also moves to dismiss based on improper venue. Title 28 U.S.C. § 1391 is the applicable venue statute. It provides as follows:
A civil action may be brought in —
13 U.S.C. § 1391(b).
In the instant case, Mr. Collins argues that "virtually all the actions taken in this matter occurred in Florida," where he resides. Mot. at 19. But even accepting that as true, that 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. See Mitrano v. Hawes, 377 F.3d 402, 405 (4th Cir. 2004) (noting that "it is possible for venue to be proper in more than one judicial district"); S.F. Residence Club, Inc. v. Leader Bulso & Nolan, PLC, No. C-13-0844 EMC, 2013 U.S. Dist. LEXIS 68600, at *12 (N.D. Cal. May 14, 2013) (noting that "[s]ection 1391(b)(2) does not require that a majority of the events have occurred in the district where suit is filed, nor does it require that the events in that district predominate"; also, "[t]here may be more than one district in which a substantial part of the events giving rise to the claim occurred") (internal quotation marks omitted); Kelly v. Qualitest Pharm., Inc., No. CIV-F-06-116 AWI LJO, 2006 U.S. Dist. LEXIS 65814, at *24-25 (E.D. Cal. Aug. 28, 2006) (indicating that, under subsection (2), all that is required is that "`significant events or omissions material to the plaintiff's claim must have occurred in the district in question'"). The Court therefore denies the motion to dismiss based on improper venue.
Finally, Mr. Collins argues that, even if the Court does not dismiss the instant case based on lack of personal jurisdiction or improper venue, it should, at the very least, transfer the case to the Middle District of Florida pursuant to 28 U.S.C. § 1404. Section 1404 provides in relevant part as follows: "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 or to any district or division to which all parties have consented." 28 U.S.C. § 1404(a).
There is no dispute that Mr. Schlesinger could have brought his lawsuit in the Middle District of Florida, where Mr. Collins resides. Therefore, the only question is whether there should be a transfer to Florida for the convenience of the parties and witnesses and in the interest of justice.
A district court has discretion in deciding whether to transfer. See Ventress v. Japan Airlines, 486 F.3d 1111, 1118 (9th Cir. 2007) (stating that a "district court's decision to change venue is reviewed for abuse of discretion"; adding that "`[w]eighing of the factors for and against transfer involves subtle considerations and is best left to the discretion of the trial judge'"). In making the decision on whether to transfer, a court may consider factors such as:
Vu v. Ortho-Mcneil Pharm., Inc., 602 F.Supp.2d 1151, 1156 (N.D. Cal. 2009) (Illston, J.). The party moving for transfer has the burden in showing that transfer is appropriate. See Commodity Futures Trading Comm'n v. Savage, 611 F.2d 270, 279 (9th Cir. 1979); S.F. Residence Club, Inc. v. Leader Bulso & Nolan, PLC, No. C-13-0844 EMC, 2013 U.S. Dist. LEXIS 68600, at *22 (N.D. Cal. May 14, 2013).
In the instant case, some of the above factors are neutral or largely neutral. For example:
As for the remaining factors, the critical ones in the instant case are the plaintiff's choice of forum, the ease of access to evidence, and the convenience of the witnesses. The Court does afford some deference to Mr. Schlesinger's choice of California as a forum, particularly as he resides in California and at least a part of the events took place in California given that the phone call at issue was placed to California. But that deference is limited because Mr. Schlesinger has brought a putative class action that is nationwide in scope. See generally Castillo v. Caesars Entm't Corp., No. 18-cv-05781-EMC, 2018 U.S. Dist. LEXIS 201721, at *15 (N.D. Cal. Nov. 28, 2018) (noting that, "although a plaintiff's choice of forum is typically afforded deference, such deference is not owed where the plaintiff brings a class action, the plaintiff does not reside in the forum, and/or no relevant action took place in the forum").
With respect to ease of access to evidence, it seems unlikely that there will be any real documentary evidence of note located in California. Rather, the bulk of the documentary evidence will likely be in Florida, where Mr. Collins resides.
As for the convenience of the witnesses, Mr. Schlesinger does reside in California. But Mr. Collins resides in Florida, he runs his business out of Florida, see Collins Decl. ¶ 2 (testifying that the principal place of business for Xpress Capital Group is located in Florida), and the critical issue in this case will be how he runs his business. Mr. Collins also appears to have at least one employee, Michelle Borrego, who is based in Florida, see Collins Decl. ¶ 3 (testifying that Xpress Capital Group "has no employees outside of Florida"), and it appears that Ms. Borrego was the employee who called Mr. Schlesinger. See Collins Decl. ¶ 18. Thus, the convenience-of-the-witnesses factor weighs strongly in Mr. Collins's favor. See, e.g., Castillo, 2018 U.S. Dist. LEXIS 201721, at *16 ("The critical witnesses will be Caesars's employees — e.g., those who made the decision to send the text messages.").
Taking into account all of the above, including but not limited to the limited deference afforded to Mr. Schlesinger's choice of forum, the Court concludes that a transfer to the Middle District of Florida is warranted.
For the foregoing reasons, Mr. Collins's motion to dismiss is denied but his motion to transfer is granted. The Clerk of the Court is instructed to transfer this case to the Middle District of Florida in accordance with this opinion and close the file.
This order disposes of Docket No. 8.
