Griffith v. Boll & Branch, LLC

ORDER On Defendant's Motion to Dismiss or Transfer Venue. Defendants motion to dismiss for improper venue 21 is Granted. Motion to Dismiss; Defendants motion to transfer venue 21 is Denied. Signed by Judge Jeffrey T. Miller on 2/3/2020.

Southern District of California, casd-3:2019-cv-01551

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1 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 SOUTHERN DISTRICT OF CALIFORNIA 7 8 DENA GRIFFITH, Case No.: 19cv1551 JM (LL) 9 Plaintiff, ORDER ON DEFENDANT'S 10 v. MOTION TO DISMISS OR TRANSFER VENUE 11 BOLL & BRANCH, LLC, 12 Defendant. 13 14 15 Defendant Boll & Branch, LLC ("Defendant) moves to dismiss for improper venue, 16 or alternatively, to transfer this action to the District of New Jersey or Central District of 17 California, pursuant to 28 U.S.C. §§ 1404 and 1406. (Doc. No. 21-1.) Plaintiff Dena 18 Griffith ("Plaintiff") opposes. (Doc. No. 26.) The motion has been fully briefed and the 19 court finds it suitable for submission without oral argument in accordance with Civil Local 20 Rule 7.1(d)(1). For the below reasons, Defendant's motion to dismiss for improper venue 21 is GRANTED. Defendant's motion to transfer venue is DENIED. 22 I. BACKGROUND 23 Plaintiff resides in Riverside County, California.1 On or about August 5, 2019, 24 Plaintiff used her cell phone to call Defendant's toll-free customer service number to ask 25 26 1 27 The body of Plaintiff's Complaint states that Plaintiff is a resident and citizen of California. (Compl. ¶ 3.) The civil cover sheet indicates that she resides in Riverside 28 County. (Doc. No. 1-1 at 1.) 1 19cv1551 JM (LL) 1 1 about placing an online order. (Compl. ¶ 12.) Plaintiff's cell phone number has a (619) 2 area code. (Id. ¶¶ 3-4.) Plaintiff ended the call shortly after being connected with 3 Defendant's customer service representative because she found the answer to her question 4 online. (Id. ¶12.) Plaintiff did not provide her phone number to Defendant's customer 5 service representative or consent to receive calls or text messages. (Id. ¶¶ 12-13.) Shortly 6 after placing the call, Plaintiff received multiple unsolicited text messages from Defendant 7 thanking her for contacting its customer service line. (Id. ¶ 14.) The text messages were 8 from a number with an (832) area code that belonged to Defendant or Defendant's agent. 9 (Id. ¶ 15.) Defendant acquired Plaintiff's phone number via surreptitious "number 10 trapping" technology provided by Twilio, Inc., Iterable, Inc., and/or Zendesk, Inc. (Id. ¶¶ 11 18, 21.) 12 On August 18, 2015, Plaintiff filed her Complaint on behalf of all persons who, 13 between August 18, 2015 and the present, called Defendant's customer service line and 14 thereafter received text messages via Twilio's "Copilot" technology. (Id. ¶ 21.) In her 15 Complaint, Plaintiff alleges violation of the Telephone Consumer Protection Act (TCPA), 16 47 U.S.C. § 227. Plaintiff also seeks class certification, injunctive relief, statutory 17 damages, and attorney's fees. 18 II. DISCUSSION 19 Defendant argues that venue is improper and inconvenient because (1) Defendant 20 does not reside in this district, and (2) no part of the alleged events giving rise to Plaintiff's 21 claim occurred in this district. (Doc. No. 21-1 at 7-13.) Plaintiff argues that Defendant 22 waived its opportunity to challenge venue or personal jurisdiction by (1) failing to raise 23 improper venue as an affirmative defense in its Answer or by filing a pre-answer motion, 24 and (2) actively litigating the case for three months. (Doc. No. 26 at 6-11.) For the below 25 reasons, venue is improper in the United States District Court for the Southern District of 26 California (hereinafter "this district"). Furthermore, an order transferring the case is not in 27 the interest of justice. 28 2 19cv1551 JM (LL) 1 1 A. Waiver 2 In her Complaint, Plaintiff states that venue is proper in this district because Plaintiff 3 is a resident and citizen of California and because her claims arose in substantial part from 4 actions Defendant purposefully directed towards this district. (Compl. ⁋ 3.) In its Answer, 5 Defendant did not list improper venue or lack of personal jurisdiction as affirmative 6 defenses. (Answer at 7-8.) Instead, Defendant stated it was without knowledge or 7 information sufficient to enable it to admit or to deny whether venue was proper, or whether 8 the court had personal jurisdiction over Defendant, and therefore denied the same. (Answer 9 ¶ 4.) Defendant argues that its denial sufficed to raise and preserve its improper venue and 10 lack of personal jurisdiction defenses. (Doc. No. 21-1 at 7 n.2.) Defendant also argues 11 that it did not waive these defenses by its conduct. (Doc. No. 27 at 2-6.) 12 1. Failure to Raise in Answer 13 Improper venue or lack of personal jurisdiction are waived as defenses if not raised 14 either in a pre-answer motion or an answer. Fed. R. Civ. P. 12(h)(1); Costlow v. Weeks, 15 790 F.2d 1486, 1488 (9th Cir. 1986) ("A defendant must object to venue by motion or in 16 his answer to the complaint or else his objection is waived."); see also City of S. Pasadena 17 v. Mineta, 284 F.3d 1154, 1156 (9th Cir. 2002) ("[M]ost jurisdictional objections – such as 18 defects in personal jurisdiction, venue or service of process – are waived unless asserted 19 early in the litigation."). Improper venue and lack of personal jurisdiction are not included 20 in the list of affirmative defenses under Rule 8(c). Consequently, district courts have found 21 that failure to raise these defenses as affirmative defenses in an answer does not necessarily 22 waive the opportunity to challenge venue and personal jurisdiction in a post-answer 23 motion, as long as those defenses are raised in some manner in the answer. See McCurley 24 v. Royal Seas Cruises, Inc., Case No. 17cv986 BAS (AGS), 2019 WL 3006469, at *4 (S.D. 25 Cal. July 10, 2019) (all the defendant must do to preserve a lack of personal jurisdiction 26 defense is "simply invoke" the defense in its "first defensive move"); Rillito River Solar 27 LLC v. Wencon Dev. Inc., Case No. 16cv03245 PHX (DLR), 2017 WL 5598228, at *3 (D. 28 Ariz. Nov. 21, 2017) (improper venue may be challenged in a post-answer motion to 3 19cv1551 JM (LL) 1 1 dismiss if the objection was preserved in the answer); Infogation Corp. v. HTC Corp., Case 2 No. 16cv1902 H (JLB), 2017 WL 2869717, at *2 (S.D. Cal. July 5, 2017) (defendant's 3 denial in an answer that venue is proper may be sufficient to avoid waiver); Bridgeport 4 Enterprises, Inc. v. ValCom, Inc., Case No. 12cv7159 GHK (FMO), 2013 WL 12129388, 5 at *1 (C.D. Cal. Mar. 29, 2013) (denying proper venue and personal jurisdiction in an 6 answer, as opposed to affirmatively asserting it, is sufficient to avoid waiver); Yocum v. 7 Rockwell Med. Techs., Inc., Case No. 12cv568 MMA (MDD), 2012 WL 2502701, at *2 8 (S.D. Cal. June 27, 2012) ("[C]ourts are split on allowing post-answer motions to dismiss, 9 and no bright-line rule against allowing such a motion exists in the Ninth Circuit[.]"); 10 Jaliwa v. Concerned Citizens of S. Cent. L.A., Case No. 06cv2617 BTM (LSP), 2007 WL 11 2021818, at *2 (S.D. Cal. July 10, 2007). In its Answer, Defendant denied that venue was 12 proper and denied that it was subject to the court's personal jurisdiction. Defendant 13 therefore did not waive these defenses by failing to raise them as affirmative defenses in 14 its Answer, or by bringing them in the instant post-Answer motion. 15 2. Waiver by Conduct 16 "Most defenses, including the defense of lack of personal jurisdiction, may be 17 waived as a result of the course of conduct pursued by a party during litigation." Peterson 18 v. Highland Music, Inc., 140 F.3d 1313, 1318 (9th Cir. 1998), as amended on denial of 19 reh'g and reh'g en banc (June 15, 1998). This includes the defense of improper venue. 20 Misch on Behalf of Estate of Misch v. Zee Enter.'s, Inc., 879 F.2d 628, 631-32 (9th Cir. 21 1989); see also Wordtech Sys. Inc. v. Integrated Network Sols., Corp., Case No. 22 2:04cv1971 TLN, 2014 WL 2987662, at *3 (E.D. Cal. July 1, 2014) ("[M]erely filing an 23 initial venue objection does not preclude subsequent waiver of the objection."). In Misch, 24 the Ninth Circuit held that an improper venue defense is waived by conduct that 25 "constitutes a tacit admission on the part of the movant that the court has personal 26 jurisdiction, that venue is properly laid there, and that the court should dispose of the case 27 on its merit." 879 F.2d at 631-32. The court found that filing a motion for summary 28 judgment prior to a motion to dismiss resulted in waiver of an improper venue defense. 4 19cv1551 JM (LL) 1 1 Id.; see also Lynch v. Alaska Tanker Co., LLC, Case No. 03cv2484 CW, 2004 WL 2 2496153, at *3 (N.D. Cal. Nov. 4, 2004). 3 Plaintiff argues that Defendant waived its improper venue defense by, over the 4 course of four months, negotiating and proposing case schedules, briefing schedules, 5 discovery orders, protective orders, and electronically stored information protocol. (Doc. 6 No. 26 at 9.) Plaintiff also points out that Defendant moved for pro hac vice admissions, 7 participated in an Early Neutral Evaluation (ENE) Conference, and propounded document 8 requests, interrogatories, and requests for admission. (Id. at 9-10.) Defendant argues that 9 by participating in the ENE and propounding discovery it was merely complying with the 10 court's orders, as well as the court's Local Rules and the Federal Rules of Civil Procedure. 11 (Doc. No. 27 at 5.) 12 Defendant's conduct is not comparable to filing a motion for summary judgment and 13 does not otherwise constitute a tacit admission that venue is proper in this district. See 14 Wyles v. Sussman, Case No. 17cv7722 DMG (SK), 2019 WL 6899069, at *2 (C.D. Cal. 15 Aug. 6, 2019) (finding that filing an anti-SLAPP motion does not waive objection to 16 personal jurisdiction because it is not akin to filing a motion for summary judgment). Most 17 of Defendant's conduct was prompted by court orders. Defendant was ordered to 18 participate in the ENE, (Doc. No. 6), and did so after a joint motion to continue the ENE 19 was denied. (Doc. No. 8.) Furthermore, negotiating schedules and aspects of discovery, 20 as well as making initial disclosures, is part of the court's mandatory ENE process and 21 required by Federal Rule of Civil Procedure 26. See Meras Eng'g, Inc. v. CH2O, Inc., 22 Case No. 11cv389 EMC, 2013 WL 146341, at *9 (N.D. Cal. Jan. 14, 2013) 23 ("[P]articipating in mediation, agreeing to a discovery schedule, and providing initial 24 disclosures" does not amount to waiver where defendant "also continued to raise the issue 25 of venue[.]"). In its reply, Defendant's counsel attaches an October 30, 2019 e-mail raising 26 the issue of venue with Plaintiff's counsel. (Doc. No. 27-1 at 2.) Defendant also states 27 that it raised the improper venue issue at the ENE on November 7, 2019. (Doc. No. 27 at 28 3.) 5 19cv1551 JM (LL) 1 1 Defendant's multiple requests for counsel to appear pro hac vice also do not suggest 2 a tacit admission of proper venue, only that out-of-district counsel wished to appear before 3 the court on behalf of Defendant, which they did in the instant motion. See Freeney v. 4 Bank of Am. Corp., Case No. 15cv2376 (MMM) PJW, 2015 WL 4366439, at *20 (C.D. 5 Cal. July 16, 2015) ("[C]ounsels' filing of initial appearances or motions for admission pro 6 hac vice are not the defensive moves in which a waiver of personal jurisdiction can 7 occur."). Finally, Defendant's conduct and delay in filing the instant motion does not rise 8 to the level that other courts have found sufficient to constitute waiver. See Infogation 9 Corp., 2017 WL 2869717, at *3 (in patent case, prior to filing motion to dismiss for 10 improper venue, defendants litigated the case for a year, including by serving invalidity 11 contentions, filing two motions to stay, filing a motion for judgment on the pleadings, and 12 participating in claim construction of the patent); see also Meras, 2013 WL 146341, at *8 13 (noting that courts have found implied waiver of venue where a party repeatedly 14 represented that venue was appropriate, or actively pursued substantive motions, but not 15 where parties merely part