Missed Marks: Court Transfers Carpet Bagging TCPA Class for Improper Attempt to Bend Venue Rules to Take Advantage of 9th Circuit Case Law
As TCPAWorld is well aware, the 9th Circuit’s Marks decision broadly defines what constitutes an ATDS under the TCPA. And, of course, this decision has led plaintiffs to seek out various ways to bring their claims in California (and elsewhere within the Circuit) in order to take advantage of that broad ruling. However, the Court’s decision in Laguardia v. Designer Brands, Case No.: 19cv1568 JM(BLM), 2020 U.S. Dist. LEXIS 88142 (S.D. Cal. May 7, 2020), demonstrates that those deliberate tactics are not beyond reproach.
To the meat of the matter – in Laguardia, four plaintiffs sought to bring a TCPA class action in the Southern District of California. All plaintiffs sought to represent a No Consent and Revocation class stemming from alleged unsolicited telemarketing text messages. Two plaintiffs sought to represent a DNC class. All plaintiffs resided in California, but only one plaintiff (Laguardia) resided within the Southern District of California’s jurisdiction. The defendants, Designer Brands Inc. and DSW Shoe Warehouse, are each headquartered in Ohio – i.e., within the 6th Circuit’s jurisdiction.
Defendants filed a motion to transfer the entire class action to the Southern District of Ohio. The motion was premised on the fact that three of the plaintiffs have no connection to the Southern District of California, thus the Court has no specific jurisdiction over their claims against defendants. Defendants also argued that Laguardia’s claim, though having some connection to the district, was not sufficiently tied to the district to permit his putative class claims to proceed in California. In response, plaintiffs did not hide the fact that they sought to have their claims litigated in a favorable jurisdiction.
The Court agreed with defendants.
As to three of the plaintiffs, the Court found that none of them resided within the Southern District of California, and that each had failed to show a connection between the forum (the Southern District of California) and their claims (alleged unsolicited text messages) other than blatantly boot-strapping themselves to the similar claims of the only resident plaintiff (Plaintiff Laguardia). However, as the Court recognized, each plaintiff – not just a single plaintiff – “need[s] to connect their claims to this District” in order to trigger proper venue. Finding that the non-district-resident plaintiffs “have not tied their claims to any forum-related act or transaction on the part of Defendants,” the Court severed their claims from Plaintiff Laguardia’s and transferred them to the Southern District of Ohio.
But the defendants also sought to transfer Plaintiff Laguardia’s claim. As to that issue, the Court found that, although a plaintiff’s choice of forum is entitled to some deference, this is not the case when the plaintiff seeks to represent a putative class. However, recognizing that the defendants are Ohio residents, and that any marketing decisions related to the alleged text campaign likely took place in Ohio for that reason, the Court found that the balance of factors weighed in favor of transferring Plaintiff Laguardia’s claims to Ohio as well.
In the end, plaintiffs were prevented from taking advantage of court rules and procedures to force their claims to be litigated in a Marks friendly venue. It is even likely that their blatant effort to take maximal advantage of 9th Circuit precedent even doomed their resident-plaintiff’s (Laguardia) class claims from being litigated in the Southern District of California. Regardless, Laguardia makes clear that carpet-bagging claims is not permitted and, by doing so, a litigator may even jeopardize the status of the resident-plaintiff’s claims in the chosen venue and forum.