TCPA Defendant Challenges Venue by Presenting Better Forum
The district court in New Jersey recently reminded TCPA litigants that there can be much more to jurisdiction and venue than meets the eye. Even a court with proper jurisdiction can exercise its discretion and send a case to a more convenient forum.
The court did just that in Geraci v. Red Robin Int’l, Civil No. 1:18-cv-15542-RMB, 2019 U.S. Dist. LEXIS 104989 (D. N.J. June 21, 2019), transferring the plaintiff’s TCPA case from the plaintiff’s home state of New Jersey to the state of the defendant’s headquarters in Colorado. The plaintiff, a New Jersey resident, alleged that the defendant Red Robin, a Nevada corporation headquartered in Colorado, violated the TCPA by sending unauthorized texts to the plaintiff’s cell phone through the Red Robin customer loyalty program.
Despite Red Robin having 13 locations in New Jersey (out of over 400 nationwide), the technology used to send the texts at issue and Red Robin’s information systems were both located in Colorado. So when the plaintiff filed a putative TCPA class action in New Jersey district court, Red Robin moved to transfer the case to Colorado district court pursuant to 28 U.S.C. § 1404(a).
The New Jersey court found that the public and private interests “tilt[ed]” in favor of Colorado as the better forum for the plaintiff’s case.
As to public interests, the court found that Colorado was the better venue based on the practicality of the forum, administrative considerations, and local interest in local controversies. First, a significant number of records, witnesses, and technology were located in Colorado, as compared to a putative class of Red Robin customers who resided across the country and would have to travel regardless. In addition to the location of witnesses and evidence, the court also leaned towards Colorado because the court there had a shorter median time from filing to trial than its New Jersey counterpart, and because the Colorado court would have a “more compelling local interest” in “a case about a company headquartered in Colorado allegedly harming citizens throughout the nation by using technology in Colorado to effect marketing decisions made in Colorado.” (Emphasis added).
The court held that private interests likewise weighed in favor of Colorado over New Jersey, based on the defendant’s choice of forum and where the claim arose. The court gave less consideration to the plaintiff’s choice of forum because the plaintiff need not “participate extensively” for the matter to proceed and the critical evidence in the case would come primarily from the defendant. The court followed the majority approach affording less deference to a class representative’s choice of forum, where most of the facts applicable to the class as a whole arose elsewhere.
Here, New Jersey, the base of the plaintiff’s individual claim, could not win out over Colorado—“where Defendant is headquartered, where Defendant made the marketing decisions to send the alleged automated messages, and where the technology was used to communicate with Royalty Program members.” While the plaintiff argued that the claim arose in New Jersey, where the plaintiff received the text messages, the court held that because the putative class allegedly suffered injury nationwide, the case revolved around the defendant’s activities in Colorado, not the location of the plaintiff’s individual injuries.
Geraci is a reminder that forum challenges can be worthwhile, particularly in putative class actions, where the plaintiff may struggle to identify a “center of gravity” for all class members beyond the defendant’s home state. In these instances, defense counsel should ask not only whether a court has proper jurisdiction but also whether that court is the best forum given the public and private interests at stake.
With many TCPA issues split by jurisdiction, it is at least worth asking the question about venue—though the court has the ultimate discretion on where the case will proceed.