Opinion
No. 2:20-cv-02130-JAM-CKD
03-02-2021
RICHARD TUSO, on behalf of himself and others similarly situated, Plaintiff, v. NATIONAL HEALTH AGENTS,LLC, a Florida company, et al., Defendants.
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
This matter is before the Court on National Health Agents, LLC ("NHA") and Interstate Brokers of America, LLC ("IBA") ("Defendants") Motion to Dismiss. Mot., ECF No. 19. Richard Tuso ("Plaintiff") filed an opposition, ECF No. 29, to which Defendants replied, ECF No. 32. After consideration of the parties' briefing on the motions and relevant legal authority, the Court GRANTS Defendants' Motion to Dismiss. /// ///
This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled for February 23, 2021.
I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
Defendants NHA and IBA, two limited liability companies headquartered in Fort Lauderdale, Florida, place telemarketing calls promoting and selling the insurance services of other companies to consumers. Compl. ¶¶ 2-3, 23, 28, ECF No. 1. Between June and September 2020, Plaintiff, a resident of Roseville, California, received a number of unsolicited telemarketing calls from Defendants. Id. ¶¶ 49-51 (June 16, 2020 call), 52-53 (July 16, 2020 call), 54-56 (August 18, 2020 call), 57-60 (August 21, 2020 call), 61-62 (August 26, 2020 call), 81-82 (September 15,18, and 29, 2020 calls). In response, Plaintiff filed this action on behalf of himself and those similarly situated, under the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, Compl. ¶ 8, which prohibits sending unsolicited, autodialed text messages and calls to cellular telephones. Id. § 227(b)(1)(A)(iii). Defendants now move to dismiss. See Mot.
II. OPINION
A. Request for Judicial Notice
Defendants request the Court take judicial notice of two exhibits: IBA and NHA's Florida Limited Liability Company Annual Reports. See Defs.' Req. for Jud. Notice ("RJN"), ECF No. 20. Plaintiff does not oppose this request. The Court finds both documents to be matters of public record and therefore proper subjects of judicial notice.
Accordingly, the Court GRANTS Defendants' Request for Judicial Notice. However, the Court takes judicial notice only of the existence of these documents and declines to take judicial notice of their substance, including any disputed or irrelevant facts within them. Lee, 250 F.3d at 690; see also Gish v. Newsom, No. EDCV 20-755-JGB(KKx), at *2 (C.D. Cal. April 23, 2020) (explaining courts judicially notice only "the contents of the documents, not the truth of those contents").
B. Proper Venue
Defendants advance several arguments as to why Plaintiff's Complaint should be dismissed. Mot. at 3-12. Their leading argument is that Plaintiff has failed to establish that venue is proper in this District. Mot. at 1, 3-5.
Defendants also argue that the Court lacks subject matter jurisdiction, see Mot. at 5-10, and that Plaintiff have not plausibly alleged any misconduct by NHA, see id. at 10-12, to which Plaintiff responds the Court does have jurisdiction, see Opp'n at 4-8, and that NHA is liable under an alter ego theory, see id. at 9-10. Until the issue of venue is resolved, however, the Court need not reach these additional arguments.
1. Legal Standard
A Rule 12(b)(3) motion attacks the complaint as not alleging sufficient facts to establish that venue is proper. See Fed. R. Civ. P. 12(b)(3). The plaintiff bears the burden of establishing that venue is proper in the district in which the lawsuit was initiated. Hope v. Otis Elevator Co., 389 F. Supp. 2d 1235, 1243 (E.D. Cal. 2005).
A civil action may be brought in: (1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; or (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred. 28 U.S.C. § 1391(b). ///
2. Analysis
The parties agree that venue is not proper in the Eastern District of California under § 1391(b)(1), as none of the Defendants are residents of California. See Compl. ¶¶ 2-6; Mot. at 4. The parties, however, disagree about 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 Compl. ¶ 9; Mot. 4-5.
Defendants argue Plaintiff's two allegations - that (1) he resides in the District, Compl. ¶ 1; and (2) the wrongful conduct giving rise to this case was directed at Plaintiff in this District, id. ¶ 9 - are insufficient to establish a substantial part of the relevant events occurred in the Eastern District. Mot. at 4-5. As Defendants highlight, Plaintiff does not specifically allege that Defendants placed the calls from this District, nor that he received the calls from Defendants while in this District. Id. Notably, in opposition, Plaintiff points the Court back to the same two allegations. Opp'n at 4 (citing to Compl. ¶¶ 1, 9). Thus, the narrow question before the Court is whether Plaintiff has met his burden to establish venue is proper under § 1391(b)(2) with these two allegations.
Insisting he has, Plaintiff relies on this Court's decision in Neff v. Towbin Dodge LLC, No. 2:20-CV-00261-JAM-DMC, 2020 WL 6802188, at *2 (E.D. Cal. Nov. 19, 2020) (finding substantial part of the events giving rise to TCPA claim took place in the Eastern District of California "where the phone call was directed and where the harm was inflicted"). In Neff, the plaintiff alleged he resided in the Eastern District and received the TCPA-violative calls to his cell phone here. Id. at *1. From these allegations, the Court inferred that Neff had received the communications in this district; and because the plaintiff's injury, receipt of the communications, occurred in the district, the Court found a substantial part of the events giving rise to his claim occurred here and accordingly that venue was proper in Eastern District of California. Id. at *1-2. Neff therefore does support Plaintiff's general contention that in TCPA actions, venue may be proper in the district where Plaintiff received the calls.
However, Neff is of limited use to Plaintiff because the allegations in the two cases are distinguishable. Specifically, Plaintiffs' allegations here are more bare-bone and conclusory than those in Neff. For instance, the Neff plaintiff specifically alleged he received the calls to his cell phone while here in the District. Neff, 2020 WL 6802188, at *1. By contrast, here there is no such allegation. Instead, paragraphs 1 and 9 of the Complaint state only that "Plaintiff is a resident of Roseville" and that venue is proper in this district "because Plaintiff resides in this District and the wrongful conduct giving rise to this case was directed to plaintiff in this District." Compl. ¶¶ 1,9. The Court finds these bare-bone assertions unsupported by specific factual allegations are insufficient to establish venue is proper in the Eastern District. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (explaining at the motion to dismiss stage, the Court need not "accept as true a legal conclusion couched as a factual allegation"); see also Swartz v. KPMG LLP, 476 F.3d 756, 766 (9th Cir. 2007) (explaining that "[m]ere 'bare bones' assertions . . . or legal conclusions unsupported by specific factual allegations will not satisfy a plaintiff's pleading burden").
Because Plaintiff has not met his burden to establish venue is proper here, his complaint is dismissed without prejudice.
C. Transfer
Instead of bringing a motion to transfer venue along with their motion to dismiss, Defendants tack on the following statement to their Motion: "if the court determines that venue is improper, it may either dismiss the action or if it is in the interests of justice, transfer the action to the action to a district in which the action could have been brought." Mot. at 3-4. In support of this proposition, Defendants cite to King v. Russell, 963 F.2d 1301 (9th Cir. 1992). Mot. at 4. In King, the defendants originally requested transfer rather than dismissal, yet the district court chose to dismiss the case on the grounds of improper venue. Id. at 1304. The Ninth Circuit affirmed, finding that the district court had not abused its discretion. Id. at 1305. According to Defendants, King instructs that "whether to dismiss for improper venue or transfer venue is within the sound discretion of the district court." Mot. at 4; Reply at 2. Defendants further suggest that the proper venue for this case is the Southern District of Florida, where both Defendants reside. Mot. at 1.
The Court, however, does not agree that King, a case in which defendants requested transfer rather than dismissal and the court dismissed, clearly authorizes transfer here, where Defendants have only formally moved for dismissal rather than transfer. If Defendants seek to transfer this case to the Southern District of Florida, they should bring a motion to change venue. C.f. Motion to Dismiss and to Change Venue Neff, 2020 WL 6802188 at *1 (specifically bringing a "Motion to Dismiss for Improper Venue and, in the alternative, Motion to Change to Venue to the District of Nevada").
III. ORDER
For the reasons set forth above, Defendants' Motion to Dismiss is GRANTED WITHOUT PREJUDICE. If Plaintiff elects to amend his complaint, he shall file an Amended Complaint within twenty (20) days of this Order. Defendants' responsive pleadings are due twenty (20) days thereafter.
IT IS SO ORDERED. Dated: March 2, 2021
/s/ _________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE