Simpson v. The J.G. Wentworth Co.

• Decision Date: 19 January 2023
• Docket Number: Civil Action 22-2911-KSM
• Parties: DOUGLAS SIMPSON, on behalf of himself and others similarly situated, Plaintiff, v. THE J.G. WENTWORTH COMPANY, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

DOUGLAS SIMPSON, on behalf of himself and others similarly situated, Plaintiff,
v.
THE J.G. WENTWORTH COMPANY, Defendant.

Civil Action No. 22-2911-KSM

United States District Court, E.D. Pennsylvania

January 19, 2023

MEMORANDUM

MARSTON, J.

Plaintiff Douglas Simpson brings this putative class action against Defendant The J.G. Wentworth Company under the Telephone Consumer Protection Act (“TCPA”) and the Florida Telephone Solicitations Act (“FTSA”). (Doc. No. 1.) Plaintiff now moves to transfer the case to the United States District Court for the Middle District of Florida, citing Defendant's recent discovery responses, which identified the Florida-based vendor that placed the call at issue on Defendant's behalf. (Doc. No. 19 at 4.) Defendant opposes the motion. (Doc. No. 21.) For the reasons discussed below, Plaintiff's motion is granted, and this matter is transferred to the Middle District of Florida.

I. BACKGROUND

Plaintiff claims that on July 13, 2022, he received a pre-recorded telemarketing call on his cell phone. (Doc. No. 1 at ¶¶ 22, 26.) That call was eventually transferred to an employee for Defendant, who asked about Plaintiff's financial condition and whether he wished to borrow money. (Id. at ¶¶ 22-36.) Plaintiff, who lives in Florida, argues that this call violated the TCPA and FTSA, which prohibit individuals and companies from making telemarketing calls using

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automated systems or prerecorded messages without first receiving the recipient's prior express written consent. See 47 U.S.C. § 227(b)(1); Fla. Stat. § 501.059(8)(a).

Plaintiff filed his putative, class action Complaint in this Court on July 25, 2022. (Doc. No. 1.) On August 9, 2022, Defendant filed its Answer and denied making the call at issue, alleging that “Plaintiff reached out to a third-party regarding interest in its services and, given Plaintiff's request to that third-party, Plaintiff was ultimately routed to [Defendant].” (Doc. No. 10 at ¶¶ 4, 21, 31.) Defendant did not identify the alleged third party. Likewise, in the parties' Joint Rule 26(f) Report, Defendant again states that it “did not make the calls at issue,” and that it “works with multiple vendors, who direct leads to multiple entities,” including Defendant. (Joint 26(f) Report at 2.) “Moreover, these vendors themselves work with multiple sub-vendors who generate leads.” (Id.) Again, Defendant did not identify the third-party vendor.

The Court held a preliminary pretrial conference with counsel for the parties on October 6, 2022 and issued a scheduling order a few days later. (See Doc. No. 15.) That Order set a deadline of February 1, 2023 for the parties to amend the pleadings and add parties; a deadline of March 1, 2023 for Plaintiff to move for class certification; and a discovery deadline of June 2, 2023. (See id. at ¶¶ 2-7.) In November 2022, the Court approved the parties' protective order and confidentiality agreement for discovery materials, but otherwise, the Court has given little oversight this case.

On December 6, 2022, Plaintiff filed a motion to transfer the action to the United States District Court for the Middle District of Florida, citing Defendant's recent discovery responses, which showed that “the calls at issue were placed by . . . a vendor named Digital Media Solutions, LLC (‘DMS') or a subvendor of DMS.” (Doc. No. 19 at 4.) According to Plaintiff, “DMS has its principal place of business in the Middle District of Florida,” which is also where

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Plaintiff resides. (Id.) He argues that transfer is thus appropriate under 28 U.S.C. § 1404(a). Defendant opposes the motion, arguing that Plaintiff could have initially filed the case in Florida but chose to litigate in this Court and nothing has changed since he made that decision that warrants transfer now. (Doc. No. 21.)

II. DISCUSSION

In federal court, venue transfers are governed by 28 U.S.C. §§ 1404(a) and 1406(a). Jumara v. State Farm Ins. Co., 55 F.3d 873, 878 (3d Cir. 1995). Section 1404(a) governs transfer when “both the original and the requested venue are proper.”^[1]Id. That Section states that a district court may, for the convenience of the parties and witnesses and if it is in the interest of justice, “transfer any civil action to any other district or division where it may have been brought or to any district or division to which all parties have consented.” 28 U.S.C. § 1404(a). Accordingly, a district court must conduct a two-step inquiry in considering a motion governed by Section 1404(a). See Vt. Juvenile Furniture Mfg., Inc. v. Factory Direct Wholesale, Inc., 317 F.R.D. 16, 20 (E.D. Pa. 2016). It must first determine whether venue is proper in the transferee district and, if so, it must then determine whether transfer would be in the interests of justice.

“In addressing a motion to transfer, all well-pleaded allegations in the complaint are generally taken as true unless contradicted by the defendant's affidavits, and the Court may examine facts outside the complaint to determine proper venue.”

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Cigna Corp. v. Celgene Corp., CIVIL ACTION NO. 21-90-KSM, 2021 WL 2072210, at *2 (E.D. Pa. May 24, 2021) (internal quotations omitted). The party seeking transfer “bears the burden of persuasion.” In re McGraw-Hill Glob. Educ. Holdings LLC, 909 F.3d 48, 57 (3d Cir. 2018).

A. Venue is Proper in the Middle District of Florida.

The Court must first determine whether this action could have been brought in the Middle District of Florida. See 28 U.S.C. § 1404(a) (permitting transfer of an action to any district “where it might have been brought”). The general venue statue, 28 U.S.C. § 1391, governs this analysis. As relevant here, that Section provides:

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; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated

28 U.S.C. § 1391(b).

Here, a “substantial part of the events or omissions giving rise to the claim occurred” in the Middle District of Florida because that is where Plaintiff resides and where he received the allegedly unlawful telephone call. See Fitzhenry v. Guardian Protection Servs., Inc., CIVIL ACTION NO. 16-1253, 2016 WL 6652760, at *1 (W.D. Pa. Nov. 9, 2016) (“District courts find proper venue where the alleged injury occurred which, in a TCPA action, is where the telephone call was received.”). In the alternative, venue is proper in that district under § 1391(b)(1) because Defendant would be subject to personal jurisdiction there. See 28 U.S.C. § 1391(c)(2) (explaining that a corporation is “deemed to reside, if a defendant, in any judicial district in which such a defendant is subject to the court's personal jurisdiction with respect to the civil action in question”).

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The Complaint alleges that Defendant placed or directed^[2]the allegedly unlawful telemarketing call-a “tortious act” under Florida's longarm statute. See Fla. Stat. § 48.193(1)(a)(3) (extending specific jurisdiction over a nonresident that “commits a tortious act within” the State of Florida); see also Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1353-54 (11th Cir. 2013) (explaining that “a nonresident defendant commits ‘a tortious act within Florida' when he commits an act outside the state that causes injury within Florida” (alterations adopted)); Keim v. ADF MidAtlantic, LLC, 199 F.Supp.3d 1362, 1367 (S.D. Fla. 2016) (“Thus, Florida's long-arm statute is satisfied as to a TCPA claim that arises from a nonresident defendant making a telephonic communication into Florida.”). This act also creates sufficient “minimum contacts with [the Middle District of Florida], such that the maintenance of the suit” in that District would “not offend ‘traditional notions of fair play and substantial justice.'” Int'l Shoe Co. v. State of Wash., Off. of Unemployment Compensation & Placement, 326 U.S. 310, 316 (1945) (citation omitted).

Notably, Plaintiff alleges that Defendant “expressly aimed” its tortious conduct at the Middle District of Florida when it made the unlawful telephone call to Plaintiff's cell phone in that District. (Doc. No. 1 at ¶¶ 6, 23, 26 (alleging that Defendant placed the unwanted telemarketing calls to Plaintiff's residential cell phone, while Plaintiff was in Florida).) Plaintiff

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felt the brunt of the harm in that District. (See id. at ¶ 6.) And the exercise of jurisdiction over Defendant in Florida comports with traditional notions of fair play and substantial justice because although Defendant claims it will be burdened if required to litigate in Florida, the State of Florida has “an interest in adjudicating a dispute regarding an intentional tort harming one of its own residents,” and Plaintiff has an interest in obtaining “convenient and effective relief” in his home district. Keim, 199 F.Supp.3d at 1370-71 (finding the effects test discussed in Calder v. Jones, 465 U.S. 783 (1984) applied to TCPA claim asserted by Florida resident against nonresident defendant and concluding that exercise of jurisdiction comported with traditional notions of fair play and substantial justice); see also Ott v. Mortgage Investors Corp. of Ohio, Inc., 65 F.Supp.3d 1046, 1058-59 (D. Or. 2014) (finding specific jurisdiction properly asserted in Oregon over nonresident defendants in TCPA case); Luna v. Shac, LLC, No. C14-00607 HRL, 2014 WL 3421514, at *4 (N.D. Cal. July 14, 2014) (finding Calder effects test satisfied and specific jurisdiction properly asserted over nonresident defendant in TCPA case); Hudak v. Berkley Grp., Inc., No. 3:13-cv-00089-WWE, 2014 WL 354676, at *3 (D. Conn. Jan. 23, 2014) (“As the facts in plaintiff's complaint support the conclusion that defendants were responsible for the phone calls at...