`Case 2:20-cv-00455-RAJ-RJK Document 37 Filed 09/10/20 Page 1 of 12 PageID# 248
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF ARIZONA
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`Lisa Pierucci,
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`Plaintiff,
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`v.
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`Homes.com Incorporated,
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`Defendant.
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`No. CV-20-08048-PCT-DWL
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`ORDER
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`Pending before the Court are four motions filed by Defendant Homes.com,
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`Incorporated (“Homes.com”). (Docs. 13, 14, 15, 28). The first is a motion to transfer
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`venue to the Eastern District of Virginia pursuant to 28 U.S.C. § 1404(a), the second a
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`motion to dismiss under Rule 12(b)(6), the third a motion to strike a proposed class
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`definition, and the last a motion to stay further proceedings in this case. (Id.) For the
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`following reasons, the motion to transfer will be granted and the other motions will be
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`denied without prejudice, to be refiled in the Eastern District of Virginia.
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`I.
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`Factual Background
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`BACKGROUND
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`The facts as alleged in Plaintiff Lisa Pierucci’s complaint are as follows.
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`Homes.com is a “real estate website that among other things generates leads for listing for
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`real estate agents.” (Doc. 1 ¶ 5.) It markets these leads through the use of “unsolicited,
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`autodialed text messages.” (Id. ¶ 6.)
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`On February 27, 2020 Pierucci, a resident of Lake Havasu City, Arizona, received
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`Case 2:20-cv-00455-RAJ-RJK Document 37 Filed 09/10/20 Page 2 of 12 PageID# 249
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`one such text message. (Id. ¶¶ 7-8.) The message purported to be from “Dion with
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`Homes.com” and stated that Homes.com was “looking for an agent to pick up openings we
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`have in your county and surrounding areas to work every pre-screened buyer/seller lead
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`coming through.” (Id. ¶ 7.) The text further offered “30% OFF on ANY zip codes, to help
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`agents get a head start on preparing for the upcoming season” and asked “[w]hat zip
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`codes/areas” Pierucci liked to target. (Id.)
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`According to Pierucci, that text message “was a nuisance that aggravated [her],
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`wasted her time, invaded her privacy, diminished the value of the cellular services she paid
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`for, caused her to temporarily lose the use and enjoyment of her phone, and caused wear
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`and tear to her phone’s data, memory, software, hardware, and battery components.” (Id.
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`¶ 9.)
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`II.
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`Procedural History
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`On March 4, 2020, Pierucci initiated this action. (Doc. 1.) In addition to recounting
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`the facts described above, Pierucci alleged that Homes.com had “utilized an automatic
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`telephone dialing system [‘ATDS’]; hardware or software with the capacity to store or
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`produce cellular telephone number[s] to be called, using a random or sequential number
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`generator, or to dial telephone numbers from preloaded lists.” (Id. ¶ 10.) This, she alleged,
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`was in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”).
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`(Id. ¶ 3.) She further alleged, upon information and belief, that “substantively identical
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`unsolicited text messages” had been sent “en masse to the cellular telephone numbers of
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`thousands of customers.” (Id. ¶ 11.) Thus, Pierucci brought a single claim under the TCPA
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`based on the use of ATDSs and sought to represent a class composed of:
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`All persons who, on or after four years prior to the filing of the initial
`complaint in this action through the date of class certification (1) were sent a
`text message to their cellular telephone number by or on behalf of
`Homes.com, (2) using a dialing system substantially similar . . . as used to
`text message Plaintiff, (3) for a substantially similar reason as Homes.com
`texted Plaintiff.
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`(Id. ¶¶ 13, 21-24.)
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`Pierucci originally brought this action against, and served a summons on, Dominion
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`Case 2:20-cv-00455-RAJ-RJK Document 37 Filed 09/10/20 Page 3 of 12 PageID# 250
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`Enterprises, Incorporated (“Dominion”), which Pierucci believed did business as
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`Homes.com. (Id. at 2; Docs. 5, 7.) Dominion, in turn, informed Pierucci that it didn’t do
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`business as Homes.com and that the entity Pierucci really wanted to sue was Homes.com,
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`Inc. (Doc. 10 ¶ 3.) Pierucci, Dominion, and Homes.com then filed a joint motion to
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`substitute Homes.com as the defendant in this case and to dismiss Dominion. (Id.) That
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`motion was granted. (Doc. 11).
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`On June 8, 2020, Homes.com filed four motions, all of which Pierucci opposes. The
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`first is a motion to “transfer venue on the grounds of forum non conveniens” pursuant to
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`28 U.S.C. § 1404(a). (Doc. 13.) In it, Homes.com argues that transferring this case to the
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`Eastern District of Virginia will best “serve the convenience of the parties, witnesses, and
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`the interests of justice” because Virginia is “the center of gravity in this case” and “the bulk
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`of the conduct challenged took place” there. (Id. at 1-2.)
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`The second motion is a Rule 12(b)(6) motion to dismiss. (Doc. 14.) In it,
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`Homes.com argues (1) the complaint’s allegations are insufficient to state a claim; (2) the
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`TCPA is unconstitutional because it favors some forms of speech over others in violation
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`of the First Amendment; and (3) because Pierucci seeks to represent a nationwide class,
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`the different definitions of ATDSs utilized by different Circuits renders the TCPA
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`unconstitutionally vague. (Id.)
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`The third motion is a motion to strike Pierucci’s class definition. (Doc. 15.) In it,
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`Homes.com argues that Pierucci’s class definition is “facially deficient” because it uses
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`“imprecise, vague, and subjective criteria.” (Id. at 1.) Homes.com further argues that
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`Pierucci “should not be permitted to pursue a class action on behalf of non-Arizona class
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`members, whose claims have no connection whatsoever to Arizona.” (Id. at 1-2.)
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`The final motion was a motion to stay proceedings. (Doc. 16.) That motion sought
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`a stay pending the Supreme Court’s then-unreleased decision in Barr v. Am. Ass’n of
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`Political Consultants, 140 S. Ct. 2335 (2020), which would determine the constitutionality
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`of the TCPA. (Doc. 16.) But after Barr was decided, Homes.com withdrew its original
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`motion to stay (Doc. 26) and then filed a new motion to stay, which seeks a stay pending
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`Case 2:20-cv-00455-RAJ-RJK Document 37 Filed 09/10/20 Page 4 of 12 PageID# 251
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`the Supreme Court’s decision in Facebook, Inc. v. Duguid, No. 19-511, because that case
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`will determine the definition of ATDSs. (Doc. 28.)
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`On June 8, 2020, in addition to its flurry of motions, Homes.com filed a notice
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`pursuant to Rule 5.1(a) that it is challenging the constitutionality of a federal statute. (Doc.
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`17.) On July 29, 2020, the United States acknowledged the notice and requested additional
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`time to determine whether it wanted to intervene. (Doc. 30.) The Court granted that
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`request, giving the United States until October 6, 2020 to make a decision. (Doc. 32.)
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`ANALYSIS
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`The Court is faced with four fully briefed motions. Because the motion to transfer
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`could obviate the need to address the other motions, and because the other motions don’t
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`challenge the existence of personal or subject matter jurisdiction, the Court, in its
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`discretion, will begin with the transfer request. Cf. Sinochem Int’l Co. Ltd. v. Malaysia
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`Int’l Shipping Corp., 549 U.S. 422, 425 (2007) (“We hold that a district court has discretion
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`to respond at once to a defendant’s forum non conveniens plea, and need not take up first
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`any other threshold objection.”); Smith v. Gen. Info. Solutions, Inc., 2018 WL 4019463, *2
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`(S.D. Ohio 2018) (“Contrary to Defendant’s argument, the Court finds it appropriate and
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`in the interest of judicial economy to consider first Plaintiff’s Motion to Transfer Venue.”).
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`I.
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`Motion To Transfer
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`As a threshold matter, although Homes.com has styled its motion as a request
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`“pursuant to 28 U.S.C. § 1404(a) to transfer venue on the grounds of forum non
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`conveniens” (id. at 1), this is something of a misnomer. Transfer under § 1404(a) and
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`forum non conveniens are distinct concepts. The latter applies only when the alternative
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`forum is not a “sister federal court”—most commonly, when the alternative forum is
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`another country’s judicial system. Sinochem, 549 U.S. at 430 (“The common-law doctrine
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`of forum non conveniens has continuing application [in federal courts] only in cases where
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`the alternative forum is abroad . . . . For the federal court system, Congress has . . . provided
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`for transfer, rather than dismissal, when a sister federal court is the more convenient place
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`for trial of the action.”) (quotation and internal citation omitted). See also Am. Dredging
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`Case 2:20-cv-00455-RAJ-RJK Document 37 Filed 09/10/20 Page 5 of 12 PageID# 252
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`Co. v. Miller, 510 U.S. 443, 449 n.2 (1994) (“[T]he federal doctrine of forum non
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`conveniens has continuing application only in cases where the alternative forum is
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`abroad.”); Galvin v. McCarthy, 545 F. Supp. 2d 1176, 1182 (D. Colo. 2008) (denying
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`motion to dismiss for forum non conveniens because “the Supreme Court has . . . made
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`clear that the doctrine survives only as it relates to dismissal to a foreign forum” and
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`“Texas, contrary to the wishes of some of its citizens, is not at this point a foreign forum”).
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`Nevertheless, Homes.com brought its motion under § 1404(a) and its intent—to transfer
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`the case to a more convenient forum—aligns with the purpose of that statute. Accordingly,
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`the Court will consider Homes.com’s motion under § 1404(a). Cf. Galvin, 545 F. Supp.
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`2d at 1181 (“I deny Spirit’s motion to dismiss on forum non conveniens grounds.
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`Nonetheless, I consider Spirit’s arguments under the relevant federal statute.”).
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`Section 1404(a) allows a district court to “transfer any civil action to any other
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`district or division where it might have been brought” if a transfer would promote “the
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`convenience of parties and witnesses [and] the interest of justice.” Section 1404(a) thus
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`vests courts with the discretion “to adjudicate motions for transfer according to an
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`individualized, case-by-case consideration of convenience and fairness.” Stewart Org.,
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`Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (internal quotation marks omitted). Because
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`§ 1404(a) governs transfer only in a properly venued case, the first step is to determine
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`whether the transferor and transferee courts are proper venues. LaGuardia v. Designer
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`Brands, Inc., 2020 WL 2463385, *6 (S.D. Cal. 2020). “After it is established that venue
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`is proper in both districts, the court must then weigh multiple factors to determine whether
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`transfer is appropriate.” Id. at *7.
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`A. Whether Venue Is Proper In Both Districts
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`Neither party disputes that venue is proper in both the District of Arizona and the
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`Eastern District of Virginia. The Court sees no reason to disagree. Venue is proper “in a
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`judicial district in which any defendant resides.” 28 U.S.C. § 1391(b)(1). Homes.com
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`maintains its principal place of business in Norfolk, Virginia, which is in the Eastern
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`District of Virginia. (Doc. 13-1 ¶ 5.) Because “an entity with the capacity to sue and be
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`Case 2:20-cv-00455-RAJ-RJK Document 37 Filed 09/10/20 Page 6 of 12 PageID# 253
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`sued” is “deemed to reside . . . in any judicial district in which . . . [it] is subject to the
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`court’s personal jurisdiction,” venue is proper in the Eastern District of Virginia. 28 U.S.C
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`§ 1391(c)(2).
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`Venue is also proper in “a judicial district in which a substantial part of the events
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`or omissions giving rise to the claim occurred.” Id. § 1391(b)(2). For purposes of TCPA
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`claims, a “substantial part” of the events occur where the plaintiff received the purportedly
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`prohibited communication. See, e.g., Schick v. Resolute Bank, 2019 WL 8014435, *1 (D.
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`Ariz. 2019); Sapan v. Dynamic Network Factory, Inc., 2013 WL 12094829, *3 (S.D. Cal.
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`2013). Pierucci alleges she received the offending text message in Lake Havasu City,
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`Arizona, which is in the District of Arizona. Accordingly, venue is appropriate in this
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`District as well.
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`B. Whether Transfer Is Appropriate
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`Having established that venue is proper in both the District of Arizona and the
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`Eastern District of Virginia, the Court next “weigh[s] multiple factors in its determination
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`whether transfer is appropriate in [this] particular case.” Jones v. GNC Franchising, Inc.¸
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`211 F.3d 495, 498 (9th Cir. 2000). There are eight factors that courts frequently consider:
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`(1) plaintiff’s choice of forum, (2) convenience of the parties, (3)
`convenience of the witnesses, (4) ease of access to the evidence, (5)
`familiarity of each forum with the applicable law, (6) feasibility of
`consolidation with other claims, (7) any local interest in the controversy, and
`(8) the relative court congestion and time of trial in each forum.
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`Vu v. Ortho-McNeil Pharm., Inc., 602 F. Supp. 2d 1151, 1156 (N.D. Cal. 2009). “This list
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`is non-exclusive, and courts may consider other factors, or only those factors which are
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`pertinent to the case at hand.” Kempton v. Life for Relief and Dev. Inc., 2019 WL 5188750,
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`*2 (D. Ariz. 2019). See also Jones, 211 F.3d at 498-99 (providing a similar list of factors
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`and noting “that the relevant public policy of the forum state” may be a relevant
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`consideration). Because the parties point to no other ongoing litigation, the Court will
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`consider all but the sixth factor. Cf. Martin v. Global Tel*Link Corp., 2015 WL 2124379,
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`*4 (N.D. Cal. 2015) (declining to consider a factor the parties had conceded was neutral).
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`Case 2:20-cv-00455-RAJ-RJK Document 37 Filed 09/10/20 Page 7 of 12 PageID# 254
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`1.
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`Plaintiff’s Choice Of Forum
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`“For purposes of a section 1404(a) analysis, the plaintiff’s choice of forum always
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`weighs against transfer.” Martin, 2015 WL 2124379 at *4. In general, “a plaintiff’s choice
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`of forum is afforded substantial weight.” Williams v. Bowman, 157 F. Supp. 2d 1103, 1106
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`(N.D. Cal. 2001). However, that general rule falls away “when an individual . . . represents
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`a class,” in which case the plaintiff’s choice of forum is “given less weight.” Lou v.
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`Belzberg, 834 F. 2d 730, 739 (9th Cir. 1987). This is especially true where “the operative
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`facts have not occurred within the forum and the forum has no interest in the parties or
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`subject matter.” Id. Further, where there is evidence of forum shopping, “plaintiff’s choice
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`will be accorded little deference.” Williams, 157 F. Supp. 2d at 1106; Kempton, 2019 WL
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`5188750 at *2-3.
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`Here, Pierucci’s choice of forum is entitled to some deference, but not the
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`“substantial weight” it would be accorded in most cases. The reason is simple—Pierucci
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`seeks to represent a class. Moreover, most of the operative facts—where Homes.com made
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`its marketing decisions, where the equipment used to generate the text message in question
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`is kept, and from where the text message was sent—occurred in Virginia, not Arizona.
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`Kissick v. Am. Residential Servs., LLC, 2019 WL 6434639, *3 (C.D. Cal. 2019) (“Contrary
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`to Plaintiff’s contention that the only operative facts are that he ‘resides in this District and
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`received the call(s) at issue in this District,’ this action will necessarily involve numerous
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`other operative facts about [defendant’s] business practices and decisions behind the call
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`that was alleged to be in violation of the TCPA, whether an automated dialer was used,
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`etc.”). See also LaGuardia, 2020 WL 2463385 at *7. This further weakens the connection
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`to Arizona and further reduces the weight afforded to Pierucci’s choice of forum. Lou, 834
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`F.3d at 739.
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`On the other hand, there is no evidence of forum shopping—Pierucci resides in this
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`District and has, thus far, sought to litigate her claim only in this District. Compare
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`Kempton, 2019 WL 5188750 at *3 (discrediting plaintiff’s choice of venue because the
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`case had been filed to avoid adverse result in a different venue); Martin, 2015 WL 2124379
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`Case 2:20-cv-00455-RAJ-RJK Document 37 Filed 09/10/20 Page 8 of 12 PageID# 255
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`at *4 (discrediting plaintiff’s choice of venue because case was originally filed in a different
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`venue); Fabus Corp. v. Asiana Exp. Corp., 2001 WL 253185, *1 (N.D. Cal. 2001) (“The
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`degree to which courts defer to the plaintiff’s chosen venue is substantially reduced where
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`the plaintiff’s choice is not its residence.”).
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`2.
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`Convenience of Parties
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`The Court next considers the relative convenience to the parties of litigating in
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`Virginia versus Arizona. This factor doesn’t weigh in favor of a transfer if “[t]he transfer
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`would merely shift rather than eliminate the inconvenience.” Decker Coal Co. v.
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`Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986). Instead, it must make the
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`litigation more convenient overall, even if that comes at the expense of slightly increasing
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`the inconvenience to one party. Cf. Kissick, 2019 WL 6434639 at *4.
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`This factor weighs in favor of transfer. Litigating this case in Virginia is obviously
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`more convenient for Homes.com. It is headquartered there, and, as noted, many of the
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`operative facts in this case occurred in Virginia. Kissick, 2019 WL 6434639 at *3-4.
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`Moreover, the Eastern District of Virginia will be more able to compel the testimony of
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`any former employee unwilling to testify, an option likely unavailable in this district. Mina
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`v. Red Robin Int’l, Inc., 2020 WL 4037163, *3 (C.D. Cal. 2020); Jones, 211 F.3d at 498-
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`99 (“[T]he court may consider . . . the availability of compulsory process to compel
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`attendance of unwilling non-party witnesses.”); Fed. R. Civ. Proc. 45(c)(1) (“A subpoena
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`may command a person to attend a trial, hearing, or deposition . . . within 100 miles of
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`where the person resides, is employed, or regularly transacts business in person.”).
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`On the other hand, Pierucci would suffer only modest inconvenience if forced to
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`litigate in Virginia. It’s true that litigating this action in Virginia will be less convenient to
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`her than litigating in her home state. But the fact this is a class action mitigates that
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`concern. “TCPA class actions are normally attorney driven and require limited
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`participation from the named plaintiff for their individual claims or as class
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`representatives.” LaGuardia, 2020 WL 2463385 at *8. Additionally, “potential class
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`plaintiffs will come from all over the country,” which means that the convenience to
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`Case 2:20-cv-00455-RAJ-RJK Document 37 Filed 09/10/20 Page 9 of 12 PageID# 256
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`Pierucci is “accorded less weight.” Mina, 2020 WL 4037163 at *3.
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`Taken together, the relatively small inconvenience to Pierucci is outweighed by the
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`greater convenience that will come from litigating in Virginia, including access to
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`unwilling witnesses. Thus, this is not a case of “merely shift[ing] the inconvenience” from
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`one party to another, but a shift that will promote the efficient resolution of the entire action.
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`3.
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`Convenience Of Witnesses
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`“The convenience of witnesses is often the most important factor considered by the
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`court when deciding a motion to transfer for convenience.” Hawkins v. Gerber Prods. Co.,
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`924 F. Supp. 2d 1208, 1215 (S.D. Cal. 2013) (internal quotation marks omitted). However,
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`this factor is primarily concerned with non-party witnesses—“convenience of a litigant’s
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`employee witnesses is entitled to little weight because they can be compelled by their
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`employers to testify regardless of venue.” Kempton, 2019 WL 5188750 at *3.
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`The largest concentration of witnesses relevant to this case is in Virginia, where “the
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`largest number of Homes.com employees reside.” (Doc. 13-1 ¶ 11.) In particular, the
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`individuals knowledgeable about Homes.com’s marketing and texting operations, as well
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`as the individual who sent the text message to Pierucci, are all located in Virginia. (Id.
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`¶¶ 7-9.) Also, although Pierucci seeks to represent a nationwide class, she identifies no
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`Arizona witnesses other than herself. (Doc. 21 at 5-6.) Thus, Virginia is “more convenient
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`for everyone other than” Pierucci. LaGuardia, 2020 WL 2463385 at *7.
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`That said, Homes.com has not identified any third-party witnesses who would be
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`inconvenienced by litigating in Arizona. Hawkins, 924 F. Supp. 2d at 1215-16. As such,
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`this factor only weighs “slightly in favor of transfer.” LaGuardia, 2020 WL 2463385 at
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`*7; Kissick, 2019 WL 6434639 at *5 (“[O]ther district courts have frequently found it more
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`convenient and preferable for witnesses to testify in person at depositions and trial.”). See
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`also Mina, 2020 WL 4037163 at *3. But see Kempton, 2019 WL 5188750 at *3 (“Here,
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`neither [party has] identified any third-party witnesses who are likely to testify. Therefore,
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`this factor is neutral.”); Hawkins, 924 F. Supp. 2d at 1215-16 (finding this factor neutral
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`where movant didn’t identify any relevant third-party witnesses).
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`Case 2:20-cv-00455-RAJ-RJK Document 37 Filed 09/10/20 Page 10 of 12 PageID# 257
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`4.
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`Ease Of Access To Evidence
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`Generally, this factor favors whichever venue is home to the bulk of the
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`documentary evidence and witnesses. Kissick, 2019 WL 6434639 at *6; Kempton, 2019
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`WL 5188750 at *4; Hawkins, 924 F. Supp. 2d at 1216. That said, “this factor no longer
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`carries much weight in the transfer analysis given that technology has made it easier for
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`documents to be transferred to different locations.” Kissick, 2019 WL 6434639 at *6.
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`Here, Homes.com has failed to identify any specific documentary evidence not
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`stored in an electronic format. When a party fails to “suppl[y] the court with any
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`information regarding what documents may be relied upon that are only available in hard
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`copy or could not be produced electronically,” this factor is neutral. LaGuardia, 2020 WL
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`2463385 at *8; Martin, 2015 WL 2124379 at *5 (“[T]his factor [is] neutral. The case is
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`proceeding as a putative nationwide class action. The defendant is headquartered out of
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`state and its relevant records may be in electronic form. The plaintiff’s evidence . . . will
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`likely be de minimis.”). But see Kissick, 2019 WL 6434639 at *6 (“[T]his factor marginally
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`weighs in favor of transfer.”).
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`5.
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`Familiarity Of Each Forum With Applicable Law
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`Transfer is favored where the receiving court is more familiar with the law
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`underlying the plaintiff’s claim. But as the parties agree, because “the TCPA is a federal
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`statute,” both this District and the Eastern District of Virginia are equally familiar with the
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`law. Kempton, 2019 WL 5188750 at *3. As such, this factor is neutral. Id.; LaGuardia,
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`2020 WL 2463385 at *8; Kissick, 2019 WL 6434639 at *5.
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`6.
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`Local Interest In Controversy
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`The venue with the greater local interest is the venue favored in the transfer analysis.
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`Williams, 157 F. Supp. 2d at 1109-10. Where the case is not “particular[ly] localized,” this
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`factor favors transfer to the venue where the “crux” of the underlying events took place.
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`Hawkins, 924 F. Supp. 2d at 1216-17.
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`The conflict here is between Arizona’s interest in protecting its own citizen
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`(Pierucci) and Virginia’s interest in holding a local alleged wrongdoer (Homes.com)
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`Case 2:20-cv-00455-RAJ-RJK Document 37 Filed 09/10/20 Page 11 of 12 PageID# 258
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`responsible. The crux of this case, as alleged, comes down to wrongdoing emanating from
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`Virginia and reaching nationwide. Although Pierucci felt the harm from the alleged
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`wrongdoing in Arizona, the class-wide nature of her allegations makes the real geographic
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`center of gravity in this case the place where the harm originated. In other words, the
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`“primary focus” of this action is the use of ATDSs to market Homes.com’s services to a
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`nationwide audience. In these circumstances, the interest is not “particular[ly] localized”
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`and venue is more appropriate where the crux of the case—where the marketing strategy
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`was developed and the ATDSs were utilized—occurred. Id. Accordingly, this factor
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`favors transfer. See also Mina, 2020 WL 4037163 at *4 (“[A] TCPA class action making
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`similar allegations against Defendants was recently transferred to Colorado. As in that
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`case, the Court similarly finds that Colorado has a significant local interest in having a
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`dispute involving a company headquartered in its state decided at home.”).
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`7.
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`Relative Court Congestion
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`Finally, the Court considers where the case would likely proceed most quickly.
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`Martin, 2015 WL 2124379 at *6.
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`According to information available from the Administrative Office of the U.S.
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`Courts (on which both parties rely), the average time to disposition of a civil case in the
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`Eastern District of Virginia—which is sometimes referred to “as the ‘rocket docket’
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`because of its reputation for getting cases to trial quickly,” Parrish v. Nat. Football League
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`Players Inc., 2007 WL 1624601, *8 (C.D. Cal. 2007)—is 5.7 months.1 The average time
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`to disposition of a civil case in this District is 12.5 months. Halving the time to disposition
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`weighs in favor of transfer.
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`8.
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`Conclusion
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`Having balanced the relevant factors, the Court concludes that a transfer to the
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`Eastern District of Virginia is warranted. The only factor weighing against transfer is
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`Pierucci’s choice of forum, but because this is a class action, that choice is only entitled to
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`1
`Federal Judicial Caseload Statistics, Table C-5-U.S. District Courts-Civil Federal
`Judicial Statistics (March 31, 2020), https://www.uscourts.gov/statistics/table/c-5/federal-
`judicial-caseload-statistics/2020/03/31.
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`Case 2:20-cv-00455-RAJ-RJK Document 37 Filed 09/10/20 Page 12 of 12 PageID# 259
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`modest weight. On the other hand, court congestion and Virginia’s interest in this case
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`strongly favor transfer and the convenience to the parties and witnesses both add to that
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`weight. The rest of the factors are neutral or slightly weigh in favor of transfer. Taken
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`together, this is not a particularly close call.
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`II.
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`Other Pending Motions
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`Also pending before the Court are a Rule 12(b)(6) motion to dismiss, a motion to
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`strike Pierucci’s class definition, and a motion to stay proceedings. (Docs. 14, 15, 28.)
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`Because the Court has granted Homes.com’s motion to transfer, it denies these motions
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`without prejudice so they can be refiled in the Eastern District of Virginia. Rogovsky
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`Enter., Inc. v. Masterbran Cabinets, Inc., 88 F. Supp. 3d 1034, 1049 (D. Minn. 2015)
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`(“Because this Court granted Defendant’s Motion to Transfer, its Motion to Stay is denied
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`as moot.”); Papatheodou v. Clark, 2008 WL 11391375, *5 (N.D. Cal. 2008) (“Since the
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`Court has granted Defendant’s NCB’s Motion to Transfer the case . . . [t]he Court denies
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`Defendant NCB’s Motion to Dismiss for Failure to State a Claim without prejudice to be
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`renewed in the [new venue].”). This has the added benefit of allowing the parties to update
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`their briefing in light of developments in Barr and Facebook and to invoke the legal
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`standards applicable in the Fourth Circuit.
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`Accordingly, IT IS ORDERED that:
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`(1) Homes.com’s motion to transfer (Doc. 13) is granted.
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`(2) Homes.com’s motion to dismiss (Doc. 14) is denied without prejudice.
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`(3) Homes.com’s motion to strike (Doc. 15) is denied without prejudice.
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`(4) Homes.com’s motion to stay (Doc. 28) is denied without prejudice.
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`(5)
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`This case shall be transferred to the Eastern District of Virginia.
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`Dated this 10th day of September, 2020.
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