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Plaintiff in Holiday Message TCPA Suit Gets Caught Venue Shopping

Happy muslim woman getting flowers as a gift from her relative on muslim celebration

Thu, 11/14/2019 - 13:33

An Arizona District Court granted a motion to have a recent Telephone Consumer Protection Act (TCPA) class action transferred to another district court in a case that emphasizes the important differences between different circuits with regards to TCPA case law and Automatic Telephone Dialing System (ATDS) definitions.

The case—Kempton v. Life for Relief & Dev., No. CV-19-02156-PHX-DJH, 2019 U.S. Dist. LEXIS 178225 (D. Az. Oct. 15, 2019)—involves a plaintiff from Arizona and a defendant from Michigan, with those locations providing the source of intrigue for this case. The defendant, a Muslim nonprofit that provides worldwide humanitarian relief, sent the plaintiff a text message that read, “Eid Mubarak,” an Arabic holiday greeting that translates as “blessed feast’ or “blessed festival.” The plaintiff brought a class action for TCPA violations, seeking millions of dollars, claiming that the “Eid Mubarak” text was sent by an autodialer.

Because this case turns largely on the definition of an ATDS and because different jurisdictions have different precedents regarding that definition, the venue for the case was of paramount importance. Originally, the plaintiff and his attorney filed the suit in the Eastern District of Michigan, where the defendant is located. However, the Eastern District of Michigan has a history of defining an ATDS in terms that are particularly unfavorable to plaintiffs—namely that a device must be able to generate numbers either randomly or sequentially and then dial them to be an ATDS. Presumably the plaintiff realized his mistake, as he accepted a motion to dismiss the case and re-filed in the Arizona District Court.

Technically the plaintiff was able to re-file his suit in his home district because a plaintiff is allowed to file suit in any district where the defendant does business or has minimum contacts. The most relevant reason for the plaintiff’s choice of venue for his re-filed suit has more to do with the fact that the Arizona District Court is a part of the Ninth Circuit. If the Eastern District of Michigan has a history of defining an ATDS in the most narrow terms, the Ninth Circuit has a history of defining an ATDS in the broadest, most plaintiff-friendly terms. The case history in the Ninth Circuit generally defines an ATDS as any device that calls or texts automatically. This jurisdiction would undoubtedly be a more favorable forum for the plaintiff to pursue his case.

The defendant moved to transfer the case back to its original Eastern District of Michigan jurisdiction. Recognizing that the plaintiff had only filed in Arizona to take advantage of the history of broader ATDS definitions, the court accepted this motion and ordered the case to be sent back to the more defendant-friendly grounds of the Michigan District Court.