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792864.2 Case No. 3:17-cv-00790-MEJ

NOTICE OF MOTION AND MOTION TO DISMISS FOR IMPROPER VENUE

BROWNE GEORGE ROSS LLP

MICHAEL A. BOWSE (State Bar No. 189659)

mbowse@bgrfirm.com

2121 Avenue of the Stars, Suite 2800

Los Angeles, California 90067

Telephone: (310) 274-7100

Facsimile: (310) 275-5697

Attorneys for Defendant iCare Credit, LLC d/b/a

iCare Financial

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION

HUNG V. VU, D.D.S. A PROFESSIONAL

DENTAL CORP. d/b/a Vu Orthodontics, on

behalf of itself and all persons and entities

similarly situated,,

Plaintiff,

vs.

I CARE CREDIT, LLC, d/b/a/ iCare

Financial; and DOES 1 - 10, inclusive,

Defendant.

Case No. 3:17-cv-00790-WHA

The Hon. William H. Alsup

NOTICE OF MOTION AND MOTION TO

DISMISS FOR IMPROPER VENUE OR,

IN THE ALTERNATIVE, TO TRANSFER

TO A PROPER VENUE;

MEMORANDUM OF POINTS AND

AUTHORITIES

Date: June 22, 2017

Time: 8:00 a.m.

Crtrm: 8 – 19th Floor

Judge: Hon. William H. Alsup

Trial Date: None Set

Case 3:17-cv-00790-WHA Document 17 Filed 05/11/17 Page 1 of 6
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792864.2

-2- Case No. 3:17-cv-00790-MEJ

NOTICE OF MOTION AND MOTION TO DISMISS FOR IMPROPER VENUE

TO THE CLERK OF COURT, ALL PARTIES AND THEIR COUNSEL OF RECORD:

PLEASE TAKE NOTICE THAT, on June 22, 2017, at 8:00 a.m., or as soon thereafter as

the matter may be heard, in Courtroom 8 of the above-entitled court, located at 450 Golden Gate

Avenue, San Francisco, CA 94102, defendant I Care Credit, LLC (“I Care”) will and hereby does

move this Court pursuant to Fed. R. Civ. Proc. 12(b)(3) to dismiss this action as filed in the

improper venue or, in the alternative, to transfer this action to a proper venue.

Venue on the United States District Court for the Northern District of California is

improper because (1) I Care is not a resident of the State of California and does not reside in the

Northern District, (2) none of the events or omissions giving rise to plaintiff’s claim occurred in

the Northern District of California, and (3) there is at least one other district in which an action

could be brought and/or I Care is not subject to this Court’s personal jurisdiction.

This Motion will be based on this Notice of Motion, the attached Memorandum of Points

and Authorities, and all papers and pleadings on file in this action.

DATED: May 11, 2017 BROWNE GEORGE ROSS LLP

Michael A. Bowse

By: s/ Michael A. Bowse

Michael A. Bowse

Attorneys for Defendant iCare Credit, LLC d/b/a iCare

Financial

Case 3:17-cv-00790-WHA Document 17 Filed 05/11/17 Page 2 of 6
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792864.2

-3- Case No. 3:17-cv-00790-MEJ

NOTICE OF MOTION AND MOTION TO DISMISS FOR IMPROPER VENUE

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION AND RELEVANT FACTS

This action cannot proceed in this District because there is no basis for venue here. The

events upon which Plaintiff’s claims are based did not occur here. Defendant I Care Credit LLC

(“I Care”) does not reside here. The complaint alleges no facts indicating that there is no other

district in which this action could be brought. Because these are the only permissible grounds

upon which this action could have been filed here, the action must be dismissed or transferred.

Plaintiffs’ claims are based upon its alleged receipt of unsolicited faxes, which Plaintiff

claims violated the Telephone Consumer Protection Act, 47 U.S.C. §227. But Plaintiff is located

in Fountain Valley, California, which is in the Central District of California, not this District.1

Thus, the events giving rise to Plaintiff’s claim – its receipt of faxes – occurred in the Central

District, not this District, making venue improper here.

Plaintiff attempts to avoid this problem by alleging that venue in this District is proper

because members of the proposed class received faxes here. See Complaint ¶8 (“Venue in this

judicial district is proper ... because a substantial number of the members of the class alleged

herein received facsimile transmissions from Defendants ... within this District....”) But venue in

a proposed class action must be based on the events giving rise to the named plaintiff’s claims, not

the claims of absent class members. As a result, Plaintiff’s stated ground for venue in this District

is invalid.

Since Plaintiff alleges no other basis for venue in this District and since the facts alleged in

the Complaint contradict all other grounds for venue here, the Complaint must be dismissed for

improper venue or, alternatively, transferred to a proper venue.

II. STANDARD

Federal Rule of Civil Procedure Rule 12(b)(3) allows a defendant, before answering the

complaint, to move to dismiss for improper venue. On such a motion, it is the plaintiff who bears

1

I Care requests that the Court take judicial notice of the fact that Fountain Valley, California is

located in the Central District of California. See Regents of Univ. of California v. Kohne, 166

F.R.D. 463, 465 (S.D. Cal. 1996) (taking judicial notice of geographic location of city).

Case 3:17-cv-00790-WHA Document 17 Filed 05/11/17 Page 3 of 6
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792864.2

-4- Case No. 3:17-cv-00790-MEJ

NOTICE OF MOTION AND MOTION TO DISMISS FOR IMPROPER VENUE

the burden of proving that the venue is proper. Piedmont Label Co. v. Sun Garden Packing Co.,

598 F.2d 491, 496 (9th Cir. 1979); Kaia Foods, Inc. v. Bellafiore, 70 F. Supp. 3d 1178, 1183

(N.D. Cal. 2014). If the plaintiff does not satisfy its burden, the court must either dismiss the

action or transfer it to the venue in which it belongs. 28 U.S.C. § 1406(a).

The Court, in resolving a motion under Rule 12(b)(3), may consider facts outside the

pleadings. Argueta v. Banco Mexicano, S.A., 87 F.3d 320, 324 (9th Cir. 1996); Morgan Tire of

Sac., Inc. v. Goodyear Tire & Rubber Co., 60 F. Supp. 3d 1109, 1113 (E.D. Cal. 2014).

III. ARGUMENT

A. Venue is Improper in the Northern District

Venue is proper (1) in a “district in which any defendant resides, if all defendants are

residents of the State in which the district is located”; (2) in a “district in which a substantial part

of the events or omissions giving rise to the claim occurred”; or (3) “if there is no district in which

an action may otherwise be brought,” then a “district in which any defendant is subject to the

court’s personal jurisdiction.” 28 U.S.C. § 1391(b).

In its complaint, Plaintiff attempts to invoke the second of these grounds to assert that

venue is proper in this District. According to Plaintiff, venue is proper here because this is a

proposed class action and members of the proposed class who are located here received faxes from

I Care within this District. Complaint ¶8 (“Venue in this Judicial District is proper ... because a

substantial number of the members of the class alleged herein received facsimile transmissions

from Defendants ... within this District”). Plaintiff is wrong. That is not a proper basis for venue

in this District.

In a class action, only the events giving rise to the named plaintiff’s claims are relevant to

determine venue. In other words, in order for venue to be proper in a particular district, a

substantial part of the events of omissions that give rise to the named plaintiff’s own claims must

have occurred in that district. See Ambriz v. Coca Cola Company, No. 13–cv–03539-JST, 2014

WL 296159, *5-6 (N.D. Cal. Jan. 27, 2014); AM Trust v. UBS AG, 78 F. Supp. 3d 977, 987 (N.D.

Cal. 2015) (claims of unnamed class members irrelevant to venue requirements); see also Johnson

v. Law, 19 F. Supp. 3d 1004, 1009 (S.D. Cal. 2014) (“determination of proper venue is generally

Case 3:17-cv-00790-WHA Document 17 Filed 05/11/17 Page 4 of 6
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792864.2

-5- Case No. 3:17-cv-00790-MEJ

NOTICE OF MOTION AND MOTION TO DISMISS FOR IMPROPER VENUE

based on the named plaintiff, not unnamed or absent putative class members.”).

Given the nature of Plaintiff’s claims – all of which are based on Plaintiffs’ alleged receipt

of unsolicited faxes (see Complaint ¶¶19-22) – and given that I Care is located in the Northern

District of Georgia2(see Complaint ¶5), it is clearly not the case that a substantial part of the

events giving rise to Plaintiff’s claims occurred in this District. Instead, those events occurred

either in the Central District of California (where Plaintiff allegedly received the faxes) or in the

Northern District of Georgia (where I Care is located). As a result, while venue may be proper in

one of those districts, it is clearly not proper in this District.3

Because venue in this District is improper, this action should be dismissed or, at a

minimum, transferred to a different district (likely the Central District of California, where

Plaintiff allegedly received the faxes upon which its claims are based).

B. Even if Venue Were Proper Here, the Action Should Still be Transferred

Even if venue were proper in the Northern District, which it is not, the Court may, “[f]or

the convenience of parties and witnesses, in the interest of justice, . . . transfer [the] action to any

other district or division where it might have been brought[.]” 28 U.S.C. § 1404(a). In deciding

whether to transfer the action, the Court should consider: “(1) the location where the relevant

agreements were negotiated and executed, (2) the state that is most familiar with the governing

law, (3) the plaintiff’s choice of forum, (4) the respective parties’ contacts with the forum, (5) the

contacts relating to the plaintiff’s cause of action in the chosen forum, (6) the differences in the

costs of litigation in the two forums, (7) the availability of compulsory process to compel

attendance of unwilling non-party witnesses, and (8) the ease of access to sources of proof.” Jones

v. GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 2000).

2

I Care requests that the Court take judicial notice of the fact that Kennesaw, Georgia is located in

the Northern District of Georgia. See Regents of Univ. of California, 166 F.R.D. at 465.

3 Venue is also not proper here under either of the other grounds set forth in 28 U.S.C. § 1391(b).

I Care does not reside in this District. It is a resident of the Norther District of Georgia.

Complaint ¶5 (alleging that I Care is a Georgia corporation with its principal place of business in

Kennessaw, Georgia). Nor does the Complaint allege any facts suggesting that “there is no district

in which an action may otherwise be brought”. 28 U.S.C. §1391(b).

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792864.2

-6- Case No. 3:17-cv-00790-MEJ

NOTICE OF MOTION AND MOTION TO DISMISS FOR IMPROPER VENUE

These factors favor a transfer to the Central District of California. Both Plaintiff and I

Care lack any contacts with the Northern District of California. Because Plaintiff resides in the

Central District of California and I Care resides in Georgia, both parties would suffer increased

litigation costs to compensate for travel to and from the Northern District of California.

As such, even if the Court were to determine that this venue is a proper one for this action,

I Care requests the Court transfer the case to the Central District of California.

IV. CONCLUSION

For these reasons, this motion should be granted. This action should either be dismissed

or, at a minimum, transferred to the Central District of California or some other district where

venue is proper.

DATED: May 11, 2017 BROWNE GEORGE ROSS LLP

Michael A. Bowse

By: s/ Michael A. Bowse

Michael A. Bowse

Attorneys for Defendant iCare Credit, LLC d/b/a iCare

Financial

Case 3:17-cv-00790-WHA Document 17 Filed 05/11/17 Page 6 of 6