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O'Shea v. American Solar Solution, Inc.

United States District Court, S.D. California

February 26, 2015

KERRY O'SHEA, on behalf of himself and all others similarly situated, Plaintiff,
v.
AMERICAN SOLAR SOLUTION, INC., Defendant.

ORDER DENYING MOTION TO DISMISS COMPLAINT [ECF No. 14]

M. JAMES LORENZ, District Judge.

Defendant Green Solar Technoloigies, Inc., fka American Solar Solution, Inc., moves to dismiss the complaint for lack of venue under Federal Rule of Civil Procedure 12(b)(3). Plaintiff Kerry O'Shea opposes the motion. Defendant has not filed a reply memorandum. The Court considers this motion on the papers submitted and without oral argument.

I. FACTUAL BACKGROUND

In his complaint, plaintiff alleges that defendant directed mass transmission of unsolicited phone calls to cell phones nationwide in order to promote its business. The phone calls were made, according to plaintiff, in violation of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. §§ 227 et seq.

Plaintiff contends that from December 2013, through the present, he received unsolicited autodialed phone calls on his wireless phone from defendant. Although instructing the defendant to stop calling to place him on the company's internal "Do Not Call List, " and advising defendant that his cellular phone number was on the Federal Do Not Call Registry, plaintiff continued to receive unsolicited phone calls. As a result, plaintiff, and a purported class, filed the action in this district. As noted above, defendant moves to dismiss the complaint for improper venue.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(3) allows a defendant to move to dismiss an action for improper venue. On a Rule 12(b)(3) motion, "the pleadings need not be accepted as true, and the court may consider facts outside of the pleadings, " but the court must draw all reasonable inferences and resolve all factual conflicts in favor of the non-moving party. Murphy v. Schneider Nat'l, Inc., 362 F.3d 1133, 1137 (9th Cir. 2004).

Under 28 U.S.C. § 1391(b),

"[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; or
(3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's persona jurisdiction with respect to such action.

28 U.S.C. § 1391(b).

"For all venue purposes... an entity with the capacity to sue and be sued in its common name under applicable law, whether or not incorporated, shall be deemed to reside, if a defendant, in any judicial district in which such defendant is subject to the court's personal jurisdiction with respect to the civil action in question...." 28 U.S.C. § 1391(c)(2). "Plaintiff has the burden of showing that venue was properly laid in [the district ...


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