District of Arizona Rejects TCPA Plaintiff’s Attempt at Forum Shopping

In Kempton v. Life for Relief & Dev. Inc., plaintiff Ty Kempton initially filed a class action complaint alleging violations of the Telephone Consumer Protection Act in the United States District Court for the Eastern District of Michigan. When faced with the possibility of an adverse ruling, Kempton voluntarily dismissed his claim and refiled the action in a jurisdiction with a more favorable interpretation of the TCPA. The District of Arizona rejected this attempt at forum shopping and transferred the matter back to the original jurisdiction.

Kempton alleges that defendant Life for Relief and Development, a global humanitarian not-for profit organization headquartered in Michigan, violated the TCPA by sending a series of unsolicited text messages to his cell phone between late 2017 and August 2019. This included a holiday greeting in June 2018 stating, “Eid Mubarak to you and your family from Life for Relief and Development.” (“Eid Mubarak” is an Arabic phrase meaning “Holiday Blessings.”)

After Kempton filed suit in October 2018, Life for Relief responded by filing a motion to dismiss, asserting that the complaint failed to allege facts sufficient to show that Life for Relief had used an automatic telephone dialing system as defined by the TCPA. Rather than oppose this motion, Kempton voluntarily dismissed his claim and proceeded to file a nearly identical complaint in the District of Arizona. Life for Relief then filed a motion seeking to have the claim dismissed or transferred back to the Eastern District of Michigan.

Kempton’s attempt to switch jurisdictions appears to have been based on differing interpretations of the TCPA. The Eastern District of Michigan has taken a narrow view of what qualifies as an ATDS. For example, the Court found in Keyes v. Ocwen Loan Servicing, LLC that a telephone system which dials from a set list rather than using a random or sequential number generator does not qualify as an ATDS. In contrast, the Ninth Circuit follows a broader interpretation as illustrated in Marks v. Crunch San Diego, LLC, wherein the Court held that the statutory definition of an ADTS includes “equipment which has the capacity – (1) to store numbers to be called or (2) to produce numbers to be called, using a random or sequential number generator – and to dial such numbers automatically.”

In its ruling on Life for Relief’s motion to transfer, the District of Arizona noted that there generally is a strong presumption in favor of a plaintiff’s choice of forum; however, to guard against forum shopping, courts give this decision less deference in class action cases. Only “minimal deference” is given when the purpose of choosing a particular forum is to escape an unfavorable ruling in another district.

Based on the fact that Kempton did not initially choose to file his complaint in the District of Arizona even though he resides in the state, the Court rejected the argument that this was a more convenient forum for the suit. Also, the Court agreed with Life for Relief’s argument that the purpose of the move was to avoid unfavorable precedent in the original jurisdiction. The Court, therefore, transferred the action back to the Eastern District of Michigan.

This case illustrates the importance of jurisdiction selection and why the issue must be considered at the outset of a case. The split in authority between the Eastern District of Michigan and the District of Arizona likely will be determinative of Kempton’s claim. Selecting the most favorable forum when initiating an action – or, if defending, determining whether there are grounds for transferring the case to a jurisdiction of favorable law – is essential.