In class action litigation – particularly TCPA class actions – procedural fights can be more important than substantive merits. And a recent decision from the Eastern District of California highlighted just how critical those fights can be, and the difference retaining experienced class litigators can make.

In federal court, venue is generally proper in either the judicial district where a defendant resides or the judicial district in which a substantial part of the events giving rise to the claim occurred. Thus, in Tuso v. National Health Agents, 2021 U.S. Dist. LEXIS 40088 (E.D. Cal. March 3, 2021), the natural choice of venue was in Florida, where the defendant resided and from where the calls were launched.

But Florida is in the Eleventh Circuit, where the plaintiff would have to deal with Glasser, Salcedo, and Cordoba. So the plaintiff’s Florida-based counsel filed suit in California, where the plaintiff resided.

Venue, though, is determined based on where the defendant resides and where the events giving rise to the claim occurred. Not where the plaintiff resides.

Given the complete lack of facts justifying venue in California, the court had no difficulty determining that venue was improper in the ED Cal. In a significant move, however, the court did not simply transfer the case to Florida. It dismissed it outright.

Dismissal here was the correct procedural move because the defendant filed a motion to dismiss, not a motion to transfer under forum non-conveniens. The dismissal was without prejudice, so it is possible that the plaintiff may refile either in Florida or in California with more robust allegations, but for now at least it is a significant victory for the defense.