Snow v. General Electric Company et al, No. 7:2017cv01961 - Document 44 (N.D. Ala. 2018)
Court Description: MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 8/3/2018. (TLM, )
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Snow v. General Electric Company et al Doc. 44 FILED 2018 Aug-03 PM 03:36 U.S. DISTRICT COURT N.D. OF ALABAMA UNIT ED ST AT ES DIST RICT COURT FOR T HE NORT HERN DIST RICT OF ALABAMA WEST ERN DI VISION MARIAN SNOW ) ) Plaintiff, ) ) v. ) ) GENERAL ELECTRIC COM PANY, ) DELL TECHNOLOGIES, DELL ) INC., DELL EM C, ET. AL., ) ) Defendants. ) 7:17-cv-01961-LSC M EMORANDUM OF OPINION Plaintiff brought this action, pro se, against General Electric Company, Dell T echnologies, Dell, Inc., and Dell EM C 47 U.S.C. § 227, and under Alabama Code § 6-11-20(4) for wrongful conversion of personal property. Before the Court are motions to dismiss by Defendant General Electric Company (doc. 25) and Defendant Dell T echnologies, Dell Inc., and Dell EMC the Dell defendants (doc. 26) .1 Snow has timely 1 Plaintiff also names Does 1-5 as defendants in this action. (Doc. 4 at 2.) However, [a]s a general matter, fictitious-party pleading is not permitted in federal court. Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010) (citing New v. Sports & Recreation, Inc., 114 F.3d Dockets.Justia.com filed her opposition. The motions are fully briefed and ripe for review. For the are due to be granted in part reasons stated below, D and denied in part. I. BACKGROUND 2 On March 29, 2014, while living in North Carolina , Plaintiff purchased a cell phone provided by the service Tracfone. Soon afterward, she began to be bombarded with batches of text messages at all hours of the day. She asserts Defendants took the actions necessary to initiate communication with her through the use of her telephone number 3 by an automated telephone dialing system resulting in a barrage of unwanted text messages to her cell phone between 1092, 1094 n. 1 (11th Cir. 1997)). T he Eleventh Circuit has created a limited exception to this s description of the def at the very worst, sur Id. (quoting Dean v. Barber, 951 F.2d 1210, 1215 16 (11th Cir. 1992) description of the Doe defendants contains no such specificity. 2 Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1273 n.1 (11th Cir. 1999) (citing Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir. 1998)). T he following facts are, therefore, amended complaint, and the Court makes no taken from Plaintif ruling on their veracity. 3 According to Snow, her cell phone had a 919 area code. (Doc. 34 at 6.) T he Court may take judicial notice that with North Carolina as a fact that is not subject to reasonable dispute. SeeFED. R. EVID. 201. Page 2 of 19 April 1, 2014 and January 15, 2015. Snow claims she received up to thirty-nine text messages within a single 24-hour period which were often transmitted in batches at a rate of seven or more per minute. She estimates that a total of more than 2900 texts were sent to her phone during the relevant time period, none of which provided an opt-out mechanism or contact information to allow communication with the sender. According to Snow, the text messages were sent from GE, with technical support from Dell, because her phone number was previously assigned to an employee or device connected to GE. Some of the text messages purportedly ; Snow therefore surmises that they were sent by GE. Snow claims Defendants inflicted upon her: incessant disturbance and annoyance; persistent interruption of sleep; loss of time and financial resources; a commandeering of the data storage and battery life of her cell phone; in addition to fatigue, anguish, and suffering. II. ST ANDARD OF REVIEW In a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, the jurisdiction over the movant, non- Morris v. SSE, Inc., 843 F.2d 489, 492 (11th Cir. Page 3 of 19 established if the plaintiff presents enough evidence to withstand a motion for Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990) (citations omitted). The Court must treat facts alleged in the complaint as true if they are not controverted by affidavits or non-conclusory declarations submitted from the defendant. Id. However, if the defendant submits affidavits or declarations, the plaintiff must produce additional evidence supporting jurisdiction unless the Stubbs v. Wyndham Nassau Resort & Crystal Palace Casino, 447 F.3d 1357, 1360 (11th Cir. 2006). When record evidence vor of the is in conflict Id. III. D ISCUSSION a. PERSONAL JURISDICT ION 4 4 T he Court addresses the jurisdictional issue first. A court without personal jurisdiction is powerless to take further action. See Read v. Ulme 308 F.2d 915, 917 (5th Cir. 1962) ( r, seem elementary that if the court has no jurisdiction over a defendant, the defendant has an unqualified right to have an order entered granting its motion to dismiss. In the absence of jurisdiction over the person of a defendant in an action in personam, the orders and judgments of the court are void. ; see also Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) (Decisions of the former Fifth Circuit handed down before the close of business on September 30, 1981 are binding on this Court). Page 4 of 19 The Dell defendants and GE all non-Alabama corporations5 seek dismissal of the claims against them averring that the Court does not possess personal jurisdiction over them.6 Where, as here, jurisdiction is predicated upon a federal question7 -arm statute to determine the existence of personal jurisdiction. Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 626 27 (11th Cir. 1996) (citation omitted). In this case, the TCPA does not furnish directions as to service of process for private actions,8 so 5 Plaintiff alleges that Dell EMC is a Delaware corporation headquartered in Hopkinton, Massachusetts; while Dell T echnologies, Inc. and Dell, Inc. are Delaware corporations headquartered in Round Rock, T exas. She also alleges that GE is a New York Corporation headquartered in Boston. (Doc. 4 at 2.) 6 In her oppositions, Snow argues that both GE and the Dell defendants waived any challenge to personal jurisdiction or venue; however Rule 12(h) permits a defendant to raise personal jurisdiction and venue challenges at the time of its deadline to respond initially to the complaint, notwithstanding a prior appearance in the case. Fed. R. Civ. P. 12(h)(1)(B). GE and the Dell defendants did so; thus, there was no waiver. 7 In her amended complaint, Plaintiff stated that jurisdiction was based upon 47 USC. § 227(b)(3), 28 U.S.C. § 1331, and 28 U.S.C. § 1367(a). (Doc. 4 at 1.) 8 2011), . . . Congress specifically addressed venue, service of process, § 227(g)(4), and potential conflicts between federal and state enforcement efforts, § 227(g)(7). No similar prescriptions appear in the section on private actions, 47 U.S.C. § 227(b)(3) . . . . Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 381 n. 11 (2012). Page 5 of 19 -arm statute in deciding whether personal jurisdiction is present. Personal jurisdiction is generally a two-step inquiry, as the Court must consider whether personal jurisdiction is consistent with the forum - arm statute and whether the exercise of personal jurisdiction is consistent with the Due Process Clause of the Fourteenth Amendment. Mut. Serv. Ins. Co. v. Frit Indus., Inc., 358 F.3d 1312, 1319 (11th Cir. 2004). However, for federal courts in -arm statute permits the exercise of personal jurisdiction to the fullest extent constitutionally Sloss Indus. Corp. v. Eurisol, 488 F.3d 922, 925 (11th Cir. 2007) (citing Ala. R. Civ. P. 4.2(b)); see also Ex Parte Edgetech I.G., Inc., 159 So. 3d 629, 633 (Ala. 2014). Thus, the Court need only consider the limits of the Due Process Clause. Mut. Serv. Ins. Co., 358 F.3d at 1319. process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 Page 6 of 19 (1940)). T here are two types of personal jurisdiction general jurisdiction and specific jurisdiction but both ar forum state. the forum state that are related to the cause of action. [Whereas,] [g]eneral ts with the forum state that are Madara v. Hall, 916 F.2d 1510, 1516 n. 7 (11th Cir. 1990) (citations omitted). Defendants assert that the Court possesses neither general nor specific jurisdiction over them. 1) General Jurisdiction In order for the Court to exercise general jurisdiction over the non-resident defendants their affiliations with [Alabama] [must be] so continuous and systematic Daimler AG v. Bauman, 571 U.S. 117, 138-39 (2014) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)). forums in s place of incorporation and its principal place of business. BN SF Ry. Co. v. Tyrrell, 137 S. Ct. 1549, 1558 (2017) (citing Daimler, 571 U.S. at 137). While the Daimler Court did Page 7 of 19 operations in a forum other than its formal place of incorporation or principal place of business may be so substantial and of such nature as to render the corporation at such cases are rare. Daimler, 571 U.S. at 138 n. 19 (citing Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 447 448 (1952) in which a company occupation . . . by s president, from his Ohio he re s properties in the Philippines and . . . dispatched funds to cover purchases of mac as such an exception). The contacts must be sufficient that suit is justified in the subject state even in the absence of related dealings. , 326 U.S. at 318. For example, a defendant with no place of business, employees, bank accounts, advertisements, or manufacturing facilities in North Carolina, but which had agreements with other companies centers to distribute its products in North Carolina was not subject to general personal jurisdiction there. See Goodyear, 564 U.S. at 929 nd systematic Page 8 of 19 against [the defendant] on claims unrelated to anything that connects [it] to the No mention is made in the amended complaint regarding GE or the Dell Defendant dismiss that GE conducts significant business within Alabama citing to and T he articles show that GE employs 450 fulltime manufacturing and professional jobs in Alabama, its economic presence contributed to more than $165 million in compensation in 2016, and it recently made a $200 million investment to build a new GE Aviation facility in Huntsville where it intends to employ 400 people. But, as [the Supreme Court] observed in Daimler jurisdiction inquiry does not focus solely on the magnitude of the Id., [] 134 S. Ct., at 762, n. 20 (internal corporation that operates in many places can scarcely be deemed at Ibid. BN SF Ry. Co., 137 S. Ct. at 1559 (holding that a railroad with over 2000 employees and 2000 miles of track in the state of Montana was not subject to general jurisdiction there). Plaintiff has not shown how this case qualifies as exceptional. As Page 9 of 19 such, the Court finds no basis upon which to exercise general jurisdiction over Defendants.9 2) Specific Jurisdiction For the Court to exercise specific jurisdiction over Defendants, their Sloss Indus. Corp. v. Eurisol, 448 F.3d 922, 925 (11th Cir. 2007). to assert specific personal jurisdiction over a nonresident defendant, due process Madara, 916 F.2d at 1516 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985)). T he inquiry whether a forum State may assert specific jurisdiction over a nonresident defendant focuses Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 775 (1984) (quoting Shaffer v. Heitner, 433 U.S. 186, 204 (1977)). Specific jurisdiction does not require a large volume of 9 T hough the Dell defendants do not base their argument against jurisdiction upon general jurisdiction, and Snow likewise, does not address general jurisdiction as against the Dell defendants it in her response, the Court finds nothing upon which to base an exercise of general jurisdiction over the Dell defendants. Snow has not alleged sufficient facts to establish that either GE or the Dell defendants are essentially at home in Alabama. Page 10 of 19 contacts with the forum state, as even a single purposeful contact may give rise to , 355 U.S. 220, 223 (1957); see personal jurisdiction. also Licciardello v. Lovelady forum, citing Burger King, 471 U.S. at 475 n.18)). In her amended complaint, Snow failed to allege that any of the tortious behavior occurred in the Northern District of Alabama or in Alabama at all. T he only mention made regarding Alabama is her allegation that she currently resides here. Both Dell defendants and GE present evidence in the form of exhibits10 to their motions to dismiss to show that Snow was domiciled in North Carolina during the events on which Plaintiff rests both her TCPA and conversion claim. Snow was engaged in at least four lawsuits,11 which 10 When ruling upon a Rule 12(b)(2) motion to dismiss, the Court is entitled to consider documents extrinsic to the complaint. See, e.g., Sculptchair, raises through affidavits, documents or testimony a meritorious challenge to personal jurisdiction, the burden shifts to the plaintiff to prove jurisdiction by affidavits, testimony or 11 Marian Snow v. Wells Fargo Bank, N.A., et al., No. 7:14-cv-2 (E.D.N.C.) (Doc. 25-1, 263); Marian Snow v. CitiBank, N.A., No. 5:14-cv-59 (E.D.N.C.) (Doc. 25-4, 26-5); Marian Snow v. Page 11 of 19 were filed between January 2014 and August 2015 in the Eastern District of North Carolina. In each, she listed her address as being in NC.12 The Court takes judicial notice13 of these documents. Regardless of whether the information in the documents regarding her addresses is true, Snow included them in the filings of previous proceedings and attested to their truth under penalty of perjury. As for the most recent NC case, in her affidavit (doc. 34), Snow avers she travelled back to the state to visit her son and family, where she filed the August 24, Brock & Scott PLLC, et al., Case No. 7:14-cv-28 (E.D.N.C.) (Doc. 25-7, 26-6); Marian Snow v. Client Services, Inc., No. 5:15-cv-419 (E.D.N.C.) (Doc. 25-9, 26-7). 12 Snow had also filed suit in NC in January 2014, Snow v. WellsFargo Bank, N.A., et al., No. 7:14-CV-2 (E.D.N.C.), in which she attached an affidavit testifying that her principal dwelling was in T op Sail Beach, NC. (Doc. 25-1 at 25.) In her affidavit submitted to this Court (doc. 34) in support of her oppositions, Snow testified that the T op Sail property was only a vacation rental property and she never stayed there longer than two weeks each year only visiting for sporadic weekends.(Doc. 34 at 2.) T his inconsistency is revealing, and is not the only one the Court has found. Snow is estopped from from changing positions according to the exigencies of the New Hampshire v. Maine, 532 U.S. 742, 749 (2001); see also Robinson v. Tyson Foods, prevent Inc., 595 F.3d 1269, 1273 (11th Cir. 2010) Specifically, ju a party from asserting a claim in a legal proceeding that is inconsistent with a claim taken by the party in a previous preceding. (citing 18 Moore's Federal Practice § 134.30 (3d ed. 2008))). 13 Universal Express, Inc. v. SEC take judicial notice of a complaint filed in another court because it qualifies as a public record) (citing Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1277-78, 1280 (11th Cir. 1999)); Klopfenstein v. 16 n. 5 (11th Cir. 2014) (same); see also Fed. R. Deutsche Bank Sec., Inc. Evid. 201. Page 12 of 19 2015 lawsuit in the Eastern District of North Carolina. She alleges that she listed a because the case NC address because she had involved actions occurring between September 2012 and January 2013 during which she was in NC. mailing address and contact when filing. In addition, Snow filed an unlawful detainer case in Tuscaloosa district court on January 5, 2015 five months after she is purported to have exited NC listing her address as being in Wilson, NC. (Doc. 25-11.) When Snow voluntarily dismissed that case on M arch 9, 2015 almost seven months after she alleges she had stopped receiving the text messages she continued to list Wilson, NC as her address in court filings. (Doc. 25-12.) It was not until August 22, 2016 when Snow filed another unlawful detainer action that she listed her address as being in Tuscaloosa, Alabama. (Doc. 25-13.) In her affidavit, Snow testifies that in 2009 she went to NC to allow her autistic son to attend high school there, which also allowed for her to be near her eldest son and his family who reside in Wilson, NC. She lived at various NC Drive in Wilson, NC. Snow was in NC during much of the time when she began Page 13 of 19 receiving the text messages, but alleges she only remained there until August 2014. She calculates that time period to be a minority (40% of the total time the messages ) were sent stating that at no time after August 2014 was she located in NC when she received the text messages. Tellingly, Snow does not allege where she was when she received the other 60%of the texts. Snow says she moved out of NC after her lease in Zebulon, NC expired at the end of July 2014 and t in Tuscaloosa County, Alabama. Snow insists that at that time Tuscaloosa was her domicile, residence and the place she intended to remain; but the affidavit is vague and gives the Court no definitive date upon which her domicile in Alabama began. Snow asserts in her oppositions that and her cellular telephone were indeed in Alabama when a substantial portion of [the] tortious conduct was oc. 33 at 29.) However, in neither her amended complaint nor her affidavit does Snow ever affirmatively aver that she received even a single text message while she was in Alabama. conclusory jurisdictional arguments she makes in her responses. Furthermore, Page 14 of 19 ,14 and nothing in the amended complaint or her affidavit suggests she ever apprised Defendants of her alleged presence in Alabama. Consequently, no Defendant can be said to have targeted Alabama. Even crediting the affidavit and considering the facts as alleged in the amended complaint in a light most favorable to Snow, the Court does not find it possesses specific jurisdiction over either GE or the Dell defendants. Because the Court has found no contacts sufficient to subject either the Dell defendants or GE to personal jurisdiction in Alabama, the Court need not evaluate whether jurisdiction over them would be fair. See Hanson v. Denckla, 357 U.S. 235, 254 (1958); see also World-Wide Volkswagen Corp defendant would suffer minimal or no inconvenience from being forced to litigate before the tribunals of another State; even if the forum State has a strong int erest in applying its law to the controversy; even if the forum State is the most convenient 14 particular state that violate the T CPA sufficient to satisfy the [purposeful direction] test for a court of that state to exercise personal jurisdiction over the defe Keim v. ADF MidAtlantic, LLC, 199 F. Supp. 3d 1362, 1370 (S.D. Fla. 2016) (collecting cases); Luna v. Shac, LLC, No. C14-00607 HRL, 2014 WL 3421514, at *4 (N.D. Cal. July 14, 2014) defendant] intentionally sent unsolicited text messages advertising [itself] to California cell phone numbers, which conduct gave rise to this litigation, it purposefully directed its activity to California such that [the defendant] is reasonably subject to the personal jurisdiction of [the court] . Page 15 of 19 location for litigation, the Due Process Clause, acting as an instrument of interstate federalism, may sometimes act to divest the State of its power to render a valid the Dell defendants and GE does not comport with due process and, as such, Defendants cannot be made to defend this action in Alabama. b. V ENUE istrict 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; (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 s personal jurisdiction with respect to such action. U.S.C. § 1391 (b). A corporation judicial district in which such defendant jurisdiction with respect to the civil action in question personal jurisdiction. The events s personal 28 U.S.C. § 1391(c)(2). As as alleged in the Page 16 of 19 amended complaint did not occur in Alabama and no defendant resides in Alabama. As such, venue is improper in this district. c. T RANSFER OF CLAIMS OR AMENDMENT In her responses in opposition, Snow requests that if the Defendants are not subject to jurisdiction in Alabama, which they are not, that in the alternative, the Court either allow her to amend her complaint to state claims, or that the Court transfer the case to the proper district in lieu of dismissal pursuant to 29 U.S.C. § 1404(a).15 Pursuant to 28 U.S.C. § 1631, i jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed . . . . In its reply, GE establishes that if Snow makes a request to transfer pursuant to 28 U.S.C. § 1406(a), 16 it would not object to transfer to the Eastern District of North Carolina. (Doc. 36 at 9.) T he Dell 15 29 U.S.C. § 1404 concerns alternative methods of withdrawal liability payments. T he Court assumes Snow intended to cite 28 U.S.C. § 1404 which sets forth procedures for changes of venue and transfers. 16 (a) T he district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought. Page 17 of 19 Pursuant to 28 USC. § 1658(a), the statute of limitations for violations of 47 U.S.C. § 227 is four years after the cause of action accrues. , the Court finds it would be in the interest of justice to transfer her claims instead of dismissing them. C. CONCLUSION 17 For the reasons stated above, motions (docs. 25 & 26) are due to be granted in part and denied in part. The Court finds that neither GE nor the Dell defendants can be made to defend this case in Alabama and the Northern District of Alabama is not the proper venue for this action. The case is therefore due to be transferred to the Eastern District of North Carolina. T hus, Snow is DIRECTED to file a motion to transfer this action pursuant to 28 U.S.C. § 1406(a) within fifteen (15) days of the entry of this Memorandum of Opinion. If Snow does not file such a motion to transfer within the time period stated, the Court will 17 Because the Court has concluded it lacks jurisdiction over the Defendants, it does not on claims. reach the merits of Sn proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause In re Bayou Shores SNF, LLC, 828 F.3d 1297, 1329 (11th Cir. 2016) (citing Steel Co. v. Citizens for a Better Env t, 523 U.S. 83, 94 (1998) (quoting Ex parteMcCardle, 74 U.S. 506, 514 (1868))). Page 18 of 19 DISMISS this action without prejudice. A separate Order will be entered with this Opinion. DONE and ORDERED on August 3, 2018. _____________________________ L. Scott Coogler United States District Judge 190685 Page 19 of 19
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