United States District Court, D. Arizona
PAUL G. ROSENBLATT, District Judge.
On October 10, 2013, Plaintiff field a two-count complaint, alleging violations of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227 et seq., and invasion of privacy by intrusion upon seclusion. (Doc. 1.) Before the Court is Defendant's amended motion to dismiss the complaint for lack of personal jurisdiction and failure to state a claim under Rule 12(b)(2) and 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 16.) For the reasons set forth herein, the motion is denied in part and granted in part.
I. Personal jurisdiction: Rule 12(b)(2)
Under Rule 12(b)(2), a court may dismiss a case for "lack of jurisdiction over the person." If a defendant challenges personal jurisdiction, the plaintiff bears the burden of establishing the district court's personal jurisdiction over the defendant. See Doe I v. Unocal Corp., 248 F.3d 915, 922 (9th Cir. 2001) (per curiam). The plaintiff need only make a prima facie showing by presenting facts which, if true, establish jurisdiction. Mattel, Inc. v. Greiner and Hausser GmbH, 354 F.3d 857, 862 (9th Cir. 2003). "Unless directly contravened, [plaintiff's] version of the facts is taken as true, and conflicts between the facts contained in declarations submitted by the two sides must be resolved in [plaintiff's] favor for purposes of deciding whether a prima facie case for personal jurisdiction exists." Id.
There are two types of personal jurisdiction, general and specific. General jurisdiction exists where a nonresident defendant's activities within a state are "substantial" or "continuous and systematic." Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1287 (9th Cir. 1977). "A court may assert general jurisdiction over foreign (sister-state or foreign-country) corporations to hear any and all claims against them when their affiliations with the State are so continuous and systematic' as to render them essentially at home in the forum State." Goodyear Dunlop Tires Operations, S.A. v. Brown, ___ U.S. ___, 131 S.Ct. 2846, 2851 (2011). A nonresident defendant's contacts must "approximate physical presence" in the forum state. Bancroft & Masters, Inc. v. Augusta Nat'l, Inc., 223 F.3d 1082, 1086 (9th Cir. 2000). To determine whether a nonresident defendant's contacts are sufficiently continuous and substantial, courts consider their "longevity, continuity, volume, economic impact, physical presence, and integration into the state's regulatory or economic markets." Taxon v. RJ Reynolds Tobacco Co., 433 F.3d 1163, 1172 (9th Cir. 2006); see Schwarzenegger v. Fred Martin Co., 374 F.3d 797, 801 (9th Cir. 2004).
Specific jurisdiction arises when a defendant's specific contacts with the forum give rise to the claim in question. See Helicopteros Nacionales de Columbia S.A. v. Hall, 466 U.S. 408, 414-16 (1984). "A court exercises specific jurisdiction where the cause of action arises out of or has a substantial connection to the defendant's contacts with the forum." Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co., 284 F.3d 1114, 1123 (9th Cir. 2002). The Ninth Circuit employs a three part test: specific jurisdiction exists if (1) the defendant has performed some act or consummated some transaction within the forum or otherwise purposefully availed himself of the privilege of conducting activities in the forum, (2) the claim arises out of or results from the defendant's forum-related activities, and (3) the exercise of jurisdiction is reasonable. Mattel, 354 F.3d at 863. The plaintiff bears the burden of satisfying the first two prongs of the test. Schwarzenegger, 374 F.3d at 802. If the plaintiff fails to satisfy either of these prongs, personal jurisdiction is not established in the forum state. Id. If the plaintiff succeeds in satisfying both of the first two prongs, the burden then shifts to the defendant to "present a compelling case" that the exercise of jurisdiction would not be reasonable. Id.
While Plaintiff contends that both general and specific jurisdiction exist, it is clear that Defendant does not have "substantial" or "continuous and systematic" contact with Arizona. The only facts alleged in the complaint are that Defendant "transact[s] business" in Arizona (Doc. 1, ¶ 3) and that Defendant placed calls to Plaintiff's cell phone. This is insufficient to establish that Defendant has "approximate physical presence" in Arizona.
The question of specific jurisdiction is closer. The issue turns on whether Defendant's calls to Plaintiff were sufficient to show purposeful availment. Plaintiff cites In j2 Global Communications, Inc. v. Blue Jay, Inc., No. C-08-4254-PJH, 2009 WL 29905, at *10 (N.D.Cal. Jan. 05, 2009), and Hudak v. Berkley Group, Inc., No. 3:13-cv-00089-WWE, 2014 WL 354676, at *3 (D.Conn. January 23, 2014), to support his argument that specific jurisdiction exists. In j2 the court ruled that unsolicited fax advertisements sent to the plaintiff's fax machine from an out-of-state defendant in violation of the TCPA provided a sufficient basis for personal jurisdiction. 2009 WL 29905, at *10; see also Heidorn v. BDD Marketing & Management Company, LLC, Case No. C-13-00229 JCS, 2013 WL 6571629, 8 (N.D.Cal. August 19, 2013) (where "the defendant has directed its activities at the forum state by calling the plaintiff without the plaintiff's consent, the TCPA claim arises out of that conduct, and exercise of jurisdiction is not unreasonable").
In Hudak, a case also involving the defendant here, Caribbean Cruise Line, the court found that the defendants had "sufficient minimum contacts with this forum to give rise to specific jurisdiction in the context of this lawsuit" where the complaint alleged that the defendants made unsolicited phone calls to the plaintiff in Connecticut. WL 354676, at *3. The court also found that "subjecting defendants to this Court's jurisdiction does not offend traditional notions of fair play and substantial justice. Indeed, defendants purposely availed themselves of the privilege of doing business in Connecticut and could foresee being haled into court here." Id.
The Court finds that complaint in this case is sufficient to establish specific jurisdiction, based on the allegation that Defendant made calls to Plaintiff's Arizona number and the fact that those calls are the basis for Plaintiff's claims. Defendant has not presented a compelling case that jurisdiction here would not be reasonable.
II. Failure to state a claim: Rule 12(b)(6)
Under Rule 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. To survive a motion to dismiss, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). A claim is facially plausible when the plaintiff pleads facts that "allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). This standard requires there to be "more than a sheer possibility that a defendant has acted unlawfully." Id. While courts do not require "heightened fact pleading of specifics, " a plaintiff must allege facts sufficient to "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555, 570.
In deciding whether the plaintiff has stated a claim upon which relief can be granted, the court accepts the plaintiff's allegations as true and draws all reasonable inferences in favor of the plaintiff. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not required to accept as true "allegations that are merely conclusory, unwarranted deductions of fact, or ...