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Another Court Rejects Threadbare Allegations of So-Called Vicarious Personal Jurisdiction

The District of Arizona recently dismissed Winters v. Grand Caribbean Cruises, Inc., No. 20-0168, 2021 WL 511217 (D. Ariz. Feb. 11, 2021), for lack of personal jurisdiction, finding that the plaintiffs had failed to establish that the caller’s contact with Arizona could be imputed to Grand Caribbean.

The plaintiffs alleged that Grand Caribbean violated the TCPA by using a prerecorded voice to initiate calls to numbers on the Do-Not-Call Registry.  Grand Caribbean moved to dismiss for lack of personal jurisdiction, among other things.

The court addressed Grand Caribbean’s personal jurisdiction argument by first noting that, because Grand Caribbean is a Florida company, it is not subject to the court’s general personal jurisdiction.  The court then turned to whether it had specific jurisdiction over Grand Caribbean.  The plaintiffs argued that Grand Caribbean was subject to specific personal jurisdiction because Grand Caribbean engaged in “direct contact” with Arizona residents, or alternatively, because the callers’ contacts with Arizona should be imputed to Grand Caribbean.

Grand Caribbean submitted declarations to support its argument that it should not be subject to jurisdiction based on the “direct contact” theory, because it did not place or make any telephone calls to plaintiffs.  The court agreed and turned to whether personal jurisdiction could be imputed based on an agency relationship with the caller.

The court also agreed that the plaintiffs had not shown that so-called imputed or vicarious jurisdiction existed here.  For one, the complaint failed to distinguish between Grand Caribbean and its agents, referring to them as a single entity throughout the complaint.  More significant was the plaintiffs’ failure to allege any facts showing that Grand Caribbean had the right to substantially control the means or manner of the caller’s activities, which is a “fundamental tenet of an agency relationship.”  The fact that the callers identified themselves as representatives of Grand Caribbean was, the court found, not material.

The court’s decision is consistent with others that have dismissed TCPA claims due to inadequate allegations about supposed vicarious jurisdiction, which we covered here and here.  These decisions emphasize that TCPA defendants should continue to scrutinize a complaint for allegations of jurisdiction and agency, and should raise defects in jurisdiction when appropriate.

© 2022 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume XI, Number 49

About this Author

Michael Daly, Drinker Biddle Law Firm, Philadelphia, Litigation and Retail Attorney

Michael P. Daly defends class actions and other complex litigation matters, handles appeals in state and federal courts across the country, and counsels clients on maximizing the defensibility of their marketing and enforceability of their contracts. A recognized authority on class action and consumer protection litigation, he often speaks, comments, and writes on recent decisions and developments in the class action arena. He is also a founder of the firm’s TCPA Team; the senior editor of the TCPA Blog, which provides important information and insight...

Deanna J. Hayes Litigation Attorney Drinker Biddle

Deanna J. Hayes assists in various stages of legal proceedings and trial preparation, including conducting research, writing motions, and drafting other memoranda. Before joining the firm, Deanna was a judicial intern for the Hon. Michael Erdos, Pennsylvania Court of Common Pleas, Criminal Division.

In law school, Deanna was selected to serve as a Littleton Fellow for Penn Law’s Legal Practice Skills curriculum. As a Littleton Fellow, Deanna taught oral communication and legal writing skills to a small group of first-year law students. Deanna was also a member of...

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