“This Isn’t The Defendant You’re Looking For” – Florida District Court Dismisses TCPA Complaint After Successful Factual Attack On Personal Jurisdiction
Here is a quick one for TCPAWorld. Typically, when a lawsuit is filed, a court assumes the facts alleged in the complaint are true and the defendant must show that, even assuming the complaint’s factual allegations are true, it must nevertheless be dismissed. However, when it comes to jurisdictional issues, such as personal jurisdiction, defendants can mount a factual attack on the court’s authority to adjudicate the plaintiff’s claim. If a defendant presents unrebutted evidence that the court lacks personal jurisdiction, the case may be kicked out as early as the pleadings stage.
And that is precisely what happened in the Southern District of Florida in the case of Cortazar v. Ca Ventures, 2019 U.S. Dist. LEXIS 139286 (S.D. Fl. Aug. 15, 2019). In Cortazar, the complaint brought claims under the TCPA and alleged that the plaintiff received two text messages from a short code number, which according to the court, “enables senders to send SMS text messages en masse.” Plaintiff alleged in her complaint that the defendant, CA Ventures, LLC, “used this short code in combination with an [ATDS] to send out advertisements without human intervention,” and that the texts concerned “advertisements for apartments in Miami.” However, plaintiff’s complaint alleged, “upon information and belief,” only that the defendant “owned and operated” the short code number at issue, and that the defendant “caused other text messages to be sent to individuals residing within this judicial district.”
Plaintiff conceded that the defendant was not a Florida corporation, and therefore general jurisdiction over the defendant did not exist. The real fight concerned specific jurisdiction – and, right out of the gate, defendant launched a factual attack on the court’s authority to exercise jurisdiction over it. Specifically, defendant “argue[d] that there [was] no specific jurisdiction because [it] did not cause the alleged harm [to plaintiff] that occurred in Florida.” To substantiate its argument, defendant submitted the affidavit of a corporate representative along with its motion to dismiss. In the affidavit, the corporate representative testified that defendant does not “own, operate, or manage” the apartment buildings that were the subject of the text messages. Defendant’s representative also testified that plaintiff’s “belief” that defendant “owns” the short code number is “false;” rather, defendant’s representative specifically testified that it “does not own or operate” the alleged short code number.
Faced with this evidence, the Cortazar court found that Eleventh Circuit precedent required that the burden shift back to plaintiff “to submit conflicting evidence that proves jurisdiction.” But plaintiff’s rebuttal evidence was lacking – specifically, plaintiff testified only that she has a Florida area code, that she received the text in Florida, and that “she received ‘both of the messages from [d]efendant.’”
According to the court, the plaintiff’s affidavit “did not . . . rebut [d]efendant’s claims,” and therefore, the court “credit[ed]” defendant’s “statements over [p]laintiff’s allegations . . . to the extent they [were] inconsistent.” Based on the corporate representative’s affidavit, the court determined that its jurisdiction “was not genuinely in dispute” because plaintiff swore “to no facts showing that [d]efendant sent the texts” but only to “conclusory allegations” respecting defendant’s involvement in the texting campaign. Based on that analysis, the court dismissed the complaint for lack of personal jurisdiction.
As an aside, the court swiftly rejected plaintiff’s attempt to get around her lack of specific rebuttal evidence on the jurisdictional issue. For instance, plaintiff requested that the court direct defendant to “inform” the court and plaintiff of the correct defendant’s identity or to “swear under oath that [the defendant] does not know who the correct defendant should be;” but the court declined, explaining that “the duty to identify the correct party defendant rests with [p]laintiff, not [d]efendant.” Further, the court rejected plaintiff’s request for jurisdictional discovery because plaintiff had not created a “genuine dispute” over the court’s jurisdiction, and because the request was “buried . . . in [a] footnote [in] a response to the Motion [to Dismiss].”
The take-away? A properly supported factual attack on personal jurisdiction may be an efficient and quick means to end TCPA litigation at the pleadings stage. Indeed, courts appear more willing to consider facts outside the pleadings when jurisdiction is at issue, as opposed to the merits of a plaintiff’s factual allegations.
Until next time.