North Carolina District Court Rules that University Is Subject to Personal Jurisdiction, Rejecting Argument That It Did Not Intentionally Place Calls to North Carolina Resident
Last week, the Eastern District of North Carolina denied a TCPA defendant’s personal jurisdiction challenge, finding unpersuasive its argument that it did not purposefully avail itself of the protections of North Carolina law because it did not intentionally make phone calls to Plaintiff in North Carolina. See Hicks v. Houston Baptist Univ., No. 5:17-CV-629-FL, 2019 WL 96219, at *4–5 (E.D.N.C. Jan. 3, 2019).
Plaintiff, a North Carolina resident, asserted a claim on behalf of putative nationwide classes premised on allegations that Defendant, a private university located in Houston, Texas, placed calls to her cellular phone (which was listed on the National Do Not Call Registry), advertising course offerings, without her prior express consent. Plaintiff alleged that the court had specific jurisdiction over Defendant. The court agreed, finding that Defendant had purposefully availed itself of the privilege of conducting activities in North Carolina by placing phone calls to Plaintiff while she resided in North Carolina—even though Plaintiff had not specifically alleged in her complaint that she received the phone calls in North Carolina. See id. at *4.
The court rejected Defendant’s arguments that it did not purposefully avail itself of the privilege of doing business in the state because (1) records listed Plaintiff’s address as being in Austin, Texas and (2) Plaintiff’s cellular phone had a Texas area code. The court held that Defendant’s contacts with the state show that it had purposefully availed itself of the forum, reasoning that a review of Defendant’s records revealed two contacts with residential addresses located in North Carolina and five contacts with phone numbers listing North Carolina area codes. Based on these facts, the court further rejected Defendant’s insinuation that, if it had known Plaintiff was residing in North Carolina, it would not have made calls to her. See id.
The court also denied the Defendant’s motion to strike Plaintiff’s proposed classes on the basis that the court lacked personal jurisdiction over out-of-state claimants (citing Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, 137 S. Ct. 1773 (2017)), “join[ing] the majority of other courts in concluding that personal jurisdiction must be analyzed at the level of the suit, and in a class action, ‘ . . . there is only one suit: the suit between Plaintiff and Defendant.’” Id. at *6 (quoting Morgan v. U.S. Xpress, Inc., No. 3:17-cv-00085, 2018 WL 3580775, at *5 (W.D. Va. July 25, 2018)). Because the Plaintiff made a showing of personal jurisdiction for her individual claim, the court found that the Plaintiff had established personal jurisdiction for the putative class claim. See id.
Cellular phones can be used anywhere and their assigned area codes are increasingly meaningless in determining the physical location of the called party. This decision is a reminder to callers that calling cellular phones may create TCPA liability exposure even in jurisdictions where they do not intentionally conduct business activities.