August 8, 2020

Volume X, Number 221

August 07, 2020

Subscribe to Latest Legal News and Analysis

August 06, 2020

Subscribe to Latest Legal News and Analysis

August 05, 2020

Subscribe to Latest Legal News and Analysis

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.

© 2020 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume IX, Number 10


About this Author

Laura Phillips, Drinker Biddle Law Firm, Washington DC, Communications Law Attorney

Laura H. Phillips is a partner in and chair of the firm's Government & Regulatory Affairs Practice Group and a member of the Telecommunications & Mass Media Team.  She has over 25 years of experience working in nearly every aspect of the telecommunications market.

Laura counsels wireless and wired technology entrepreneurs and represents these clients on issues related to the development of new technologies, including devoting substantive attention to the development of spectrum auctions, network...

Katie Bailey Garayoa, Drinker Biddle Law Firm, Philadelphia, Complex Litigation Attorney

Katie B. Garayoa represents individual and corporate clients in a variety of complex litigation matters, including financial and securities litigation, fraudulent misrepresentation claims, and contract disputes. Katie also defends class actions involving privacy and consumer issues and claims under the Telephone Consumer Protection Act. In the course of her practice, Katie has conducted internal investigations, represented clients in regulatory enforcement proceedings, engaged in large scale discovery, and participated in dispositive motion practice and trial proceedings.

In 2014, Katie was elected to the Executive Committee of the Young Lawyers Division of the Philadelphia Bar Association, which manages and directs activities for the YLD’s more than 2,900 members in the areas of service to the legal community, public service, and law-related education. Katie also actively participates in mentoring programs within the firm and the Philadelphia legal community.

While in law school, she served as an Arthur Littleton and H. Clayton Louderback Legal Writing Instructor.