That’s Purposeful Availment?: Court Holds Sending A Text To An Indiana Area Code Is Sufficient To Confer Personal Jurisdiction For A TCPA Claim.
The TCPAWorld personal jurisdiction hits keep coming. On Wednesday, we covered a decision from the Eastern District of Texas dismissing a case for lack of personal jurisdiction. Today we bring you more of a mixed-bag decision, as the Southern District of Indiana dismissed one TCPA defendant for lack of personal jurisdiction but retained jurisdiction over another. See Weiss v. Grand Campus Living, No. 1:18-cv-00434, 2019 U.S. Dist. LEXIS 41041 (March 14, 2019).
The facts are fairly straightforward. The plaintiff attended the University of Akron in Ohio, but left Akron and took her talents to South Beach Indiana. While in Indiana, she allegedly received text messages from two campus housing management companies, Aspen Heights and Grand Campus. Rather than return to Ohio for a chance at championing her TCPA claims there, the plaintiff filed suit in Indiana. But neither defendant has any employees or offices in Indiana. So both moved to dismiss for lack of personal jurisdiction. The Court ultimately dismissed the claims against Aspen Heights but retained jurisdiction over Grand Campus.
The court first held that sending a text message to the plaintiff’s cell phone, which had an Indiana area code, constituted purposeful availment. In so holding, it relied on two key factors. First, a TCPA violation is a tort, not a breach of contract. Torts generally require more limited contact with the forum state – directing action to the forum state that causes the alleged harm can be enough. Second, the alleged text message was not local in nature. It advertised campus housing to incoming students who would attend classes in the upcoming semester, including new students. The court stated that it was reasonable for the defendant to believe that the texts would be received in other states because one would expect incoming students to reside in multiple states, not just Ohio. The court therefore distinguished cases that involved text related to purely local services, such as a local pizza restaurant texting its customers about upcoming specials. But that still seems like a stretch. Just because someindividuals might live in different states does not mean that particular individual lives in Indiana. And, after all, the text message was sent because the defendant believed the plaintiff would need housing in Ohio.
But although the opinion takes an expansive view of personal jurisdiction, the local-versus-national distinction is an important limiting factor. At a minimum it provides a shield to truly local businesses attempting to reach their customers, who likely have cell phones with area codes from all over the country. Even the court acknowledges that people tend to keep their cell phone numbers when they move to new cities. The Archduke is unusual – few people have only lived in a 30-mile radius, especially in Atlanta. Sending text messages or placing calls to a particular area code therefore cannot confer jurisdiction by itself. Other facts have to be present to establish purposeful availment and reasonableness.
So how did Aspen Heights escape the court’s broad jurisdictional net? Turns out it had nothing to do with the case at all. The plaintiff alleged that Aspen Heights purchased Grand Campus and contracted with a third party to send text messages to students. But Aspen Heights submitted a declaration that established: 1) another entity, not it, purchased Grand Campus; and 2) it did not contract with the third party at all. The plaintiff complained that Aspen Heights improperly submitted evidence that went to the merits of the claim rather than jurisdiction, but the court correctly held that those two facts went to both jurisdiction and the merits. Thus, the plaintiff had to controvert them; otherwise, the court could accept them when ruling on the 12(b)(2) motion.