Snow v. General Electric Company et al
Filing
44
MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 8/3/2018. (TLM, )
FILED
2018 Aug-03 PM 03:36
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
MARIAN SNOW
)
)
Plaintiff,
)
)
v.
)
)
GENERAL ELECTRIC COMPANY, )
DELL TECHNOLOGIES, DELL )
INC., DELL EMC, ET. AL.,
)
)
Defendants.
)
7:17-cv-01961-LSC
MEMORANDUM OF OPINION
Plaintiff
brought this action, pro se,
against General Electric Company, Dell Technologies, Dell, Inc., and Dell EMC
47 U.S.C. § 227, and
under Alabama Code § 6-11-20(4) for wrongful conversion of personal property.
Before the Court are motions to dismiss by Defendant General Electric Company
(doc. 25) and Defendant Dell Technologies, Dell Inc., and Dell EMC
the Dell defendants
1
(doc. 26)
.1 Snow has timely
Plaintiff also names Does 1-5 as defendants in this action. (Doc. 4 at 2.) However,
[a]s a general matter, fictitious-party pleading is not permitted in federal court. Richardson v.
Johnson, 598 F.3d 734, 738 (11th Cir. 2010) (citing New v. Sports & Recreation, Inc., 114 F.3d
filed her opposition. The motions are fully briefed and ripe for review.
reasons stated below, D
For the
are due to be granted in part
and denied in part.
I.
BACKGROUND2
On March 29, 2014, while living in North Carolina
, Plaintiff
purchased a cell phone provided by the service Tracfone. Soon afterward, she
began to be bombarded with batches of text messages at all hours of the day. She
asserts Defendants took the actions necessary to initiate communication with her
through the use of her telephone number3 by an automated telephone dialing
system resulting in a barrage of unwanted text messages to her cell phone between
1092, 1094 n. 1 (11th Cir. 1997)). The Eleventh Circuit has created a limited exception to this
s description of the def
at the very worst,
sur
Id. (quoting Dean v. Barber, 951 F.2d 1210, 1215 16 (11th Cir. 1992)
description of the Doe defendants contains no such specificity.
2
Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1273 n.1 (11th Cir. 1999) (citing Hawthorne
v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir. 1998)). The following facts are, therefore,
taken from Plaintif
amended complaint, and the Court makes no
ruling on their veracity.
3
According to Snow, her cell phone had a 919 area code. (Doc. 34 at 6.) The Court may
take judicial notice that
with North Carolina as a fact that is not subject to
reasonable dispute. See FED. R. EVID. 201.
Page 2 of 19
April 1, 2014 and January 15, 2015. Snow claims she received up to thirty-nine text
messages within a single 24-hour period
which were often transmitted in batches
at a rate of seven or more per minute. She estimates that a total of more than 2900
texts were sent to her phone during the relevant time period, none of which
provided an opt-out mechanism or contact information to allow communication
with the sender. According to Snow, the text messages were sent from GE, with
technical support from Dell, because her phone number was previously assigned to
an employee or device connected to GE. Some of the text messages purportedly
; Snow therefore surmises that they were
sent by GE. Snow claims Defendants
inflicted upon her: incessant
disturbance and annoyance; persistent interruption of sleep; loss of time and
financial resources; a commandeering of the data storage and battery life of her cell
phone; in addition to fatigue, anguish, and suffering.
II.
STANDARD OF REVIEW
In a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, the
jurisdiction over the movant, non-
Morris v. SSE, Inc., 843
F.2d 489, 492 (11th Cir.
Page 3 of 19
established if the plaintiff presents enough evidence to withstand a motion for
Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990) (citations
omitted). The Court must treat facts alleged in the complaint as true if they are not
controverted by affidavits or non-conclusory declarations submitted from the
defendant. Id. However, if the defendant submits affidavits or declarations, the
plaintiff must produce additional evidence supporting jurisdiction unless the
Stubbs v. Wyndham Nassau Resort &
Crystal Palace Casino, 447 F.3d 1357, 1360 (11th Cir. 2006). When record evidence
is in conflict
vor of the
Id.
III.
DISCUSSION
a. PERSONAL JURISDICTION4
4
The Court addresses the jurisdictional issue first. A court without personal jurisdiction is
powerless to take further action. See Read v. Ulmer, 308 F.2d 915, 917 (5th Cir. 1962) (
seem elementary that if the court has no jurisdiction over a defendant, the defendant has an
unqualified right to have an order entered granting its motion to dismiss. In the absence of
jurisdiction over the person of a defendant in an action in personam, the orders and judgments of
the court are void. ; see also Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en
banc) (Decisions of the former Fifth Circuit handed down before the close of business on
September 30, 1981 are binding on this Court).
Page 4 of 19
The Dell defendants and GE
all non-Alabama corporations5
seek
dismissal of the claims against them averring that the Court does not possess
personal jurisdiction over them.6 Where, as here, jurisdiction is predicated upon a
federal question7
-arm statute to
determine the existence of personal jurisdiction. Sculptchair, Inc. v. Century Arts,
Ltd., 94 F.3d 623, 626 27 (11th Cir. 1996) (citation omitted). In this case, the
TCPA does not furnish directions as to service of process for private actions,8 so
5
Plaintiff alleges that Dell EMC is a Delaware corporation headquartered in Hopkinton,
Massachusetts; while Dell Technologies, Inc. and Dell, Inc. are Delaware corporations
headquartered in Round Rock, Texas. She also alleges that GE is a New York Corporation
headquartered in Boston. (Doc. 4 at 2.)
6
In her oppositions, Snow argues that both GE and the Dell defendants waived any
challenge to personal jurisdiction or venue; however Rule 12(h) permits a defendant to raise
personal jurisdiction and venue challenges at the time of its deadline to respond initially to the
complaint, notwithstanding a prior appearance in the case. Fed. R. Civ. P. 12(h)(1)(B). GE and
the Dell defendants did so; thus, there was no waiver.
7
In her amended complaint, Plaintiff stated that jurisdiction was based upon 47 USC. §
227(b)(3), 28 U.S.C. § 1331, and 28 U.S.C. § 1367(a). (Doc. 4 at 1.)
8
2011), . . . Congress specifically
addressed venue, service of process, § 227(g)(4), and potential conflicts between federal and
state enforcement efforts, § 227(g)(7). No similar prescriptions appear in the section on private
actions, 47 U.S.C. § 227(b)(3) . . . . Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 381 n. 11
(2012).
Page 5 of 19
-arm statute in deciding whether personal
jurisdiction is present.
Personal jurisdiction is generally a two-step inquiry, as the Court must
consider whether personal jurisdiction is consistent with the forum
-
arm statute and whether the exercise of personal jurisdiction is consistent with the
Due Process Clause of the Fourteenth Amendment. Mut. Serv. Ins. Co. v. Frit
Indus., Inc., 358 F.3d 1312, 1319 (11th Cir. 2004). However, for federal courts in
-arm statute permits
the exercise of personal jurisdiction to the fullest extent constitutionally
Sloss Indus. Corp. v. Eurisol, 488 F.3d 922, 925 (11th Cir. 2007)
(citing Ala. R. Civ. P. 4.2(b)); see also Ex Parte Edgetech I.G., Inc., 159 So. 3d 629,
633 (Ala. 2014). Thus, the Court need only consider the limits of the Due Process
Clause. Mut. Serv. Ins. Co., 358 F.3d at 1319.
process requires only that in order to subject a defendant to a
judgment in personam, if he be not present within the territory of the forum, he
have certain minimum contacts with it such that the maintenance of the suit does
Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463
Page 6 of 19
(1940)). There are two types of personal jurisdiction
specific jurisdiction
general jurisdiction and
but both ar
forum state.
the forum state that are related to the cause of action. [Whereas,] [g]eneral
ts with the forum state that are
Madara v. Hall, 916 F.2d 1510, 1516 n. 7 (11th Cir.
1990) (citations omitted). Defendants assert that the Court possesses neither
general nor specific jurisdiction over them.
1) General Jurisdiction
In order for the Court to exercise general jurisdiction over the non-resident
defendants
their affiliations with [Alabama] [must be] so
continuous and systematic
Daimler AG v. Bauman, 571 U.S. 117, 138-39 (2014) (quoting Goodyear Dunlop Tires
Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)).
forums in
s place of
incorporation and its principal place of business.
BN SF Ry. Co. v. Tyrrell, 137 S.
Ct. 1549, 1558 (2017) (citing Daimler, 571 U.S. at 137). While the Daimler Court did
Page 7 of 19
operations in a forum other than its formal place of incorporation or principal place
of business may be so substantial and of such nature as to render the corporation at
such cases are rare. Daimler, 571 U.S. at 138 n. 19 (citing
Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 447 448 (1952) in which a
company
occupation . . . by
s president, from his Ohio
he re
s
properties in the Philippines and . . . dispatched funds to cover purchases of
mac
as such an exception). The contacts must be
sufficient that suit is justified in the subject state even in the absence of related
dealings.
, 326 U.S. at 318. For example, a defendant with no place
of business, employees, bank accounts, advertisements, or manufacturing facilities
in North Carolina, but which had agreements with other companies
centers to distribute its products in North Carolina was not subject to general
personal jurisdiction there. See Goodyear, 564 U.S. at 929
nd systematic
Page 8 of 19
against [the defendant] on claims unrelated to anything that connects [it] to the
No mention is made in the amended complaint regarding GE
or the Dell
Defendant
dismiss that GE conducts significant business within Alabama citing to and
The articles show that GE employs 450
fulltime manufacturing and professional jobs in Alabama, its economic presence
contributed to more than $165 million in compensation in 2016, and it recently
made a $200 million investment to build a new GE Aviation facility in Huntsville
where it intends to employ 400 people.
But, as [the Supreme Court] observed in Daimler
jurisdiction inquiry does not focus solely on the magnitude of the
Id., [] 134 S. Ct., at 762, n. 20 (internal
corporation that operates in many places can scarcely be deemed at
Ibid.
BN SF Ry. Co., 137 S. Ct. at 1559 (holding that a railroad with over 2000 employees
and 2000 miles of track in the state of Montana was not subject to general
jurisdiction there). Plaintiff has not shown how this case qualifies as exceptional. As
Page 9 of 19
such, the Court finds no basis upon which to exercise general jurisdiction over
Defendants.9
2) Specific Jurisdiction
For the Court to exercise specific jurisdiction over Defendants, their
Sloss
Indus. Corp. v. Eurisol, 448 F.3d 922, 925 (11th Cir. 2007).
to assert specific personal jurisdiction over a nonresident defendant, due process
Madara, 916 F.2d at 1516 (quoting
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985)). The inquiry whether a
forum State may assert specific jurisdiction over a nonresident defendant focuses
Keeton v.
Hustler Magazine, Inc., 465 U.S. 770, 775 (1984) (quoting Shaffer v. Heitner, 433
U.S. 186, 204 (1977)). Specific jurisdiction does not require a large volume of
9
Though the Dell defendants do not base their argument against jurisdiction upon general
jurisdiction, and Snow likewise, does not address general jurisdiction as against the Dell
defendants it in her response, the Court finds nothing upon which to base an exercise of general
jurisdiction over the Dell defendants. Snow has not alleged sufficient facts to establish that either
GE or the Dell defendants are essentially at home in Alabama.
Page 10 of 19
contacts with the forum state, as even a single purposeful contact may give rise to
personal jurisdiction.
, 355 U.S. 220, 223 (1957); see
also Licciardello v. Lovelady
forum,
citing Burger King, 471 U.S. at
475 n.18)).
In her amended complaint, Snow failed to allege that any of the tortious
behavior occurred in the Northern District of Alabama
only mention made regarding Alabama
or in Alabama at all. The
is her
allegation that she currently resides here. Both Dell defendants and GE present
evidence in the form of exhibits10 to their motions to dismiss to show that Snow was
domiciled in North Carolina during the events on which Plaintiff rests both her
TCPA and conversion claim. Snow was engaged in at least four lawsuits,11 which
10
When ruling upon a Rule 12(b)(2) motion to dismiss, the Court is entitled to consider
documents extrinsic to the complaint. See, e.g., Sculptchair,
raises through affidavits, documents or testimony a meritorious challenge to personal
jurisdiction, the burden shifts to the plaintiff to prove jurisdiction by affidavits, testimony or
11
Marian Snow v. Wells Fargo Bank, N.A., et al., No. 7:14-cv-2 (E.D.N.C.) (Doc. 25-1, 263); Marian Snow v. CitiBank, N.A., No. 5:14-cv-59 (E.D.N.C.) (Doc. 25-4, 26-5); Marian Snow v.
Page 11 of 19
were filed between January 2014 and August 2015 in the Eastern District of North
Carolina. In each, she listed her address as being in NC.12 The Court takes judicial
notice13 of these documents. Regardless of whether the information in the
documents regarding her addresses is true, Snow included them in the filings of
previous proceedings and attested to their truth under penalty of perjury.
As for the most recent NC case, in her affidavit (doc. 34), Snow avers she
travelled back to the state to visit her son and family, where she filed the August 24,
Brock & Scott PLLC, et al., Case No. 7:14-cv-28 (E.D.N.C.) (Doc. 25-7, 26-6); Marian Snow v.
Client Services, Inc., No. 5:15-cv-419 (E.D.N.C.) (Doc. 25-9, 26-7).
12
Snow had also filed suit in NC in January 2014, Snow v. Wells Fargo Bank, N.A., et al., No.
7:14-CV-2 (E.D.N.C.), in which she attached an affidavit testifying that her principal dwelling
was in Top Sail Beach, NC. (Doc. 25-1 at 25.) In her affidavit submitted to this Court (doc. 34) in
support of her oppositions, Snow testified that the Top Sail property was only a vacation rental
property and she never stayed there longer than two weeks each year only visiting for sporadic
weekends.(Doc. 34 at 2.) This inconsistency is revealing, and is not the only one the Court has
found. Snow is estopped from from changing positions according to the exigencies of the
New Hampshire v. Maine, 532 U.S. 742, 749 (2001); see also Robinson v. Tyson Foods,
Inc., 595 F.3d 1269, 1273 (11th Cir. 2010) Specifically, ju
prevent
a party from asserting a claim in a legal proceeding that is inconsistent with a claim taken by the
party in a previous preceding. (citing 18 Moore's Federal Practice § 134.30 (3d ed. 2008))).
13
Universal Express, Inc. v. SEC
take judicial notice of a complaint filed in another court because it qualifies as a public record)
(citing Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1277-78, 1280 (11th Cir. 1999)); Klopfenstein v.
Deutsche Bank Sec., Inc.
16 n. 5 (11th Cir. 2014) (same); see also Fed. R.
Evid. 201.
Page 12 of 19
2015 lawsuit in the Eastern District of North Carolina. She alleges that she listed a
NC address because she had
because the case
involved actions occurring between September 2012 and January 2013 during
which she was in NC.
mailing address and contact when filing.
In addition, Snow filed an unlawful detainer case in Tuscaloosa district court
on January 5, 2015
five months after she is purported to have exited NC
listing
her address as being in Wilson, NC. (Doc. 25-11.) When Snow voluntarily
dismissed that case on March 9, 2015
had stopped receiving the text messages
almost seven months after she alleges she
she continued to list Wilson, NC as her
address in court filings. (Doc. 25-12.) It was not until August 22, 2016 when Snow
filed another unlawful detainer action that she listed her address as being in
Tuscaloosa, Alabama. (Doc. 25-13.)
In her affidavit, Snow testifies that in 2009 she went to NC to allow her
autistic son to attend high school there, which also allowed for her to be near her
eldest son and his family who reside in Wilson, NC. She lived at various NC
Drive in Wilson, NC. Snow was in NC during much of the time when she began
Page 13 of 19
receiving the text messages, but alleges she only remained there until August 2014.
She calculates that time period to be a minority (40%) of the total time the messages
were sent
stating that at no time after August 2014 was she located in NC when
she received the text messages. Tellingly, Snow does not allege where she was
when she received the other 60% of the texts. Snow says she moved
out of NC after her lease in Zebulon, NC expired at the end of
July 2014 and t
in Tuscaloosa County, Alabama. Snow insists that at that time Tuscaloosa was her
domicile, residence and the place she intended to remain; but the affidavit is vague
and gives the Court no definitive date upon which her domicile in Alabama began.
Snow asserts in her oppositions that
and her cellular telephone were
indeed in Alabama when a substantial portion of [the] tortious conduct was
oc. 33 at 29.) However, in neither her amended complaint nor her
affidavit does Snow ever affirmatively aver that she received even a single text
message while she was in Alabama.
conclusory jurisdictional arguments she makes in her responses. Furthermore,
Page 14 of 19
,14 and nothing in the amended
complaint or her affidavit suggests she ever apprised Defendants of her alleged
presence in Alabama. Consequently, no Defendant can be said to have targeted
Alabama. Even crediting the affidavit and considering the facts as alleged in the
amended complaint in a light most favorable to Snow, the Court does not find it
possesses specific jurisdiction over either GE or the Dell defendants.
Because the Court has found no contacts sufficient to subject either the Dell
defendants or GE to personal jurisdiction in Alabama, the Court need not evaluate
whether jurisdiction over them would be fair. See Hanson v. Denckla, 357 U.S. 235,
254 (1958); see also World-Wide Volkswagen Corp
defendant would suffer minimal or no inconvenience from being forced to litigate
before the tribunals of another State; even if the forum State has a strong interest in
applying its law to the controversy; even if the forum State is the most convenient
14
particular state that violate the TCPA sufficient to satisfy the [purposeful direction] test for a
court of that state to exercise personal jurisdiction over the defe
Keim v. ADF
MidAtlantic, LLC, 199 F. Supp. 3d 1362, 1370 (S.D. Fla. 2016) (collecting cases); Luna v. Shac,
LLC, No. C14-00607 HRL, 2014 WL 3421514, at *4 (N.D. Cal. July 14, 2014)
defendant] intentionally sent unsolicited text messages advertising [itself] to California cell
phone numbers, which conduct gave rise to this litigation, it purposefully directed its activity to
California such that [the defendant] is reasonably subject to the personal jurisdiction of [the
court] .
Page 15 of 19
location for litigation, the Due Process Clause, acting as an instrument of interstate
federalism, may sometimes act to divest the State of its power to render a valid
the Dell defendants and
GE does not comport with due process and, as such, Defendants cannot be made to
defend this action in Alabama.
b. VENUE
istrict in which any
defendant resides, if all defendants are residents of the State in which the district is
located; (2) a judicial district in which a substantial part of the events or omissions
giving rise to the claim occurred, or a substantial part of property that is the subject
of the action is situated; (3) if there is no district in which an action may otherwise
be brought as provided in this section, any judicial district in which any defendant
s personal jurisdiction with respect to such action.
U.S.C. § 1391 (b). A corporation
judicial district in which such defendant
jurisdiction with respect to the civil action in question
personal jurisdiction. The events
s personal
28 U.S.C. § 1391(c)(2). As
as alleged in the
Page 16 of 19
amended complaint did not occur in Alabama and no defendant resides in Alabama.
As such, venue is improper in this district.
c. TRANSFER OF CLAIMS OR AMENDMENT
In her responses in opposition, Snow requests that if the Defendants are not
subject to jurisdiction in Alabama, which they are not, that in the alternative, the
Court either allow her to amend her complaint to state claims, or that the Court
transfer the case to the proper district in lieu of dismissal pursuant to 29 U.S.C. §
1404(a).15 Pursuant to 28 U.S.C. § 1631, i
jurisdiction, the court shall, if it is in the interest of justice, transfer such action or
appeal to any other such court in which the action or appeal could have been
brought at the time it was filed or noticed . . . . In its reply, GE establishes that if
Snow makes a request to transfer pursuant to 28 U.S.C. § 1406(a), 16 it would not
object to transfer to the Eastern District of North Carolina. (Doc. 36 at 9.) The Dell
15
29 U.S.C. § 1404 concerns alternative methods of withdrawal liability payments. The
Court assumes Snow intended to cite 28 U.S.C. § 1404 which sets forth procedures for changes
of venue and transfers.
16
(a) The district court of a district in which is filed a case laying venue in the wrong
division or district shall dismiss, or if it be in the interest of justice, transfer such case to any
district or division in which it could have been brought.
Page 17 of 19
Pursuant to 28 USC. §
1658(a), the statute of limitations for violations of 47 U.S.C. § 227 is four years
after the cause of action accrues.
, the Court
finds it would be in the interest of justice to transfer her claims instead of
dismissing them.
C.
CONCLUSION17
For the reasons stated above,
motions (docs. 25 & 26) are due
to be granted in part and denied in part. The Court finds that neither GE nor the
Dell defendants can be made to defend this case in Alabama and the Northern
District of Alabama is not the proper venue for this action. The case is therefore
due to be transferred to the Eastern District of North Carolina. Thus, Snow is
DIRECTED to file a motion to transfer this action pursuant to 28 U.S.C. § 1406(a)
within fifteen (15) days of the entry of this Memorandum of Opinion. If Snow does
not file such a motion to transfer within the time period stated, the Court will
17
Because the Court has concluded it lacks jurisdiction over the Defendants, it does not
reach the merits of Sn
on claims.
proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist,
the only function remaining to the court is that of announcing the fact and dismissing the cause
In re Bayou Shores SNF, LLC, 828 F.3d 1297, 1329 (11th Cir. 2016) (citing Steel Co. v. Citizens for
a Better Env t, 523 U.S. 83, 94 (1998) (quoting Ex parte McCardle, 74 U.S. 506, 514 (1868))).
Page 18 of 19
DISMISS this action without prejudice. A separate Order will be entered with this
Opinion.
DONE and ORDERED on August 3, 2018.
_____________________________
L. Scott Coogler
United States District Judge
190685
Page 19 of 19
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