Ryburn v. Managed Care Inc et al

Filing 42

ORDER denying defendants' 25 , 28 , 30 , 32 Motions to dismiss. Signed by Chief Judge D. P. Marshall Jr. on 3/31/2021. (jak)

IN THE UNITED ST ATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
ZACH RYBURN
v.

PLAINTIFF
No. 4:20-cv-1516-DPM

MANAGED CARE, INC., dfb/a Galaxy
Health Network; NATIONAL
INDIVIDUAL INSURANCE AGENCY,
LLC; LANDON JORDAN, Individually;
and HAROLD L. BROCK, JR.,
Individually

DEFENDANTS

ORDER
1. This case stems from a thoroughly modern harm: robocalls.

Ryburn claims that Managed Care, National Individual Insurance
Agency, Jordan, and Brock coordinated to make forty-eight
telemarketing calls to him that violated the federal Telephone
Consumer Protection Act and Arkansas's consumer protection laws.
Defendants seek to dismiss Ryburn's complaint. Jordan and Brock say
that the Court lacks personal jurisdiction over them, and all defendants
argue that Ryburn fails to state a claim. The Court accepts the pleaded
facts as true. Trone Health Services, Inc. v. Express Scripts Holding Co., 974
F.3d 845, 850 (8th Cir. 2020).

2. Arkansas law extends personal jurisdiction as far as the Due

Process Clause allows.

ARK. CODE ANN. § 16-4-l0l(B). The deep

question is whether it's fair and reasonable, considering all the facts
with jurisdictional weight, to require Jordan and Brock to defend this
action in a court sitting in Arkansas.

International Shoe Co. v.

Washington, 326 U.S. 310, 316 (1945). Jordan and Brock aren't subject to
general personal jurisdiction. They' re both Texans, and the facts don't
show that Arkansas is akin to a second home for either man. Daimler

AG v. Bauman, 571 U.S. 117, 137-39 (2014). But, they are subject to
specific personal jurisdiction. Ryburn alleges that Jordan and Brock
played a leading role in placing the offending calls that he received in
Arkansas.

He says they knew about the violations and directed

employees to commit them. Jordan and Brock thus purposefully aimed
(or caused to be aimed) dozens of illegal phone calls at an Arkansawyer
within the state's borders and caused him predictable harm. They have
been haled into court to defend against those allegations only. All told,
there's a sufficient connection between Jordan and Brock's actions,
Arkansas, and Ryburn' s claim to establish specific personal jurisdiction
over Jordan and Brock in this case. Whaley v. Esebag, 946 F.3d 447, 45152 (8th Cir. 2020); see also Ford Motor Co. v. Montana Eighth Judicial

District Court, - S. Ct. - , 2021 WL 1132515, at *4-5 (25 March 2021).
3. Under the Telephone Consumer Protection Act, it is unlawful
to make calls to an individual's cell phone using an automatic dialing
system or artificial or prerecorded voice without the recipient's express
prior consent, 47 U.S.C. § 227(b)(l)(A), or to make telephone

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solicitations to a number listed on the national do not call registry, 47
U.S.C. § 227(c)(3)(F). Each defendant says Ryburn hasn't alleged that it
made or initiated any of the calls. That's not the whole story. "Health
Savings Network" made the sales calls, but Ryburn pleads that this is a
fictitious organization behind which one or all of the defendants are
hiding. Ryburn alleges that the defendants worked in concert, knew of
each other's actions, directed employees to make the offending calls,
and ensured that Managed Care's products were marketed during
them. At a minimum, Ryburn states a plausible claim for defendants'
violation of the Telephone Consumer Protection Act under an agency
theory. Golan v. FreeEats .com, Inc., 930 F.3d 950, 960-61 (8th Cir. 2019).
Discovery will illuminate each party's role, if any, in the alleged
telemarketing scheme.
4. Arkansas law prohibits the deceptive sale or promotion of
health-related cash discount cards.

ARK. CODE ANN. § 4-106-201.

Defendants again say Ryburn has failed to allege any facts indicating
that they or their agents called or emailed him about medical discount
cards.

The agency theory is one answer to this argument, and it

provides a basis for Ryburn's claims. Plus, ARK. CODE ANN. § 4-106201 doesn't have the same "initiating the call" requirement that the
Telephone Consumer Protection Act does. Ryburn pleads that each
defendant had a hand in the calls, and that the calls marketed,
advertised, and attempted to sell Managed Care's medical discount

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cards without making the specific disclosures required by Arkansas
law. That's a plausible state law claim against Managed Care, National
Individual Insurance Agency, Jordan, and Brock.

* * *
Defendants' motions to dismiss, Doc. 25, 28, 30, & 32, are denied.
So Ordered.

D .P. Marshall Jr.
United States District Judge

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