Rutherford v. Zoom Tan, Inc. et al

Filing 82

OPINION AND ORDER granting 41 Defendant Club Texting, Inc.'s Motion to Dismiss Plaintiff's First Amended Complaint. The 33 First Amended Complaint is dismissed without prejudice against Club Texting, Inc. for lack of personal jurisdiction. See Opinion and Order for details. The Clerk shall terminate Club Texting, Inc. as a defendant on the docket. Signed by Judge John E. Steele on 8/5/2013. (AAA)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
SHAINA A. RUTHERFORD, Individually,
and
on
Behalf
of
All
Others
Similarly Situated,
Plaintiffs,
vs.

Case No.

2:12-cv-509-FtM-29DNF

ZOOM TAN, INC.; ZOOM TAN, LLC; ZOOM
TAN FRANCHISING, LLC; and CLUB
TEXTING, INC. d/b/a EZ TEXTING,
INC.,
Defendants.
___________________________________
OPINION AND ORDER
This matter comes before the Court on Defendant Club Texting,
Inc.’s Motion to Dismiss Plaintiff’s First Amended Complaint (Doc.
#41) filed on November 16, 2012.

Plaintiff filed a Response in

Opposition (Doc. #46) on December 7, 2012.
defendant filed a Reply (Doc. #51).

On January 22, 2013,

For the reasons set forth

below, the motion is granted.
I.
On

October

26,

2012,

plaintiff

Shaina

A.

Rutherford

(Rutherford), individually, and on behalf of all others similarly
situated, filed a one-count First Amended Complaint (Doc. #33)
against

defendants

Zoom

Tan,

LLC,

Zoom

Tan,

Inc.,

Zoom

Tan

Franchising, LLC (Zoom Tan), and Club Texting, Inc. d/b/a EZ
Texting, Inc. (Club Texting) for violations of the Telephone
Consumer

Protection

Act,

47

U.S.C.

§

227,

et

seq.

(TCPA).

Plaintiff alleges that Club Texting, on behalf of Zoom Tan, made
unsolicited text message calls to plaintiff and the putative class
members. (Doc. #33.) Plaintiff also alleges that she received the
messages nearly every month since mid-2011; defendant Club Texting
made the calls using an auto-dialer that had the capacity to store,
produce, and dial telephone numbers using a random or sequential
number generator; and the messages did not include an unsubscribe
mechanism.

(Id.)

Defendant Club Texting moves to dismiss the First Amended
Complaint for lack of personal jurisdiction and failure to state a
claim. (Doc. #41.) In the alternative, Club Texting requests that
the issues relating to Club Texting should be referred to the
Federal

Communications

jurisdiction doctrine.

Commission
(Id.)

(FCC)

under

the

primary

Plaintiff argues to the contrary.

(Doc. #46.)
II.
“Jurisdiction to resolve cases on the merits requires both
authority over the category of claim in suit (subject-matter
jurisdiction)

and

jurisdiction),

so

authority
that

the

over

court’s

the

parties

decision

will

(personal
bind

them”

Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577 (1999); see also
Sinchem Int’l Co. Ltd. v. Malay. Int’l Shipping Corp., 549 U.S.
422, 430-31 (2007).

The parties do not dispute that the Court has

subject matter jurisdiction over this matter.

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Personal jurisdiction is a restriction on judicial power as a
matter of individual liberty, and “a party may insist that the
limitation be observed, or he may forgo that right, effectively
consenting to the court’s exercise of adjudicatory authority.”
Ruhrgas AG, 526 U.S. at 584.

Unless waived or forfeited,1 personal

jurisdiction is “an essential element of the jurisdiction of a
district court, without which the court is powerless to proceed to
an adjudication.”

Id. at 584 (citation and internal quotation

marks omitted).
The existence of personal jurisdiction is a question of law.
Diamond Crystal Brands, Inc. v. Food Movers Int’l, Inc., 593 F.3d
1249, 1257 (11th Cir. 2010); Oldfield v. Pueblo De Bahia Lora,
S.A., 558 F.3d 1210, 1217 (11th Cir. 2009).
court

in

Florida

may

exercise

personal

“A federal district
jurisdiction

over

a

nonresident defendant to the same extent that a Florida court may,
so long as the exercise is consistent with federal due process
requirements.” Licciardello v. Lovelady, 544 F.3d 1280, 1283 (11th
Cir. 2008).
Plaintiff

“bears

the

initial

burden

of

alleging

in

the

complaint sufficient facts to make out a prima facie case of
jurisdiction.”

United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274

(11th Cir. 2009).

A prima facie case is established if plaintiff

1

Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de
Guinee, 456 U.S. 694, 703-04 (1982).
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alleges enough facts to withstand a motion for directed verdict or
judgment as a matter of law. PVC Windoors, Inc. v. Babbitbay Beach
Constr., N.V., 598 F.3d 802, 810 (11th Cir. 2010); SEC v. Carrillo,
115 F.3d 1540, 1542 (11th Cir. 1997).

If defendant challenges

jurisdiction by submitting affidavit evidence making a specific
factual denial based on personal knowledge, the burden shifts back
to the plaintiff to produce evidence supporting jurisdiction.
Mazer, 556 F.3d at 1274.

Plaintiff bears the ultimate burden of

establishing that personal jurisdiction is present.
F.3d at 1217.

Oldfield, 558

“Where the plaintiff’s complaint and supporting

evidence conflict with the defendant’s affidavits, the court must
construe all reasonable inferences in favor of the plaintiff.”
Meier v. Sun Int'l Hotels, Ltd., 288 F.3d 1264, 1269 (11th Cir.
2002).

“If such inferences are sufficient to defeat a motion for

judgment as a matter of law, the court must rule for the plaintiff,
finding that jurisdiction exists.”

PVC Windoors, 598 F.3d at 810.

“A federal court sitting in diversity undertakes a two-step
inquiry in determining whether personal jurisdiction exists: the
exercise of jurisdiction must (1) be appropriate under the state
long-arm statute and (2) not violate the Due Process Clause of the
Fourteenth Amendment to the United States Constitution.

When a

federal court uses a state long-arm statute, because the extent of
the statute is governed by state law, the federal court is required
to construe it as would the state’s supreme court.”

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Diamond

Crystal Brands, 593 F.3d at 1258 (internal citations and quotation
marks omitted).

The Court must determine the first step before

proceeding to the second.

PVC Windoors, 598 F.3d at 807–08.

The reach of the Florida long arm statute is a question of
Florida law.

Mazer, 556 F.3d at 1274.

“A Florida court conducts

a two-step inquiry when determining whether jurisdiction under
Florida’s long-arm statute is proper in a given case.

Initially,

it must determine whether the complaint alleges jurisdictional
facts sufficient to invoke the statute.

If so, the court must then

examine whether the defendant has sufficient ‘minimum contacts’
with Florida in order to satisfy due process requirements.” Canale
v. Rubin, 20 So. 3d 463, 465 (Fla. 2d DCA 2009)(citing Execu–Tech
Bus. Sys., Inc. v. New Oji Paper Co., 752 So. 2d 582, 584 (Fla.
2000)).

The due process analysis itself involves a two-part

inquiry in which the Court first considers whether defendant
engaged in

minimum

considers

whether

defendant

would

contacts
the

offend

substantial justice.

with

exercise

of

traditional

the state

of

Florida, then

personal

jurisdiction

notions

of

fair

play

over
and

Madara v. Hall, 916 F.2d 1510, 1515–16 (11th

Cir. 1990).
III.
Florida’s long-arm statute provides in relevant part: “[a]
defendant who is engaged in substantial and not isolated activity
within this state, whether such activity is wholly interstate,

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intrastate, or otherwise, is subject to the jurisdiction of the
courts of this state, whether or not the claim arises from that
activity.”

Fla. Stat. § 48.193(2).2

“The reach of this provision

extends to the limits on personal jurisdiction imposed by the Due
Process Clause of the Fourteenth Amendment.”
F.3d 842, 846 (11th Cir. 2010).

Fraser v. Smith, 594

“In order to establish that

[defendant] was engaged in substantial and not isolated activity in
Florida,

the

activities

of

[defendant]

must

be

considered

collectively and show a general course of business activity in the
State for pecuniary benefit.”
Crystal

Palace

Casino,

447

Stubbs v. Wyndham Nassau Resort &
F.3d

1357,

1361

(11th

Cir.

2006)(citation and internal quotation marks omitted).
The First Amended Complaint alleges that Club Texting is a New
York corporation with its principal place of business in New Jersey
which has submitted itself to the jurisdiction of the court by
“engag[ing] in substantial and non-isolated activity by soliciting
and engaging in business in this District and throughout the State
of Florida.”

(Doc. #33, ¶ 14.)

The First Amended Complaint also

alleges that Club Texting: (1) “ma[de] unsolicited spam text
message calls en masse on behalf of its continuous and systematic
general business contacts, such as Zoom Tan,” (id.); (2) “Defendant
Club Texting earns substantial revenue from Defendants Zoom Tan in

2

The First Amended Complaint only alleges that the Court has
general jurisdiction over Club Texting.
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Florida for making en masse unsolicited text message calls on their
behalf, targeting potential customers or friends of potential
customers

for

each

of

Zoom

Tan’s

twenty-eight

(28)

Florida

locations,” (id.); (3) “[b]y engaging in the text message marketing
scheme throughout Florida . . . it is reasonable for Defendant Club
Texting to expect to be haled into Court in this District, and
doing so does not offend traditional notions of fair play and
substantial

justice,”

(Doc.

#33,

¶

15),

(4)

“the

en

masse

unsolicited spam text message calls made by Club Texting were
directed, in substantial part, at Florida residents who may be
potential

customers

of

Zoom

Tan’s

twenty-eight

(28)

Florida

locations and were harmed exclusively or primarily in Florida by
receiving wireless spam,”

(Doc. #33, ¶ 17).

Club Texting asserts that it is not engaged in substantial and
not isolated activity within the State of Florida.

In support,

defendant provides the affidavit of Shahriyar Neman (Doc. #41-4) in
which he states the following:
Club Texting does not intentionally do business in Florida;
Club Texting has not been qualified to do business in Florida, nor
is it required to do so; in Florida, Club Texting does not have
software and computer facilities, a registered agent, subsidiaries,
officers

or

directors,

employees,

offices,

retail

stores,

authorized dealers, agents, telephone listings, a mailing address,
bank accounts, tangible personal or real property, or a lease; Club

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Texting does not direct its advertising specifically toward Florida
residents or advertise in any publications directed to Florida
residents; Club Texting’s agents and employees have not visited
Florida for soliciting business or advertising services; Club
Texting has not availed itself of any courts in Florida or other
governmental benefits relating to Florida; Club Texting’s website
is not directed at Florida and Club Texting does not track or
easily know where a particular customer is located and does not ask
for that information; Club Texting’s contract with its customers,
including Zoom Tan, calls for arbitration in New York and calls for
the application of New York law; Club Texting does not provide
lists of telephone numbers to its customers, nor does it review the
lists of telephone numbers developed by its customers; Club Texting
does not control the content, timing, or direction of the text
messages its customers, including Zoom Tan, send.

(Doc. #41-4.)

In response, plaintiff asserts that the alleged facts in her
First Amended Complaint demonstrate that Club Texting “has engaged
substantial

and

not

isolated

business

in

Florida”

and

“was

conducting, engaging in, or carrying on a business or business
venture

in

Florida

by

sending

thousands

of

unsolicited

messages to promote Zoom Tan customers in Florida.”
6.)

text

(Doc. #46, p.

Plaintiff fails to produce any other evidence supporting

jurisdiction.

(Id.)

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Because Mr. Neman’s affidavit shifted the burden back to
plaintiff to produce evidence supporting jurisdiction, Mazer, 556
F.3d at 1274, and plaintiff failed to produce such evidence,
personal jurisdiction pursuant to Fla. Stat. § 48.193(2) has not
been established.3

Accordingly, the motion to dismiss for lack of

personal jurisdiction is granted.
Accordingly, it is now
ORDERED:
1.

Defendant

Club

Texting,

Inc.’s

Motion

to

Dismiss

Plaintiff’s First Amended Complaint (Doc. #41) is GRANTED and the
First Amended Complaint (Doc. #33) is DISMISSED WITHOUT PREJUDICE
against

defendant

Club

Texting,

Inc.

for

lack

of

personal

jurisdiction.
2.

The

Clerk

shall

terminate

Club

Texting,

Inc.

as

a

defendant on the docket.
DONE AND ORDERED at Fort Myers, Florida, this 5th day of
August, 2013.

3

Because
plaintiff
has
failed
to
establish
personal
jurisdiction pursuant to Fla. Stat. § 48.193(2), the Court need not
address Club Texting’s arguments that the exercise of general
jurisdiction would violate due process, the First Amended Complaint
fails to state a claim, and the issues relating to Club Texting
should be referred to the FCC under the primary jurisdiction
doctrine.
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Copies: Counsel of record

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