Keim v. ADF Midatlantic, LLC et al

Filing 162

ORDER denying 100 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Kenneth A. Marra on 8/10/2016. (ir)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 12-80577-CIV-MARRA
BRIAN KEIM, an individual, on behalf of himself
and all others similarly situated,
Plaintiff,
vs.
ADF MIDATLANTIC, LLC, a foreign
limited liability company, et al.,
Defendants,
___________________________________/
OPINION AND ORDER
This matter is before the Court on Defendants ADF MidAtlantic, LLC, ADF Pizza I, LLC,
and ADF PA, LLC’s (collectively, the “Moving Defendants”) Motion to Dismiss for Lack of
Personal Jurisdiction (DE 100). For the following reasons, the motion is denied.
I. Background
Defendant Pizza Hut, Inc. (“Pizza Hut”), which has not challenged the Court’s personal
jurisdiction, is a restaurant chain and international franchise. (DE 97 ¶ 17.) Defendant American
Huts, Inc., which also has not challenged personal jurisdiction, and the three Moving Defendants
own and operate Pizza Hut franchises in various states and hold themselves out to the public as one
entity called “ADF Companies.” (DE 97 ¶¶ 7–11.) Of the Defendants that comprise the ADF
Companies, only American Huts, Inc. owns and operates Pizza Hut franchises in Florida (in addition
to other states). (DE 97 ¶¶ 7–10.) The Moving Defendants own and operate Pizza Hut franchises and
other restaurants only in states other than Florida. (DE 97 ¶¶ 7, 9–10.) The ADF Companies jointly
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market their stores. (DE 97 ¶ 14.) On their jointly maintained website to market their stores, the ADF
Companies list at least 24 ADF Company Pizza Hut stores in Florida, which presumably all belong
to Defendant American Huts, Inc. (DE 97 ¶ 12.) The ADF Companies also employ a single
marketing director for all of their stores. (DE 97 ¶ 14).
In 2009, the ADF Companies hired text-message marketing company Songwhale, LLC
(“Songwhale”) to promote the Pizza Hut brand. (DE 97 ¶¶ 18, 31.) Songwhale implemented a
marketing program that encouraged people to text their friends’ cell phone numbers to Songwhale
in exchange for Pizza Hut coupons. (DE 97 ¶ 32.) Songwhale’s software program automatically
stored these phone numbers in its text messaging database. (DE 97 ¶ 33.) Songwhale’s “dialing
system” then, in many instances months later, automatically sent text messages with Pizza Hut
advertisements en masse to the numbers stored in its database. (DE 97 ¶ 35.)
Later, the ADF Companies hired text-message marketing company Cellit, LLC (“Cellit”) to
launch a second national text-message advertising campaign. (DE 97 ¶¶ 19, 42.) Cellit sent text
messages with Pizza Hut advertisements on behalf of both Pizza Hut and the ADF Companies to all
the cell phone numbers that Songwhale previously collected. (DE 97 ¶ 42.) The purpose of these text
messages was to promote the Pizza Hut brand across the United States. (DE 97 ¶ 42.)
Plaintiff Brian Keim, a Florida resident, began receiving unwanted text messages containing
Pizza Hut advertisements from Songwhale’s and Cellit’s short codes1 in February 2011. (DE 97 ¶¶
6, 47.) So, he filed a class-action lawsuit against Pizza Hut and the ADF Companies alleging

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Plaintiff explains, “Most commercial SMS messages are sent from ‘short codes’ (also known as
‘short numbers’), which are special cellular telephone exchanges, typically only five or six digit
extensions, that can be used to address SMS messages to mobile phones.” (DE 1 ¶ 24.) According
to Plaintiff, a short code “conclusively reveals the originator of the SMS message.”(DE 1 ¶¶25.)
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violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 (2012). The
Moving Defendants moved to dismiss for lack of personal jurisdiction, and the Court allowed for
an extended jurisdictional discovery period. The motion is now ripe for review.
II. Legal Standard
On a motion to dismiss for lack of personal jurisdiction, the plaintiff bears the initial burden
of “alleg[ing] sufficient facts to make out a prima facie case of jurisdiction” over the nonresident
defendant. Posner v. Essex Ins. Co., 178 F.3d 1209, 1214 (11th Cir. 1999) (per curiam). If the
plaintiff sufficiently alleges a prima facie case of jurisdiction, the defendant must raise “through
affidavits, documents or testimony, a meritorious challenge to personal jurisdiction.” Internet
Solutions Corp. v. Marshall, 557 F.3d 1293, 1295 (11th Cir. 2009) (per curiam) (quoting
Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 627 (11th Cir. 1996)). “If the defendant does so,
‘the burden shifts to the plaintiff to prove jurisdiction by affidavits, testimony or documents.’” Id.
(quoting Sculptchair, 94 F.3d at 627). The court must accept the facts alleged in the complaint as
true to the extent they are uncontroverted by the defendant’s affidavits. Madara v. Hall, 916 F.2d
1510, 1514 (11th Cir. 1990). Where the plaintiff’s evidence and defendant’s evidence conflict, all
reasonable inferences must be construed in favor of the plaintiff. Stubbs v. Wyndham Nassau Resort
& Crystal Palace Casino, 447 F.3d 1357, 1360 (11th Cir. 2006).
III. Discussion
Because Keim’s claim is based on the TCPA, which is silent regarding service of process,
state law informs whether the Court has personal jurisdiction over the Moving Defendants.
Sculptchair, 94 F.3d at 626–27; Pesaplastic, C.A. v. Cincinnati Milacron Co., 750 F.2d 1516, 1521
(11th Cir. 1985). The Court engages in a two-part inquiry to determine whether it has personal
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jurisdiction over a nonresident defendant. First, it determines whether the forum state’s long-arm
statute authorizes an exercise of personal jurisdiction. Robinson v. Giarmarco & Bill, P.C., 74 F.3d
253, 256 (11th Cir. 1996). Second, it determines whether that exercise comports with the Due
Process Clause of the Fourteenth Amendment. Id. Both prongs must be satisfied for the court to have
personal jurisdiction over the defendant. Id.
A. Long-Arm Statute
Florida’s long-arm statute authorizes an exercise of personal jurisdiction where a claim arises
from a defendant “[c]ommitting a tortious act within this state.” Fla. Stat. § 48.193(1)(a)(2). TCPA
violations are tortious acts. Bagg v. UShealth Grp., Inc., No. 615CV1666ORL37GJK, 2016 WL
1588666, at *3 (M.D. Fla. Apr. 20, 2016); US Fax Law Ctr., Inc. v. iHire, Inc., 362 F. Supp. 2d
1248, 1252 (D. Colo. 2005); Weber v. U.S. Sterling Sec., Inc., 924 A.2d 816, 825 (Conn. 2007). And
a tortfeasor’s “physical presence in Florida is not required to obtain personal jurisdiction” under this
provision. Sierra Equity Grp., Inc. v. White Oak Equity Partners, LLC, 650 F. Supp. 2d 1213, 1222
(S.D. Fla. 2009); see also Wendt v. Horowitz, 822 So. 2d 1252, 1260 (Fla. 2002). Instead,
committing a tortious act within Florida “can occur by making telephonic, electronic, or written
communications into this State, provided that the tort alleged arises from such communications.”
Wendt, 822 So. 2d at 1253; see also Acquadro v. Bergeron, 851 So. 2d 665, 671 (Fla. 2003). Thus,
Florida’s long-arm statute is satisfied as to a TCPA claim that arises from a non-resident defendant
making a telephonic communication into Florida.
Here, the alleged tort arises from the Moving Defendants allegedly sending text messages

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into Florida.2 In a prior order, the Court denied Defendants’ motion to dismiss for failure to state a
claim, (DE 114), and thus resolved the “threshold” questions of “whether the allegations of the
complaint state a cause of action” and “whether the alleged cause of action arises from the[]
communications” at issue. Wendt, 822 So. 2d at 1260. The Court reaffirms its decision that Keim
adequately states a TCPA claim based on the text messages he received in Florida as a result of
Defendants’ text-message marketing campaigns.
The Court rejects the Moving Defendants’ argument that the text messages at issue cannot
give rise to personal jurisdiction under the long-arm statute. In a footnote, the Moving Defendants
argue that the text-messages cannot serve as a basis for personal jurisdiction “because they do not
own or operate any Pizza Hut locations in Florida” and it would be “illogical to think that nonFlorida Defendants would have had anything to do with text messages sent to Florida residents when
they would have nothing to gain from such activities.” (DE 100 at 10 n.4.) This argument conflates
the “tortious acts” provision of the long-arm statute with another, independent basis for
jurisdiction—“Operating, conducting, engaging in, or carrying on a business or business venture in
this state or having an office or agency in this state.” Fla. Stat. § 48.193(1)(a)(1). Whether the
Moving Defendants operate restaurants in Florida may be relevant to this separate provision of the
long-arm statute, but it is irrelevant to whether the alleged tort arises from a telephonic
communication they made into Florida. Similarly, whether the Moving Defendants benefitted from

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Technically, Keim only alleges that he is a Florida resident and “is the subscriber to the cellular
telephone which received unwanted text message spam,” but fails to allege his location at the time
he received the text messages. (DE 97 ¶ 6.) Nevertheless, the Moving Defendants do not dispute that
Keim received the text messages in Florida. (DE 100 at 13) (arguing that “Keim’s allegations
relating to the text messages he supposedly received by fortuity in Florida cannot serve as the basis
for jurisdiction”) (emphasis added). As the Moving Defendants themselves infer from Keim’s
allegations that Keim received the text messages in Florida, the Court will not disturb that inference.
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the text messages is irrelevant to the inquiry.3
Contrary to the Moving Defendants’ argument, the text messages do “implicate” them
because the text messages were allegedly sent on their behalf. As the Court explained in its prior
order, the TCPA incorporates general common law principles of agency and vicarious liability, and
a principal may be held liable under the TCPA for the acts of an agent. (DE 114 at 15–16) (citing
In the Matter of the Joint Petition Filed by Dish Network, LLC, the United States of Am., & the
States of California, Illinois. N. Carolina, & Ohio for Declaratory Ruling Concerning the Tel.
Consumer Prot. Act (Tcpa) Rules, 28 F.C.C. Rcd. 6574, 6574, 6586–87 (2013)).4 Keim alleges that
the separate ADF Companies jointly hired Songwhale and Cellit to promote the Pizza Hut brand, and
to do so Songwhale and Cellit implemented the marketing programs that resulted in the allegedly
offending text messages. Thus, Keim sufficiently pleads that Songwhale and Cellit acted as each
ADF Company’s agent, and accordingly each ADF Company—including each Moving
Defendant—may be vicariously liable for Songwhale’s and Cellit’s alleged TCPA violations.
Because Keim alleged that Songwhale and Cellit acted as the Moving Defendants’ agents

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In any event, while sending a text message advertisement into Florida might not be likely to lead
the recipient to go to a Pizza Hut restaurant outside Florida, it is unfair to say the Moving Defendants
derived no benefit from the text messages at issue. It is reasonable to infer from the complaint’s
allegations that the Moving Defendants benefitted from pooling their resources together with an
owner of Florida Pizza Hut franchises and jointly engaging in a national text-messaging campaign
that included sending text messages to Florida phone numbers as well as phone numbers in states
where they own Pizza Hut restaurants. Indeed, one could reasonably argue that it would be
“illogical” for the Moving Defendants to engage in this joint marketing campaign if they really did
“have nothing to gain” from it.
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The Court must accept interpretations of the TCPA in FCC orders. Mais v. Gulf Coast Collection
Bureau, Inc., 768 F.3d 1110, 1119–21 (11th Cir. 2014). As the Eleventh Circuit explained in Mais,
the Communications Act of 1934 and the Hobbs Act work together to divest district courts of
jurisdiction to question interpretations of the TCPA in FCC orders. Id.
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when they sent the text messages at issue, those text messages are attributed to the Moving
Defendants as their own acts for the purpose of determining personal jurisdiction. Admittedly, in
Wendt, the Florida Supreme Court expressly did not answer whether personal jurisdiction under the
long-arm statute may be based on the allegedly tortious acts of a defendant’s agent. 822 So. 2d at
1260 n.8. Nevertheless, it is well-established that general agency principles apply when determining
personal jurisdiction. Meier ex rel. Meier v. Sun Int’l Hotels, Ltd., 288 F.3d 1264, 1272 (11th Cir.
2002); Taylor v. Phelan, 912 F.2d 429, 433 (10th Cir. 1990) (per curiam). And Florida’s long-arm
statute expressly incorporates this well-established principle by stating that the acts enumerated in
the statute, including committing a tortious act within the state, may give rise to personal jurisdiction
when done “personally or through an agent.” Fla. Stat. § 48.193(1)(a) (emphasis added); see also
Meir, 288 F.3d at 1270 & n.7; Wilcox v. Stout, 637 So. 2d 335, 337 (Fla. Dist. Ct. App. 1994).
As Keim alleges in his complaint that the Moving Defendants’ agents sent the text messages
that give rise to his TCPA claim, he establishes a prima facie case for personal jurisdiction under the
long-arm statute. None of the affidavits or other exhibits the Moving Defendants submitted rebuts
these allegations, so the long-arm statute is satisfied based on the allegations of the complaint alone.
See Madara, 916 F.2d at 1514 (“The district court must accept the facts alleged in the complaint as
true, to the extent they are uncontroverted by the defendant’s affidavits.”)5

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Because the tortious act provision of the long-arm statute is satisfied by the Moving Defendants
allegedly committing a tortious act within the state through an agent, it is unnecessary to address the
parties’ dispute as to whether the Moving Defendants and American Huts, Inc. were engaged in a
joint venture under Florida law. See Cross Match Techs., Inc. v. Crossresolve, LLC, No.
15-81310-CIV-MARRA, 2016 WL 3216541, at *4 n.4 (S.D. Fla. June 10, 2016) (“Cross Match must
only satisfy the long-arm statute once; it need not do so on multiple grounds.”).
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B. Due Process
The Court next turns to the due process inquiry. The Eleventh Circuit has set forth a threepart test to determine whether an exercise of specific personal jurisdiction comports with due
process.6 Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1355 (11th Cir. 2013). Under this
test, the Court must examine
(1) whether the plaintiff’s claims “arise out of or relate to” at least one of the
defendant’s contacts with the forum; (2) whether the nonresident defendant
“purposefully availed” himself of the privilege of conducting activities within the
forum state, thus invoking the benefit of the forum state’s laws; and (3) whether the
exercise of personal jurisdiction comports with “traditional notions of fair play and
substantial justice.”
Id. The first inquiry focuses on whether there is a “direct causal relationship between the defendant,
the forum, and the litigation.” Id. at 1355–56 (citation omitted). The second inquiry assesses whether
the defendant’s contacts with the state “(1) are related to the plaintiff’s cause of action; (2) involve
some act by which the defendant purposefully availed himself of the privileges of doing business
within the forum; and (3) are such that the defendant should reasonably anticipate being haled into
court in the forum.” Id. at 1357. The second inquiry may also be satisfied by an alternative “effects
test.” Id. at 1356. The third test considers “(1) ‘the burden on the defendant’; (2) ‘the forum’s interest
in adjudicating the dispute’; (3) ‘the plaintiff’s interest in obtaining convenient and effective relief’;
and (4) ‘the judicial system’s interest in resolving the dispute.’” Id. at 1358 (quoting Licciardello v.
Lovelady, 544 F.3d 1280, 1288 (11th Cir. 2008)).
The first inquiry is clearly satisfied. As discussed supra, Keim’s TCPA claims directly arise
from text messages that the Moving Defendants sent into this forum through their agents.

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Keim does not argue that the Moving Defendants are subject to general personal jurisdiction.
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Accordingly, there is a direct causal relationship between the Moving Defendants, the forum, and
the litigation.
The second inquiry is at least satisfied under the “effects test” first articulated in Calder v.
Jones, 465 U.S. 783, 789 (1984). Under this test, “a nonresident defendant’s single tortious act can
establish purposeful availment, without regard to whether the defendant had any other contacts with
the forum state,” so long as the tort “(1) was intentional; (2) was aimed at the forum state; and (3)
caused harm that the defendant should have anticipated would be suffered in the forum state.” Louis
Vuitton, 736 F.3d at 1356 (brackets and citation omitted).
Based on the allegations in the complaint, the ADF Companies jointly hired Songwhale and
Cellit to send text message advertisements that promoted the Pizza Hut brand, rather any specific
Pizza Hut restaurant, in a manner that was not limited to any ADF Company’s specific geographic
region. (DE 97 ¶¶ 32, 39, 40, 42, 47.) This necessarily included sending text messages to Florida cell
phones, including Keim’s. Indeed, it is reasonable to infer that Florida cell phones were expressly
contemplated as one of the ADF Companies owns multiple Pizza Hut restaurants in Florida. While
Songwhale’s sending of text messages was done automatically by a dialing system, it is sufficient
that the system collected Florida phone numbers and sent text messages to those numbers.
Furthermore, the Cellit campaign was even more purposeful because the ADF Companies, including
the Moving Defendants, provided all the phone numbers that Songwhale collected, including Florida
phone numbers, to Cellit for its text-messaging campaign. Finally, it is reasonable to anticipate that
harm from a TCPA violation arising from a call or text message to a Florida phone number would
be suffered in Florida. Indeed, multiple courts have found calls or text messages to a phone number
affiliated with a particular state that violate the TCPA sufficient to satisfy the effects test for a court
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of that state to exercise personal jurisdiction over the defendant. See Ott v. Mortgage Inv’rs Corp.
of Ohio, 65 F. Supp. 3d 1046, 1057 (D. Or. 2014); Luna v. Shac, LLC, No. C14-00607 HRL, 2014
WL 3421514, at * 3–4 (N.D. Cal. July 14, 2014) (collecting cases).
Arguing that Keim’s receipt of text message in Florida is “random” and “fortuitous,” the
Moving Defendants raise the hypothetical of Keim, a Florida resident, traveling to California,
receiving a text message there, and then attempting to subject the Moving Defendants to the
jurisdiction of a California court. The Court need not address that hypothetical, however, because
those are not the facts of this case. The Moving Defendants should have reasonably anticipated that
sending the allegedly TCPA-violating text messages to a Florida resident’s Florida cell phone would
cause harm in Florida. See Ott, 65 F. Supp. 3d at 1057 (“The individual defendants respond first that,
in the era of cellular telephones, not every telephone number with an Oregon area code belongs to
a person located in Oregon. Although true, many telephone numbers with an Oregon area code in
fact are located in Oregon, such that the individual defendants knew or should have known that the
telemarketing scheme was aimed at persons in Oregon.”); Luna, 2014 WL 3421515, at *3 (rejecting
argument based on “inherent mobility of cell phones” because “express aiming” requirement was
met based on fact that the alleged harm was “likely” to be suffered in California by sending text
messages to cell phones with California area codes). And here the alleged harm actually occurred
in Florida. The Court thus expresses no opinion on whether jurisdiction would be proper in the
Moving Defendants’ hypothetical.
Finally, the exercise of personal jurisdiction over the Moving Defendants comports with
traditional notions of fair play and substantial justice. The Moving Defendants’s argument that they
“would be burdened if they were made to travel to Florida to defend this action,” (DE 100 at 16), is
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conclusory. And, in any event, “modern methods of transportation and communication reduce this
burden significantly.” Robinson, 74 F.3d at 259. The state of Florida has an interest in adjudicating
a dispute regarding an intentional tort harming one of its own residents. See Licciardello, 544 F.3dat
1288. Also, Keim’s interest in obtaining convenient and effective relief also favors an exercise of
jurisdiction. The Court already has undisputed jurisdiction over two of the defendants, so a
declination of jurisdiction over the Moving Defendants would require Keim to litigate the same
claim in multiple forums. For the same reason, the interstate judicial system’s interest in obtaining
the most efficient resolution of controversies weighs in favor of exercising jurisdiction, and the
Moving Defendants concede this factor supports an exercise of jurisdiction.
Again, none of the affidavits or other exhibits the Moving Defendants submitted rebuts the
allegations supporting an exercise of jurisdiction, so the due process inquiry is also satisfied based
on the allegations of the complaint alone.
IV. Conclusion
Accordingly, it is hereby ORDERED AND ADJUDGED that Defendants ADF MidAtlantic,
LLC, ADF Pizza I, LLC, and ADF PA, LLC’s Motion to Dismiss for Lack of Personal Jurisdiction
(DE 100) is DENIED.
DONE AND ORDERED in chambers at West Palm Beach, Palm Beach County, Florida,
this 10th day of August, 2016.
____________________________________
KENNETH A. MARRA
United States District Judge

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