Paldo Sign and Display Company v. Unified Marketing, LLC et al

Filing 104

ENTER MEMORANDUM Opinion and Order Signed by the Honorable John W. Darrah on 3/11/2014: Mailed notice (jmp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PALDO SIGN AND DISPLAY COMPANY
and SABON, INC., individually and as the
representatives of a class of similarly-situated
persons,
Plaintiffs,
v.
UNITED VENDING AND MARKETING,
INC., et al.,
Defendants.

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Case No. 13-cv-1896
Judge John W. Darrah

MEMORANDUM OPINION AND ORDER
Plaintiffs, Paldo Sign and Display Company (“Paldo”) and Sabon, Inc. (“Sabon”), have
brought this class action against multiple Defendants for allegedly sending unsolicited
facsimiles, in violation of the Telephone Consumer Protection Act of 1991 (“TCPA”), 47 U.S.C.
§ 227. At issue are two motions to dismiss Plaintiffs’ Second Amended Complaint (“SAC”).
Defendant Tyler Eyamie filed a motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(2) for lack of personal jurisdiction. Defendants Nicholas Chomakos and Laura Chomakos,
proceeding pro se, also have filed a motion to dismiss. For the reasons discussed below,
Eyamie’s Motion [80] is granted, and Nicholas and Laura Chomakos’s Motion [78] is denied.
BACKGROUND
The following facts are taken from the Second Amended Complaint, the submitted
exhibits and affidavits. In September 2009, Paldo, an Illinois corporation, received an
unsolicited facsimile advertising a vending machine. In May 2011, Sabon, a Florida corporation,
received the same facsimile. (SAC ¶¶ 28-29.) Plaintiffs allege that Defendants United Vending

and Marketing, Inc. (“United”), Sunrise Marketing & Vending, Inc. (“Sunrise”), Global Vending
Services, Inc. (“Global”), and Unified Marketing, LLC (“Unified”) marketed their products by
sending unsolicited faxes to potential customers. Plaintiffs further allege that Defendants J2
Global, Inc. (“J2 USA”), J2 Global Canada, Inc. (“J2 Canada”), and Eyamie sold fax blasting
services that were used for sending the 2009 vending machine fax, and that Defendants Accelero
Communications, Inc., Digitalspeed Communications, Inc., and Slingshot Technologies
Corporations (collectively, “Accelero”) sold fax blasting services that were used for sending the
2011 fax. (SAC ¶¶ 1, 21-22.)
Eyamie is a Canadian resident who was employed by Protus IP Solutions, Inc. (“Protus”),
a Canadian corporation with its principal place of business in Ottawa, Canada. (Eyamie Mem. in
Supp. of Mot., Tyler Eyamie Declaration (“Eyamie Decl.”) ¶ 19.) Protus provided, among other
things, fax broadcast services and was renamed J2 Canada after it was purchased by J2 USA. 1
Eyamie worked as Manager of Business Development in the sales department of Protus. In
Canada, he communicated with customers, took orders and sold fax broadcast services and other
products to customers in the United States, including Illinois, at an established rate structure set
by Protus and for which he received commissions. (SAC ¶ 16; Eyamie ¶ 21.) Eyamie has never
worked in Illinois or in the United States, has never visited Illinois (except for at least one
layover at O’Hare International Airport), and owns no property in Illinois or the United States.
(Eyamie Decl. ¶¶ 4-9.) He travelled to the United States three times as an employee of Protus,

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J2 Canada is a Canadian corporation with a principal place of business in Ontario; J2
USA is a Delaware corporation with its principal place of business in California. (SAC ¶¶ 1416.)
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but not to Illinois. (Eyamie Decl. ¶ 27.) In February 2011, Eyamie was laid off from his
position at J2 Canada. (Eyamie Decl. ¶ 46.)
Defendants Nicholas Chomakos, Laura Chomakos and Matthew Capicchioni were
officers, directors, shareholders and control persons of Global, Sunrise and United. Laura
Chomakos was also a manager, member and control person of Unified. (SAC ¶¶ 17-18, 20.)
ANALYSIS
Eyamie’s 12(b)(2) Motion
Rule 12(b)(2) permits the dismissal of a complaint where the court lacks personal
jurisdiction over a party. Fed. R. Civ. P. 12(b)(2). Upon a Rule 12(b)(2) motion, the plaintiff
bears the burden of establishing personal jurisdiction. Citadel Group, Ltd. v. Wash. Reg’l Med.
Ctr., 536 F.3d 757, 761 (7th Cir. 2008). Where there is no evidentiary hearing held, as in this
case, the plaintiff must make only a prima facie case of personal jurisdiction based on the
submission of written materials. Hyatt Int’l Corp. v. Coco, 302 F.3d 707, 714 (7th Cir. 2002).
The plaintiff “is entitled to the resolution in its favor of all disputes concerning relevant facts
presented in the record.” Purdue Research Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782
(7th Cir. 2003) (internal citations and quotations omitted).
Plaintiffs assert that personal jurisdiction exists over Eyamie on two alternative grounds:
the Illinois long-arm statute and Rule 4(k)(2). 2 The Illinois long-arm statute permits a court to
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Rule 4(k)(2) provides for personal jurisdiction for claims that arise under federal law
where the defendant is not subject to jurisdiction in any state’s court of general jurisdiction and
exercising jurisdiction is consistent with the United States Constitution. Personal jurisdiction in
this case is governed by Illinois law because the TCPA does not provide for nationwide service
of process. See Tamburo v. Dworkin, 601 F.3d 693, 700 (7th Cir. 2010); see also Creative
Montessori Learning Ctr. v. Ashford Gear, LLC, No. 09 CV 3963, 2010 WL 3526691, at *2
(N.D. Ill. Sept. 2, 2010). As explained next, the inquiry under Illinois and federal law is
essentially identical.
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“exercise jurisdiction on any other basis now or hereafter permitted by the Illinois Constitution
and the Constitution of the United States.” 735 ILCS 5/2-209(c). Because “there is no operative
difference” between the Illinois Constitution and the United States Constitution for purposes of
personal jurisdiction, a district court needs only analyze whether the exercise of personal
jurisdiction would be contrary to federal due process. Hyatt Int’l Corp., 302 F.3d at 715-16
(internal citations omitted).
Personal jurisdiction may be exercised in accordance with due process if the defendant
has sufficient “minimum contacts” with Illinois “such that the maintenance of the suit does not
offend ‘traditional notions of fair play and substantial justice.’” Hyatt Int’l Corp., 302 F.3d at
716 (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). Such contacts must not
be fortuitous. Id. Rather, the defendant must have purposely established minimum contacts with
the forum state such that he “should reasonably anticipate being haled into court” there. Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985). Thus, the district court will determine if it
is “fair and reasonable to call the defendant into the state’s courts to answer the plaintiff’s
claim.” uBID, Inc. v. GoDaddy Group, Inc., 623 F.3d 421, 426 (7th Cir. 2010) (citing Int'l Shoe,
326 U.S. at 317). This is because “[p]otential defendants should have some control over – and
certainly should not be surprised by – the jurisdictional consequences of their actions.” RAR,
Inc. v. Turner Diesel, Ltd., 107 F.3d 1272, 1277 (7th Cir. 1997).
Personal jurisdiction can be either general or specific. General jurisdiction exists where
the defendant has “continuous and systematic” business contacts with the forum state, so that the
defendant is subject to any action, regardless of whether the action is related to the defendant’s
contacts. Felland v. Clifton, 682 F.3d 665, 673 (7th Cir. 2012). The standard for general
jurisdiction “is high; the contacts must be sufficiently extensive and pervasive to approximate
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physical presence.” Tamburo, 601 F.3d at 701 (internal citations omitted). In contrast, specific
jurisdiction requires that: (1) the defendant has “purposefully directed” his activities at the forum
state or “purposefully availed himself of the privilege of conducting business” in the state; and
(2) the specific injury arises out of the defendant’s forum-related activities. Felland, 682 F.3d at
673 (citing Burger King Corp, 471 U.S. at 472, and Int’l Shoe, 326 U.S. at 316). Thus, “the
defendant’s contacts with the forum state must directly relate to the challenged conduct or
transaction.” Tamburo, 601 F.3d at 702.
General jurisdiction clearly does not exist over Eyamie. Eyamie is a Canadian citizen
who has never worked for an Illinois or United States company, holds no property in Illinois, and
has never visited Illinois, except for an occasional, incidental layover at O’Hare airport.
Although Plaintiffs allege that Eyamie had hundreds of customers in the United States, they do
not allege that Eyamie initiated those contacts, nor do they allege that he initiated those contacts
with Illinois businesses. Eyamie’s sporadic contacts with Illinois are not continuous or
systematic to establish general personal jurisdiction. Tamburo, 601 F.3d at 701.
Specific jurisdiction also does not exist over Eyamie. Plaintiffs’ complained-of injury is
that they received unsolicited faxes. Plaintiffs do not allege that Eyamie sent the faxes at issue to
them in Illinois. Rather, they allege that one of Eyamie’s customers, Erol Sonmez, used Protus’s
system to send unsolicited faxes on behalf of Sonmez’s company, UnixUSA, LLC
(“UnixUSA”), which was at one point an Illinois company. (Eyamie Dec. ¶ 32.) However, at
the time the fax at issue was allegedly sent to Paldo in September 2009, Somnez had moved out
of the United States, and UnixUSA had been dissolved as an Illinois company. (Eyamie Reply
Br., Somnez Decl. ¶ 7 and Exh. A, Certificate of Dissolution of UnixUSA.) Plaintiffs have not

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shown that Eyamie’s contacts with Illinois directly relate to the alleged injury to establish
personal jurisdiction.
Moreover, even if specific jurisdiction did exist over Eyamie, it would “offend
‘traditional notions of fair play and substantial justice.’” Hyatt Int’l Corp., 302 F.3d at 716.
Eyamie, a Canadian resident and a sales manager for a Canadian company, could not have
anticipated being haled into Illinois court for faxes that were sent by one of his customers. For
this additional reason, specific jurisdiction does not exist over Eyamie.
Because personal jurisdiction does not exist over Eyamie, his 12(b)(2) Motion is granted,
and he is dismissed as a Defendant.
The Chomakos’ Rule 12(b)(6)Motion
Rule 12(b)(6) permits a defendant to move to dismiss a complaint for “failure to state a
claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to
dismiss, a complaint must allege “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). Rather, the
complaint must provide a defendant “with ‘fair notice’ of the claim and its basis.” Tamayo v.
Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008) (quoting Fed. R. Civ. P. 8(a)(2) and Twombly,
550 U.S. at 555). When ruling on a motion to dismiss, the court accepts all well-pleaded factual
allegations as true and construes all reasonable inferences in favor of the plaintiff. Tamayo, 526
F.3d at 1081.
Nicholas and Laura Chomakos have filed a one-page motion in letter form that states that
they never sent any faxes. The motion also, improperly, purports to be on behalf of Defendants
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“Sunrise marketing & vending/Unified marketing/United vending & marketing.” The Chomakos
have not filed a reply brief in support of their motion. They state that they were “solicited by
Mirskiy solutions to do marketing for me and it turns out he ended up working with these
attorneys . . . . Yet the marketing company that set it all up, managed and ran the program are not
being sued.” In a previous filing to the Court, Nicholas Chomakos also stated that he paid “a
marketing guy (Yuriiy Mirskiy) who then ran marketing for him. Nicholas never saw any proof
of how many faxes went out, if any.” (N. Chomakos Mot. to Dismiss, 4/19/13, Dkt. 43.)
Plaintiffs have sufficiently provided Nicholas and Laura Chomakos with fair notice of
their claims that companies controlled by them were responsible for sending unsolicited faxes.
Although both Chomakos deny that they sent any faxes, they also admit that they used a
marketing company that could have sent faxes on their behalf. The Chomakos’ Motion does not
demonstrate that Plaintiffs have failed to state a claim. Their Motion, instead, more closely
approximates an Answer to Plaintiff’s SAC. Consequently, the Chomakos’ Motion is denied.

CONCLUSION
For the foregoing reasons, Defendant Tyler Eyamie’s Motion [80] is granted, and Eyamie
is dismissed as a Defendant. Defendants Nicholas and Laura Chomakos’s Motion [78] is
denied.

Date:___March 11, 2014

______________________________
JOHN W. DARRAH
United States District Court Judge

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