Frank et al v. Golds Gym of North Augusta, South Carolina et al
Filing
37
ORDER granting 24 Motion to Dismiss for Lack of Jurisdiction (Written Opinion) Signed by Senior Judge David S. Doty on 6/28/2018. (DLO)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 18-447(DSD/KMM)
Rachel Frank and Danielle
Cowette, on behalf of themselves
and all others similarly situated,
Plaintiffs,
v.
ORDER
Gold’s Gym of North Augusta,
South Carolina, Gold’s Gym of
Augusta, Georgia (Bobby Jones Exp.),
Gold’s Gym of Augusta, Georgia
(Walton Way Ext.) and Gold’s Gym
of Evans, Georgia, Gold’s Gym of
Aiken, South Carolina,
Defendants.
Thomas J. Lyons, Esq. and Consumer Justice Center, P.A., 367
Commerce Court, Vadnais Heights, MN 55127, counsel for
plaintiffs.
Kevin P. Curry, Esq. and Soule & Stull LLC, 8 West 43rd Street,
Suite 200, Minneapolis, MN 55409, counsel for defendants.
This matter is before the court upon the motion to dismiss by
defendants Gold’s Gym of North Augusta, South Carolina; Gold’s Gym
of Augusta, Georgia (Bobby Jones Exp.); Gold’s Gym of Augusta,
Georgia (Walton Way Ext.); Gold’s Gym of Evans, Georgia; and Gold’s
Gym of Aiken, South Carolina.1
Based on a review of the file,
record, and proceedings herein, and for the following reasons, the
motion is granted.
1
The amended complaint incorrectly refers to “Aikens, South
Carolina.”
Am. Compl. ¶ 12.
The correct name of the town is
Aiken.
BACKGROUND
This dispute arises out of alleged violations of the Telephone
Consumer Protection Act (TCPA), 47 U.S.C. § 227 et seq., by various
Gold’s Gym franchise locations.
Plaintiffs Rachel Frank and
Danielle Cowette, on behalf of an alleged class, claim that they
received unsolicited text messages from a Gold’s Gym location in
Aiken, South Carolina in violation of the TCPA.
Am. Compl. ¶ 1.
In September 2017, Frank and Cowette, who are Minnesota
residents, separately visited Gold’s Gym in Aiken, South Carolina.
Am. Compl. ¶¶ 25, 33.
Because neither of them were members of
Gold’s Gym, they filled out a form for a guest pass.
Id.
They
provided their Minnesota telephone numbers and indicated that they
did not consent to receiving text messages from Gold’s Gym.
Id.
Nevertheless, plaintiffs claim that, between October 10, 2017, and
January 29, 2018, they received a total of eight unsolicited text
messages from Gold’s Gym, Aiken.2
Id. ¶¶ 26-38.
On March 26, 2018, plaintiffs filed an amended complaint
against defendant claiming (1) negligent violations of the TCPA and
(2) knowing or willful violations of the TCPA. Defendants now move
to dismiss for lack of personal jurisdiction.
2
Frank and Cowette received five and three text messages,
respectively.
Am. Compl. ¶¶ 32, 38.
The text messages were
allegedly sent using a automatic telephone dialing system. Id.
2
DISCUSSION
I.
Personal Jurisdiction
A.
To
Standard
survive
a
motion
to
dismiss
for
lack
of
personal
jurisdiction, a plaintiff must establish a prima facie case that
the forum state has personal jurisdiction over the defendant.
Stevens v. Redwing, 146 F.3d 538, 543 (8th Cir. 1998). In the
absence of an evidentiary hearing, a court “must look at the facts
in the light most favorable to the nonmoving party and resolve all
factual conflicts in favor of that party.”
Dakota Indus., Inc. v.
Dakota Sportswear, Inc., 946 F.2d 1384, 1387 (8th Cir. 1991).
A
federal court may assume jurisdiction over a nonresident defendant
“only to the extent permitted by the long-arm statute of the forum
state and by the Due Process Clause.”
Romak USA, Inc. v. Rich, 384
F.3d 979, 984 (8th Cir. 2004) (citation and internal quotation
marks omitted).
Because the Minnesota long-arm statute “confers
jurisdiction to the fullest extent permitted by the Due Process
Clause,” the court need only consider due process requirements.
Coen v. Coen, 509 F.3d 900, 905 (8th Cir. 2007).
To satisfy due process, a defendant must have “sufficient
minimum contacts” with the forum state such that maintaining the
suit
“does
not
offend
substantial justice.”
traditional
notions
of
fair
Romak, 384 F.3d at 984.
play
and
“Sufficient
contacts exist when [a] defendant’s conduct and connection with the
3
forum state are such that [it] should reasonably anticipate being
haled into court” here.
Coen, 509 F.3d at 905 (citation and
internal quotation marks omitted).
A defendant’s contacts with the forum state can establish
personal
jurisdiction
jurisdiction.
under
either
general
or
specific
General jurisdiction is present when, regardless of
the cause of action, a defendant’s “affiliations with the [forum]
State
are
so
continuous
and
systematic
as
to
render
[it]
essentially at home in the forum State.” Daimler AG v. Bauman, 134
S. Ct. 746, 754 (2014) (internal quotation marks omitted)(quoting
Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919
(2011)).
A court has specific jurisdiction when the cause of
action “arise[s] out of” or “relate[s] to” a defendant’s activities
within that state and when a defendant “purposefully avails itself
of the privilege of conducting activities within the forum State.”
Burger
King
Corp.
v.
Rudzewicz,
471
U.S.
462,
472,
474-75
(1985)(citation and internal quotation marks omitted).
Under either analysis, the Eighth Circuit considers five
factors in determining whether personal jurisdiction exists:
“(1)
the nature and quality of defendant’s contacts with the forum
state; (2) quantity of contacts; (3) source and connection of the
cause of action with those contacts; and to a lesser degree, (4)
the interest of the forum state; and (5) the convenience of the
parties.”
Wessels, Arnold & Henderson v. Nat’l Med. Waste, Inc.,
4
65 F.3d 1427, 1432 (8th Cir. 1995).3
“The first three factors are
of primary importance, and the last two are secondary factors.”
Digi-Tel Holdings, Inc. v. Proteq Telecomms. (PTE), Ltd., 89 F.3d
519, 523 (8th Cir. 1996)(internal quotation marks and citation
omitted).
B.
Sufficiency of Contacts
Plaintiffs argue that defendants are subject to personal
jurisdiction in Minnesota because they sent text messages to
Minnesota telephone numbers and used by Minnesota residents and
because the alleged TCPA violations arise out of these text
messages.4
The court disagrees.
First, the amended complaint alleges that Gold’s Gym, Aiken
sent text messages to Minnesota.
There is no evidence that the
other defendants participated in or otherwise coordinated with
Gold’s Gym, Aiken in sending the text messages at issue or that the
other defendants had any other contact with Minnesota.5
Also, it
3
At the hearing, plaintiffs asserted that the court should
analogize this case to Fair Debt Collection Practices Act (FDCPA)
cases, implying that a different standard of personal jurisdiction
may apply. The court requested additional briefing on the issue.
The parties now agree that the Eighth Circuit does not apply a
different jurisdictional standard in FDCPA cases. See ECF Nos. 35,
36. Accordingly, the FDCPA cases are of minimal value to the court
and, although considered, will not be specifically addressed.
4
There is no evidence, and the plaintiffs do not appear to
argue, that the court has general personal jurisdiction over
defendants.
5
Even assuming there was such evidence, these defendants
would be dismissed for the same reasons, discussed below, as Gold’s
5
is
undisputed
franchises.
personal
that
the
defendants
See Smith Aff. II ¶ 6.
jurisdiction
over
the
are
independently
operated
Therefore, the court has no
other
defendants.
The
only
remaining question is whether Gold’s Gym, Aiken is subject to the
court’s jurisdiction.
Although
this
The court finds that it is not.
TCPA
action
arises
from
the
alleged
text
messages, the quality and quantity of the contacts are insufficient
to confer jurisdiction.
Generally, “telephone calls, written
communications, and ... wire-transfers to and from a forum state do
not create sufficient contacts to comport with due process such
that” a court can properly exercise personal jurisdiction over a
foreign defendant.
Eagle Tech. v. Expander Ams., Inc., 783 F.3d
1131, 1137 (8th Cir. 2015).
Here, the only contacts alleged are
the eight text messages Gold’s Gym, Aiken sent to Minnesota cell
phone numbers.
“reasonably
These contacts are not such that Gold’s Gym would
anticipate
being
haled
into
court”
in
Minnesota.
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).
Plaintiffs
insist
that
the
text
messages
are
sufficient
because the effects of Gold’s Gym’s actions were felt in Minnesota.
The court disagrees.
The effects of a defendant’s tortious acts6 can serve as the
Gym, Aiken.
6
The court assumes, without deciding, that text messages
allegedly sent in violation of the TCPA are tortious acts.
6
basis for personal jurisdiction where “the defendant’s acts (1)
were intentional, (2) were uniquely or expressly aimed at the forum
state, and (3) caused harm, the brunt of which was suffered - and
which the defendant knew was likely to be suffered - [in the forum
state].
Johnson
v.
Arden,
614
F.3d
785,
796
(8th
Cir.
2010)(internal quotation marks and citation omitted)(alteration in
original).
Even where the effects of a defendant’s actions are
felt in the forum state, this test is “merely an additional factor
to consider when evaluating a defendant’s relevant contacts.”
Id. at 796-97.
Plaintiffs argue that Gold’s Gym, Aiken targeted Minnesota
because it sent text messages to telephone numbers with Minnesota
area codes and because they received many of the text messages
while they were in Minnesota.
First, the fact that plaintiffs
received text messages while in Minnesota is irrelevant because
“the proper question is not where the plaintiff experienced a
particular injury or effect but whether the defendant’s conduct
connects [it] to the forum in a meaningful way.”
134 S. Ct. 1115, 1125 (2014).
Walden v. Fiore,
Next, although Gold’s Gym, Aiken
sent the text messages to phone numbers with Minnesota area codes,
this is, by itself, insufficient to show that it “uniquely or
expressly aimed” its actions at Minnesota, Johnson, 614 F.3d 796,
7
because an area code is not a reliable indicator of residence.7
See Sojka v. Loyalty Media LLC, No. 14-cv-770, 2015 WL 2444506, at
*3 (N.D. Ill. May 20, 2015)(“[A] cell phone prefix, unlike a
landline, is not dispositive of the residence, domicile or location
of the cell phone owner.”).
Moreover, the court notes that Gold’s
Gym provides an inherently local service; most people do not travel
long distances to go to a gym.
See Smith Aff. I ¶ 24 (“The
majority of Gold’s Gym-Aiken clients live within a ten-minute drive
of the facility.”).
Accordingly, Gold’s Gym could not have
reasonably anticipated being sued in Minnesota by sending eight
text messages to two numbers with Minnesota area codes that were
provided by individuals while in South Carolina and who expressed
interest in attending a South Carolina gym.8
Finally, plaintiffs argue that Minnesota has an interest in
providing a forum for its citizens harmed by violations of the TCPA
and that this weighs in favor of finding personal jurisdiction.
Although generally true, this “secondary factor does not outweigh
the due process considerations which strongly support dismissal.
7
The fact that the numbers were allegedly dialed with an
automatic telephone dialing system also weighs against finding that
Gold’s Gym expressly aimed its actions at Minnesota or that it knew
that any harm suffered would be felt in Minnesota.
8
Plaintiffs cite to numerous cases outside this circuit in
which courts exercised personal jurisdiction in TCPA cases based on
the defendant’s call to an area code within the forum state. Those
cases are inapposite, however, because none apply the Eighth
Circuit’s holding that telephone calls or other communications,
without more, are insufficient to confer personal jurisdiction.
8
As a result, the court must dismiss the complaint for lack of
personal jurisdiction.9
CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that:
1. Defendant’s motion to dismiss [ECF No. 24] is granted; and
2.
The case is dismissed without prejudice.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: June 28, 2018
s/David S. Doty
David S. Doty, Judge
United States District Court
9
Because the court concludes that it does not have personal
jurisdiction over defendants, it need not address defendants’
argument that the District of Minnesota is an improper venue.
9
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