Levine Hat Co. v. Innate Intelligence, LLC et al

Filing 118

MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that defendants' Motions to Dismiss Plaintiffs' Second Amended Complaint (#108, #110) are GRANTED.IT IS FURTHER ORDERED that defendants Gary Robert Eyler, Eyler Investments, LLC, and Pure Family Chiropractic LLC are DISMISSED. Signed by District Judge Stephen N. Limbaugh, Jr on 11/7/17. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LEVINE HAT CO., on behalf of itself
and all other similarly situated,

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Plaintiff,
v.
INNATE INTELLIGENCE, LLC, et al.,
Defendants.

No. 4:16-cv-01132 SNLJ
JURY TRIAL DEMANDED

MEMORANDUM AND ORDER
Plaintiff Levine Hat Co. filed this putative class action lawsuit against defendant
Innate Intelligence LLC (“Innate”) and Nepute Enterprises LLC (“Nepute”) alleging
violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”). On
January 3, 2017, plaintiff amended the complaint to add an additional nine defendants,
including the Bria defendants (Jeremy L. Bria, Bria Investments, LLC, JLB, Inc., and
Well Adjusted Investments, LLC); the Eyler defendants (Gary Robert Eyler and Eyler
Investments, LLC); and Pure Family Chiropractic LLC (“Pure”). Those three groups of
defendants moved to dismiss for lack of personal jurisdiction. This Court held that it
could not “exercise jurisdiction over the moving defendants based on their personal
contacts with Missouri” and that it could only “assert personal jurisdiction over the
moving defendants if” Innate were their alter ego. (#92 at 9.) The Court allowed
plaintiff to conduct additional discovery to determine whether the three sets of defendants
were subject to jurisdiction based on plaintiff’s claim that Innate was their alter ego or

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agent. The Court allowed the parties until September 18, 2017 to conduct discovery
limited to the issue of personal jurisdiction and invited defendants to re-file their motions
to dismiss after the close of discovery. The Bria defendants, Eyler defendants, and Pure
re-filed their motions to dismiss for lack of personal jurisdiction. Plaintiff voluntarily
dismissed the Bria defendants (#106). Plaintiff did not take any discovery during the
allowed period, but it opposes the Eyler defendants’ and Pure’s motion to dismiss.
I.

Background
The Court adopts its July 17, 2017 Order’s recitation of the pertinent background:
On July 5, 2016, defendant Innate Intelligence, LLC, doing business
as Innate Wellness Centers (“Innate”), sent plaintiff a fax advertising “a
FREE Lunch ‘n Learn on Stress Management for your employees.” The
following notice appears at the bottom of the fax:
To opt out from future faxes go to www.removemyfax
number and enter PIN# 17204, or call 800-321-4433. The
recipient may make a request to the sender not to send any
future faxes and failure to comply with the request within
30 days is unlawful.
[Doc. # 27-1]. Plaintiff alleges that the opt-out notice does not comply
with the minimum requirements of 47 C.F.R. § 64.1200.
On July 12, 2016, plaintiff initiated this action, under the [TCPA], on
behalf of itself and a purported nationwide class. Plaintiff initially
proceeded against defendants Innate and [Nepute]. On January 3, 2017,
plaintiff amended its complaint to name additional defendants, including
the Bria defendants, the Eyler defendants, and Pure Family Chiropractic.
Plaintiff alleges that the defendants are directly liable for violations of the
TCPA because the faxes were sent on their behalf and that they are
vicariously liable because defendant Innate was their alter ego and/or agent.

The Bria, Eyler, and Pure defendants contended that they did not have
sufficient contacts with Missouri to support the exercise of personal jurisdiction,
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consistent with the Missouri long-arm statute and the requirements of due process. This
Court agreed to the extent that they were not alter egos of defendant Innate. Plaintiff
requested and was granted time to conduct discovery on the limited issue of personal
jurisdiction. However, plaintiff did not conduct any such discovery, but plaintiff
voluntarily dismissed the Bria defendants. The Eyler and Pure defendants have moved to
dismiss for lack of personal jurisdiction.
II.

Legal Standard
This Court adopts its articulation of the legal standard set forth in its July

memorandum & order. (See #92 at 2-3 and 7-8.)
III.

Discussion

Personal jurisdiction as to each set of defendants is discussed below.
A. Pure Family Chiropractic
Plaintiff first maintains that this Court has personal jurisdiction over Pure under
the Missouri Long-Arm Statute and because Pure has sufficient minimum contacts with
the forum state. This is precisely the argument plaintiff made in its briefing on the
defendants’ first motions to dismiss for lack of personal jurisdiction, and this Court has
already rejected those arguments.
This Court allowed plaintiff to take discovery to support the proposition that Pure
was an alter ego of defendant Innate and that it was thus subject to personal jurisdiction
under that theory instead. Plaintiff failed to take any discovery. Further, plaintiff’s
argument in favor of the “alter ego” analysis is identical to its argument that was rejected
by this Court in July. (Compare #82 at 8-11 with #113 at 6-8.) The Court’s ruling
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remains unchanged, as it need not revisit the determination that personal jurisdiction does
not exist on the present facts.
B. Eyler Defendants
Again, plaintiff continues to rely on its argument from its briefing on the
defendant’s first motion to dismiss. Plaintiff contends that Robert Eyler may be held
personally liable for his actions, which plaintiff says are sufficient to satisfy personal
jurisdiction requirements. Again, this argument was considered and rejected by the Court
in the July memorandum and order. (#92.)
Plaintiff does not attempt to argue that the Eyler defendants are the alter egos of
defendant Innate, however, as it did in its memorandum opposing the Eyler defendants’
first motion to dismiss. Rather, plaintiff argues that Eyler and Eyler Investments, LLC,
are alter egos because Eyler is the LLC’s sole member and manager. Those are not the
hallmarks of an alter ego relationship --- if they were, then all single member LLCs
would lose protection of the LLC business form. Further, this Court has already rejected
that argument. And although this Court granted plaintiff leave to conduct discovery to
try to prove its alter ego arguments, plaintiff did not do so.
IV.

Conclusion
Based on the foregoing, the Court finds that plaintiffs have failed to allege

sufficient facts that the Court may assume personal jurisdiction over the Pure and Eyler
defendants under Missouri’s long-arm statute and the Due Process Clause. The matter
will be dismissed as to those defendants.

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Accordingly,
IT IS HEREBY ORDERED that defendants’ Motions to Dismiss Plaintiffs’
Second Amended Complaint (#108, #110) are GRANTED.
IT IS FURTHER ORDERED that defendants Gary Robert Eyler, Eyler
Investments, LLC, and Pure Family Chiropractic LLC are DISMISSED.

Dated this

7th

day of November, 2017.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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