Swinter Group, Inc. v. Service of Process Agents, Inc. et al

Filing 29

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that the claims against "John Does 1-10" are DISMISSED without prejudice. IT IS FURTHER ORDERED that the motion of Swinter Group, Inc., for jurisdictional discovery and for stay is DENIED. IT IS FINALLY ORDERED that Swinter Group, Inc., is GRANTED up to and including March 21, 2018 to file its response to Douglas Scott Kaiser's motion to dismiss for lack of jurisdiction. Signed by District Judge Ronnie L. White on 3/7/2018. (KCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
SWINTER GROUP, INC.,
Plaintiff,
v.
SERVICE OF PROCESS AGENTS, INC., and
DOUGLAS SCOTT KAISER,
Defendants.

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Case No. 4: 17-CV-2759 RL W

MEMORANDUM AND ORDER
This is a putative class action filed by Swinter Group, Inc. ("Swinter"), seeking relief
under the Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA"), for an allegedly
unsolicited fax it received. One of the two defendants, 1 Douglas Scott Kaiser, has moved to
dismiss for lack of jurisdiction. In turn, Swinter has moved for jurisdictional discovery and for a
stay of a ruling on the motion to dismiss.

Background
Swinter alleges in its amended complaint that Kaiser and Service of Process Agents, Inc.
("SPA") - the other defendant - sent an unsolicited advertisement to Plaintiffs telephone
facsimile machine in August 2015. (Am.Compl.

if 14, ECF No.

26.) The faxed advertisement

does not include a "clear and conspicuous opt-out notice," in violation of the TCPA and 47
C.F.R. § 64.1200(a)(4)(iii). (Id

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ifif 23, 31.)

In the original action filed in state court in August 2017, Swinter named "John Does 1-10" as
defendants. The "John Does" have not been served within the time set forth in Rule 4(m) of the
Federal Rules of Civil Procedure and are not named in the amended complaint. They shall be
dismissed without prejudice. See Keller v. City of Fremont, 719 F.3d 931, 951 (8th Cir. 2013)
(claims not raised in amended complaint are abandoned).

Douglas Scott Kaiser, a resident of Virginia, "performs work for SP A." (Id.

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10-11.)

The fax at issue informs the recipient, '"If you have any questions, please feel free to call Doug
or Nancy at 800-338-8893."' (Id.
(Id.

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17.)

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16; Am.Comp!. Ex. 1.) The "Doug" referred to is Kaiser.

"Kaiser is the only person work[ing] for SPA whose first name is 'Doug' or

'Douglas."' (Id.

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18.) Additionally, a subpage on SPA's website directs people to contact

"Douglas S. Kaiser" at the telephone number listed on the fax if they have any questions about
SPA's broker services. (Id.

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19.) A copy of SPA's home page is attached as Exhibit 2 to the

Amended Complaint and simply reads, "Still have Questions? Please do not hesitate to call us at
800-338-8883." (Id.

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24 and Ex. 2.)

In his motion to dismiss, Kaiser argues that he does not have the requisite minimum
contacts with Missouri to satisfy due process. Specifically, he avers that he is a resident of
Virginia; has never conducted business in, or travelled to, Missouri; does not own, rent, or have
an interest in property in Missouri and has not done so; does not hOld a professional license
issued by Missouri and has not done so; and is not employed by a company incorporated or
doing business in Missouri. (Kaiser Mem. Ex.

at~~

4, 17-21, ECF No.13.) Also, he is not an

employee, owner, officer, director, manager, supervisor, or team leader for SPA; he is not an
investor, creditor, partner, or joint venturer with SPA; and he has never drafted or sent any
advertising faxes by or on behalf of SPA, nor has he participated in doing so. (Id.
16.) He is an independent contractor working part-time for SPA. (Id.

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3, 11-12,

9.) He answers SPA's

phone lines. (Id.)
Swinter seeks discovery relating to Kaiser's averments and to "uncover evidence not
addressed in Kaiser's declaration." (Pl.'s Mot. at 2, ECF No. 16.)

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Discussion
"The decision whether to grant jurisdictional discovery in a case is left to the trial court's
sound discretion." Clockwork IP, LLC v. Clearview Plumbing & Heating Ltd, 127 F.Supp.3d
1020, 1030 (E.D. Mo. 2015) (interim quotations omitted). "Numerous cases hold that district
courts have the discretion to deny jurisdictional discovery when ... the complaint fails to make a
prima facie case of personal jurisdiction." Id
Under Missouri's long-arm statute, the exercise of personal jurisdiction over Kaiser must
be permissible under the due process clause. See Aly v. Hanzada for Import & Export Co., 864
F.3d 844, 849 (8th Cir. 2017). To determine whether it is, "this [C]ourt considers five factors '(1)
the nature and quality of the contacts with the forum state; (2) the quality of those contacts; (3)
the relationship of those contacts with the cause of action; (4) Missouri's interest in providing a
forum for its residents; and (5) the convenience or inconvenience to the parties."' Id (quoting

Eagle Tee. V Expander Americas, Inc., 783 F.3d 1131, 1136 (8th Cir. 2015)). Based on the
averments in Kaiser's affidavit, consideration of these factors seems to militate against the
assertion of personal jurisdiction over Kaiser. Swinter, however, urges this Court to allow it to
engage in discovery relating to those averments.
In support of its motion, Swinter cites

rt Tech.,

LLC v. Digital Gaming Solutions, 71

Fed.R.Serv.3d 1399, 2008 WL 4790347 (E.D. Mo. 2008).
misplaced. The plaintiff in

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Swinter's reliance on this case is

rt Technology brought a patent infringement case against seven

companies, including a company in Norway, the chairman of which submitted an affidavit
detailing the company's lack of any contacts with the State of Missouri. Id at *1. The plaintiff

2

The Court has carefully reviewed two other cases cited by Swinter -- Ldm Group, LLC v. Akers,
2013 WL 1316420 (E.D. Mo. Mar. 29, 2013), and Cheyenne Prods., S.A. v. Berry, 2011 WL
4014368 (E.D. Mo. Sept. 9, 2011)- and finds neither supports its position.
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contended that the Norway company's website provided interactive links to an allegedly
infringing website of the company's subsidiary.

Id

The latter website was interactive,

accessible in Missouri, and included several references to the Norway company. The court held
that "Ll]urisdictional discovery is appropriate where the existing record is inadequate to support
personal jurisdiction, but the plaintiff demonstrates it can supplement it jurisdictional allegations
through discovery. Jurisdictional discovery is also appropriate where the parties dispute the
relevant facts surrounding the jurisdictional issue, or where the parties have not made a
satisfactory showing of the relevant facts." Id at *6 (interim citations omitted). Noting that the
plaintiff "had pointed to some ambiguity" about the Norwegian's company's ownership and
supervision of the allegedly infringing website, the court allowed jurisdictional discovery on the
limited issue of the relationship between the two. Id
In the instant case, however, without pointing to any ambiguity in Kaiser's affidavit,
Swinter seeks discovery on the veracity of the affidavit, on "whether Kaiser was aware SP A was
involved in a junk-fax campaign," on any prior knowledge of Kaiser of such a campaign, and
whether he demonstrated apparent authority or ratified such campaign. Swinter adds that the
foregoing "are but [a] few of the relevant topics Plaintiff Swinter seeks to discover." (Pl. Mem.
at 4, ECF No. 4.)
The court in pt Technology further held that, "Ll]urisdictional discovery is inappropriate
when the plaintiff pushes for jurisdiction based only on bare assertions. Where a plaintiffs claim
of personal jurisdiction appears to be both attenuated and based on bare allegations in the face of
specific denials made by defendants, the Court need not permit even limited discovery." Id at
*6 (interim citations and quotations omitted).

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Swinter alleges only that Kaiser works for SPA and his first name is given on the
complained-of fax as someone to call. The first name of "Nancy" is also given on that fax. And,
on the copy of the website attached to the amended complaint, only a phone number is given as a
contact if there are any questions. The allegations cited in Swinter' s supporting memorandum
are in its original complaint and simply refer to "Defendants." "Defendants" then included the
ten "John Does." The allegations are not, as referenced in that memorandum, of "Defendant
Doug Kaiser, together with other defendants .... "
For the foregoing reasons, the Court finds Swinter has failed to present any assertion
against Kaiser that supports its request for broad jurisdictional discovery.
Accordingly,
IT IS HEREBY ORDERED that the claims against "John Does 1-10" are DISMISSED
without prejudice.
IT IS FURTHER ORDERED that the motion of Swinter Group, Inc., for jurisdictional
discovery and for stay is DENIED.
IT IS FINALLY ORDERED that Swinter Group, Inc., is GRANTED up to and
including March 21, 2018 to file its response to Douglas Scott Kaiser's motion to dismiss for
lack of jurisdiction.
Dated this

~ay of March, 2018.

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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