Human v. Frubbel, LLC et al

Filing 14

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant Frubbel, LLC's Motion to Dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure is DENIED. [ECF No. 6 ] Signed by District Judge Ronnie L. White on 5/8/2024. (TMT)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DANIEL HUMAN, individually and on
behalf of similarly situated persons,
Plaintiff,
v.
FRUBBEL, LLC, d/b/a
Valu-Pass, et al.,
Defendants.

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No. 4:24-CV-50 RLW

MEMORANDUM AND ORDER
This matter is before the Court on Defendant Frubbel, LLC’s Motion to Dismiss pursuant
to Rule 12(b)(2) of the Federal Rules of Civil Procedure for lack of personal jurisdiction. (ECF No.
6). The motion is fully briefed and ripe for review. For the reasons that follow, the Court denies
Defendant Frubbel, LLC’s Motion to Dismiss for lack of personal jurisdiction.
I. Background
On December 5, 2023, Plaintiff Daniel Human filed suit against Defendant Frubbel, LLC,
d/b/a Valu-Pass, (“Frubbel”) and nine John and Jane Doe defendants (“the Doe Defendants”) in
the Circuit Court of St. Louis County, Missouri. Plaintiff alleges that the defendants called his
cellular telephone number on several occasions, despite the fact that his number was included on
the federal and Missouri No Call registries. In his state court Petition (hereinafter “Complaint”),
Plaintiff asserts Frubbel and the Doe Defendants violated provisions of the Missouri
Merchandising Practices Act related to telemarketing, Mo. Rev. Stat. §§ 407.1076 and 407.1098,
(Count I), and the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227, et seq., (Count

II). Plaintiff brings claims on his own behalf and seeks to represent individuals who are similarly
situated in a class action.
On January 9, 2024, Frubbel removed the action to this Court on the basis of federal
question subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331, 1367, 1441, and 1446. (ECF
No. 1). Frubbel responded to the Complaint by filing a Motion to Dismiss for lack of personal
jurisdiction pursuant to Rule 12(b)(2), the motion presently before the Court.
II. Allegations in Complaint
Plaintiff’s Complaint contains the following factual allegations:
Plaintiff registered his residential cellular telephone number on the Missouri and National
Do Not Call registries to end all telemarketing calls to his phone. Despite this fact, Frubbel and
the Doe Defendants placed nine telemarketing calls to Plaintiff’s phone beginning in February
2023.1 During the calls, the Doe Defendants stated that they were agents for Valu-Pass and
provided the company’s address, which is the same as Frubbel’s. The telemarketers solicited
Plaintiff to purchase a “product discount package” from Frubbel. (ECF No. 4 at 8). Plaintiff
informed the telemarketers that he was busy, and they were interrupting his family time. He also
informed the telemarketers that he was on the Missouri and National Do Not Call registries.
However, the Doe Defendants continued to make a series of telemarketing calls to Plaintiff’s
number, each of which “were condoned, encouraged, enticed, and ratified” by Frubbel. (Id. at 7).
Plaintiff neither provided his prior written consent nor requested these calls.
The Complaint alleges Frubbel is a Florida-based “product discount company that solicits
customers all over the country to purchase their discount products.” (Id. at 3). Plaintiff alleges

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The Doe Defendants are defined as “unknown telemarketers, employees, agents, or
vendors of Frubbel[.]” (ECF No. 4 at 3).
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Frubbel, the Doe Defendants, and “their agents, employee and/or vendors” advertise and sell
discounted products targeted at senior citizens, including those in Missouri. (Id.) According to
the Complaint, Frubbel makes telemarketing calls or employs its agents to make telemarketing
calls within and into this District. Plaintiff asserts that Frubbel and the Doe Defendants “have
sufficient minimum contacts with the State of Missouri and this District in that they transact
business in Missouri, profit personally from Defendant Frubbel and Valu-Pass sales made in
Missouri, they send their products to Missouri and advertise in Missouri[.]” (Id.) Therefore,
according to Plaintiff, they are subject Missouri’s long-arm statute and personal jurisdiction in the
State of Missouri. (Id. at 4).
III. Legal Standard
When personal jurisdiction is challenged, the party seeking to invoke the jurisdiction of a
federal court bears the burden to establish that jurisdiction exists. Fastpath, Inc. v. Arbela Techs.
Corp., 760 F.3d 816, 820 (8th Cir. 2014) (citations omitted). To survive a motion to dismiss for
lack of personal jurisdiction under Rule 12(b)(2), “a plaintiff must make a prima facie showing of
personal jurisdiction by pleading facts sufficient to support ‘a reasonable inference that the
defendant[ ] can be subjected to jurisdiction within the state.’” Valez v. Portfolio Recovery
Assocs., 881 F. Supp. 3d 1075, 1080 (E.D. Mo. 2012) (quoting K-V Pharm. Co. v. J. Uriach &
CIA, S.A., 648 F.3d 588, 591–92 (8th Cir. 2011) (internal quotations and citations omitted)). A
defendant can make a factual challenge to personal jurisdiction, but “[t]he allegations in the
Complaint must be taken as true to the extent they are uncontroverted by the defendant's
affidavits.” Cantrell v. Extradition Corp. of Am., 789 F. Supp. 306, 308–09 (W.D. Mo. 1992); see
also Dever v. Hentzen Coatings, Inc., 380 F.3d 1070, 1076 (8th Cir. 2004). If the parties present
conflicting affidavits, the Court “must view the evidence in the light most favorable to the plaintiff

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and resolve all factual conflicts in [his] favor in deciding whether the plaintiff made the requisite
showing.” Digi-Tel Holdings, Inc. v. Proteq Telecoms. (PTE), Ltd., 89 F.3d 519, 522 (8th Cir.
1996) (citing K-V Pharmaceutical Co., 648 F.3d at 591–92). “The evidentiary showing required
at the prima facie stage is minimal.” Johnson v. Arden, 614 F.3d 785, 794 (8th Cir. 2010)
(quotation omitted). “[J]urisdiction need not be proved by a preponderance of the evidence until
trial or until the court holds an evidentiary hearing.” Dakota Indus., Inc. v. Dakota Sportswear,
Inc., 946 F.2d 1384, 1387 (8th Cir. 1991).
IV. Discussion
Personal jurisdiction generally takes two forms: “‘[G]eneral’ (sometimes called ‘allpurpose’) jurisdiction and ‘specific’ (sometimes called ‘case-linked’) jurisdiction.” Bristol-Myers
Squibb Co. v. Superior Ct. of Cal., San Francisco Cnty., 582 U.S. 255, 262 (2017) (“BristolMyers”) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011)).2 The
Court will address each in turn.
A.

General Jurisdiction

Under the theory of general jurisdiction, also known as all-purpose jurisdiction, “a court
may hear a lawsuit against a defendant who has ‘continuous and systematic’ contacts with the
forum state, even if the injuries at issue in the lawsuit did not arise out of the defendant’s
activities directed at the forum.” Dever, 380 F.3d at 1073 (quoting Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 415-16 (1984)). However, “only a limited set of affiliations
with a forum will render a defendant amenable to all-purpose jurisdiction there.” Daimler AG v.

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Recently, the U.S. Supreme Court recognized an often-forgotten third method of obtaining
personal jurisdiction over an out-of-state defendant. The Court held that state statutes requiring
out-of-state corporations to consent to personal jurisdiction in the state as condition of registering
to do business in a state do not violate the Due Process Clause. Mallory v. Norfolk S. Ry. Co., 600
U.S. 122 (2023). Neither side asserts Frubbel is subject to such a statute in Missouri.
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Bauman, 571 U.S. 117, 137 (2014). For a corporation, the inquiry is whether the forum is one in
which the corporation “is fairly regarded as at home,” which is the place of incorporation and
principal place of business. Id. (internal quotation and citation omitted). For a limited liability
company, the Court may consider the state of formation, principal place of business, and place of
citizenship of its members in determining whether the company is subject to general personal
jurisdiction in the forum. Id. See also Carney v. Guerbet, LLC, No. 4:18-CV-1494 CAS, 2018
WL 6524003, at *3 (E.D. Mo. Dec. 12, 2018). A business entity that simply operates or does
business in many places cannot be deemed at home in all those places for purposes of general
jurisdiction. Daimler, 571 U.S. at 139, n.20.
Based on the allegation in the Complaint and evidence in the record, the Court finds
Frubbel is a Florida limited liability company with its principal place of business in Florida.
Frubbel submitted evidence showing that Frubbel’s sole member is Rezervco Holdings, Inc., a
Florida corporation with its principal place of business in Florida. There are no allegations or
evidence in the record that would permit the Court to find Frubbel is subject to general jurisdiction
in Missouri. Id. at 137. Finding there is no general jurisdiction over Frubbel in Missouri, the Court
now turns to whether there is specific jurisdiction over this non-resident defendant.
B.

Specific Jurisdiction

Specific jurisdiction requires the suit to arise out of or relate to the defendant’s contacts
with the forum state. Bristol-Myers Squibb Co., 582 U.S. at 262 (citing Daimler AG, 571 U.S. at
127). This suit was removed to this Court based on the TCPA, which is silent as to service of
process. Therefore, the existence of personal jurisdiction over a non-resident defendant depends
on the long-arm statute of the forum state and the federal Due Process Clause. Bros. & Sisters in

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Christ, LLC v. Zazzle, Inc., 42 F.4th 948, 951 (8th Cir. 2022); Romak USA, Inc. v. Rich, 384 F.3d
979, 984 (8th Cir. 2004).
Missouri’s long-arm statute authorizes personal jurisdiction over defendants who transact
business or commit a tort within the state, as to any cause of action arising from the commission
of such acts. Mo. Rev. Stat. § 506.500.1. “A person or firm transacts business by visiting Missouri
or sending its product or advertising here.” Dairy Farmers of Am., Inc. v. Bassett & Walker Int'l,
Inc., 702 F.3d 472, 476 (8th Cir. 2012). Missouri courts have interpreted the “tortious act” prong
to include “[e]xtraterritorial acts that produce consequences in the state.” Bryant v. Smith Interior
Design Grp., Inc., 310 S.W.3d 227, 232 (Mo. 2010). These categories are construed broadly, such
that if a defendant commits one of the acts specified in the long-arm statute, the statute will be
interpreted “to provide for jurisdiction ... to the full extent permitted by the [D]ue [P]rocess
[C]lause.” Viasystems, Inc. v. EBM-Papst St. Georgen GmbH & Co., KG, 646 F.3d 589, 593 (8th
Cir. 2011) (quotations omitted).
“Due process requires that there be minimum contacts between the nonresident defendant
and the forum state such that the assertion of personal jurisdiction is consistent with traditional
notions of fair play and substantial justice.” Wells Dairy, Inc. v. Food Movers Int’l, Inc., 607 F.3d
515, 518 (8th Cir. 2010) (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 29192 (1980); Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). “‘Sufficient contacts exist
when the defendant’s conduct and connection with the forum state are such that [it] should
reasonably anticipate being haled into court there.’” Id. (quoting Bell Paper Box, Inc. v. U.S. Kids,
Inc., 22 F.3d 816, 818 (8th Cir. 1994)). To support a finding of reasonable anticipation, “there
must be some act by which the defendant purposefully avails itself of the privilege of conducting

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activities within the forum [s]tate, thus invoking the benefits and protections of its laws.’” Id.
(quoting Bell Paper Box, Inc., 22 F.3d at 818–19).
Courts apply a five-factor test to determine the sufficiency of a non-resident defendant's
contacts with the forum state. Dever, 380 F.3d at 1073. The five factors are: “1) the nature and
quality of [the defendant’s] contacts with the forum state; 2) the quantity of the contacts; 3) the
relation of the cause of action to the contacts; 4) the interest of the forum state in providing a forum
for its residents; and 5) [the] convenience of the parties.” Id. at 1073–74 (quoting Burlington
Indus., Inc. v. Maples Indus., Inc., 97 F.3d 1100, 1102 (8th Cir. 1996)). The Court is to give
significant weight to the first three factors. Id. at 1074; Fastpath, Inc., 760 F.3d at 821.
Here, Frubbel does not argue that the conduct alleged in the Complaint falls outside of the
scope of Missouri’s long-arm statute or fails to meet the minimum contacts requirements of due
process, but rather it denies that it committed or was responsible for the alleged misconduct in the
Complaint. More specifically, Frubbel asserts that it “does not engage in any outbound
telemarketing, does not employ any outbound telemarketing vendors, and has not otherwise
authorized or have knowledge of any person or entity placing outbound telephone calls on its
behalf.” (ECF No. 6 at 2). Therefore, according to Frubbel, because it did not make or was not
responsible for the calls to Plaintiff’s phone, it has not availed itself of the jurisdiction of the courts
of Missouri, and this Court lacks personal jurisdiction over it.
In support of its motion and to contest the factual allegations in the Complaint, Frubbel
submitted the declaration of Randall Warren, Managing Member for Frubbel, LLC d/b/a ValuPass. Mr. Warren states in his declaration that since 2021, Frubbel has not “engaged in any
outbound telephone calls or text messages to market Frubbel’s products, or otherwise engaged in
outbound telemarketing or prospective customers.” (ECF No. 6, Ex. 1 at 1). He further states that

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since 2021, Frubbel has not engaged or authorized any person or entity to place any outbound calls
on its behalf or in an effort to sell Frubbel’s products.” (Id.) He states, “Frubbel did not initiate
any phone calls to Plaintiff’s phone number or authorize any party to place outbound calls on its
behalf, including the nine calls alleged in the Complaint.” (Id. at 2).
Plaintiff responded by filing a declaration he executed. Plaintiff states in his declaration
that he received nine phone calls from telemarketers who identified Valu-Pass as the company
they were calling on behalf. Plaintiff further states that when asked, telemarketers identified
Valu-Pass’s address, 1060 Maitland Center Commons Blvd, Suite 340, Maitland, Florida 32751,
which is also Frubbel’s address. Plaintiff further states that during conversations with the
telemarketers, he was informed that he could sign-up, enter his credit card information, and make
purchases through the Valu-Pass’s website, valu-pass.com. Plaintiff visited valu-pass.com and
attached screenshots of the website, which is powered by Frubbel. (ECF No. 11, Exs. 3-4).
In response to Plaintiff’s declaration, Mr. Warren executed a supplemental declaration in
which he admits that Frubbel owns and operates the website valu-pass.com but contends that
Frubbel has not utilized contact information of any individual that submitted information on the
valu-pass.com landing webpage since 2021.
Frubbel argues that the evidence before the Court demonstrates that it neither made nor
authorized the calls to Plaintiff’s phone. Frubbel further argues that in addition to Mr. Warren’s
declarations, which establish Frubbel was not responsible for the calls, it defies logic that Frubbel
or its agents would call Plaintiff and direct him to a website that “has not functioned in years.”
(ECF No. 12 at 1). Frubbel asserts that it is not uncommon for “unscrupulous fraudsters” to
conceal their identify by identifying as a legitimate business. (Id. at 2). Frubbel does not explain
why unscrupulous fraudsters would direct victims to another entity’s website.

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The Court has carefully reviewed Plaintiff’s allegations, Mr. Warren’s declarations,
Plaintiff’s declaration, and the exhibits and does not agree with Frubbel that there is only one
conclusion one can draw from the evidence in the record. In moving for dismissal, Frubbel is
asking the Court to credit Mr. Warren’s declarations over Plaintiff’s declaration. But at this early
stage in the proceeding, the evidence, which is conflicting, has yet to be tested by the litigation
process. Frubbel is also asking that the Court speculate in order fill in unanswered questions, such
as who could have made the calls if not Frubbel or its agents. In the Court’s view, depending on
the weight one assigns the declarations, there are a number of conclusions one could draw from
the limited evidence before the Court, one being that Frubbel or its agents made the calls to
Plaintiff’s phone. The Court finds Frubbel’s argument is unpersuasive.
Frubbel also points to three district court cases from outside the Eighth Circuit in support
of its argument that Plaintiff’s allegations and declaration are inadequate to establish personal
jurisdiction over Frubbel in Missouri. The district court cases Frubbel cites, however, are not
controlling authority and are distinguishable on the facts.
In Nelums v. Mandu Wellness, LLC, the plaintiff received text messages that never
identified the sender or seller. No. CV 2:22-828 KRS/GBW, 2023 WL 5607594, at *3 (D.N.M.
Aug. 30, 2023). Id. Here, there is evidence that Plaintiff received telephone calls and spoke with
telemarketers, who not only identified themselves as being agents of Valu-Pass, but directed
Plaintiff to valu-pass.com, a website Frubbel admits it owns and operates.
In Cunningham v. Local Lighthouse Corporation, the district court held that the plaintiff
failed to establish there was personal jurisdiction over two corporate officers based on
telemarketing calls and the plaintiff’s general allegations that the individual defendants
authorized the calls and failed to take appropriate measures to comply with the TCPA. No. 3:16-

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CV-02284, 2017 WL 4053759, at *2 (M.D. Tenn. Aug. 7, 2017), report and recommendation
adopted, No. 3:16-CV-02284, 2017 WL 4022996 (M.D. Tenn. Sept. 13, 2017). But notably, the
corporation did not contest personal jurisdiction. Id. Here, Plaintiff is seeking to hold a limited
liability company liable, not its members or officers.
Finally, in Baccari v. Carguard Administration, Inc., the defendants moved to dismiss the
complaint for lack of subject matter jurisdictions on standing grounds, not for lack of personal
jurisdiction. No. 22-CV-1952, 2022 WL 3213839, at *3 (E.D. Pa. Aug. 8, 2022). The defendant
made a factual challenge to subject matter jurisdiction, and the plaintiff failed to respond with
evidence. Id. Here, Frubbel is challenging personal jurisdiction, not subject matter jurisdiction,
and Plaintiff has come forward with evidence.
V. Conclusion
Frubbel contests that it made or authorized the telemarketing calls to Plaintiff’s phone – an
issue that is central to Plaintiff’s suit and amounts to a factual dispute on the merits of his claims.
In support of its contention, Frubbel submitted two declarations from one of its members. Plaintiff
countered Frubbel’s evidence with his own declaration. When, as here, the parties present
conflicting declarations on a motion to dismiss for lack of personal jurisdiction, the Court “must
view the evidence in the light most favorable to the plaintiff and resolve all factual conflicts in
[his] favor ….” Digi-Tel Holdings, Inc., 89 F.3d at 522. Viewing the evidence in a light most
favorable to Plaintiff, the Court finds Plaintiff has made the required, minimal evidentiary
showing for the Court to find it has specific personal jurisdiction over Frubbel. Johnson, 614
F.3d at 794. Plaintiff presented sufficient evidence to show that Frubbel or its authorized agents
purposely directed phone telemarketing calls to Plaintiff in Missouri knowing his phone number
was registered on the National and Missouri Do Not Call registries. Consequently, the Court

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finds Plaintiff has met his burden at this stage in the proceedings such that Frubbel is subject to
personal jurisdiction in this Court.
Accordingly,
IT IS HEREBY ORDERED that Defendant Frubbel, LLC’s Motion to Dismiss for lack
of personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure is
DENIED. [ECF No. 6]

_________________________________
RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE
Dated this 8th

day of May, 2024.

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