ZELMA et al v. BURKE et al

Filing 14

OPINION. Signed by Judge Claire C. Cecchi on 1/4/2017. (JB, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RICHARD
ZELMA,

M.

ZELMA

and

NICOLE

Civil Action No.: 2:16-02559-CCCMF

Plaintiffs,
v.

OPINION

PATRICK BURKE, individually and as CEO
of Computer Telephony Innovations, Inc.;
BRUCE BURKE, individually and as
Chairman and Senior Officer of Computer
Innovations,
Inc.;
Telephony
and
TELEPHONY
COMPUTER
IM’1OVATIONS,
INC.
dJb/aJ
VOXTELESYS.COM,
Defendants.
CECCHI, District Judge.
I.

INTRODUCTION
This matter comes before the Court on the motion of Defendants Computer Telephony

Innovations, Inc. (“CTI”), Patrick Burke, and Bruce Burke (collectively, “Defendants”) to dismiss
the Complaint ofpro se Plaintiffs Richard M. Zelma and Nicole Zelma (collectively, “Plaintiffs”)
pursuant to federal Rule of Civil Procedure 1 2(b)(6), and the motion of Patrick Burke and Bruce
Burke to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(2) and 12(b)(6).
ECF Nos. 6, 7. Plaintiff Richard Zelma opposes the motions.1 ECF No. 12. No oral argument

‘It appears Plaintiff Richard Zelma signed the opposition to Defendants’ motions on behalf of
Plaintiff Nicole Zelma. As apro se litigant, Plaintiff Richard M. Zelma may not represent Plaintiff
Nicole Zelma in any capacity, or sign and submit documents on her behalf. $ç 2$ U.S.C. § 1654;
In re Cook, 589 F. App’x 44, 46 (3d Cir. 2014). Therefore, the Court will consider Defendants’
motions to be unopposed by Plaintiff Nicole Zelma. Any further documents signed and submitted
by Plaintiff Richard Zelma on behalf of any other individual will be stricken as to the other party.
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was heard. See fed. R. Civ. P. 78. For the reasons set forth below, Defendants’ motions are
granted.
II.

BACKGROUND
The following facts are accepted as true for purposes of the instant motions. Richard M.

Zelma is a resident of Norwood, New Jersey, and Nicole Zelma is a resident of Dumont, New
Jersey. Complaint “Compl.” ECF No. 1-1

¶ 3, 4.

Defendant CTI is a corporation with its principal

place of business in Nebraska. j ¶ 6. Defendants Patrick and Bruce Burke own and operate CII.
Id.

¶

5. CII is a common carrier, licensed by the Federal Communications Commission, and

provides phone number subscription services, identification services, automated dialing with
announcement, and call routing. j4 ¶ 15. The Complaint also alleges CTI has a call center through
which it engages. Id.

¶ 20.

Plaintiffs allege CTI used an automatic dialing and announcement device to initiate
unwanted telephone calls to each of their cell phone numbers.
produced a local number on Plaintiffs [sic] caller ID.

.

.

Jci ¶ 44-46, 55.

“Each call received

which when dialed, failed to reach a live

representative during normal business hours.” j ¶ 63. Plaintiffs allege Defendants “knowingly
hid, blocked or deprogrammed the real phone numbers from which the calls [were] initiated to
purposely hide the true identity of the call centers.” Id.

¶ 64.

The companies identified in the subject calls were America’s Choice Construction and All
American Chimney & Duct Cleaning. j ¶ 24. As CII has not produced the information for these
companies, Plaintiffs “believe[] these entities do not exist and are merely a fabrication of CTI to
hide its own prohibited calls.” Id. “Upon Plaintiffs [sic] understanding and belief, [these] are

See fed. R. Civ. P. 11 (“Every pleading, written motion, and other paper must be signed. . . by a
party personally if the party is unrepresented. The paper must state the signer’s address, e-mail
address, and telephone number.... The court must strike an unsigned paper. .“).
.

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merely vaporous entities fabricated by the Burke’s [sici in one of several attempts to harvest names
of homeowners,” which could then be sold to “contractors throughout the area.” Id.

¶ 31.

Plaintiffs filed a Complaint on April 1, 2016 with the Superior Court ofNew Jersey, Bergen
County Law Division. See Compl. On May 6, 2016, Defendants removed this matter to federal
court. ECF No. 1. In the Complaint, Plaintiffs assert three counts in violation of the Telephone
Consumer Protection Act (“TCPA”): (1) Violation of 47 U.S.C.

§

227(b)(1)(B), prohibiting the

use of an automated telephone dialing and announcement device; (2) Violation of 47 U.S.C.

§

227(c), providing a private right of action for an individual receiving more than one telephone call
in any twelve-month period by an entity in violation of the regulations; and (3) Treble Damages
for Willful or Knowing Violations of the TCPA, 47 U.S.C.
III.

§ 227(b)(3)(C).

DISCUSSION
Defendants argue the Complaint should be dismissed for failure to state a claim under Rule

12(b)(6) and for lack of personal jurisdiction over Patrick and Bruce Burke under Rule 12(b)(2).
As personal jurisdiction is a threshold matter, the Court will address Defendants’ motion to dismiss
under 1 2(b)(2) before addressing whether the Complaint is sufficiently pled. See Tagayun v. Lever
& Stolzenberg, 239 F. App’x 708, 710 (3d Cir. 2007).
A.

Dismissal Pursuant to Federal Rule of Civil Procedure Rule 12(b)(2)

Defendants Patrick and Bruce Burke (the “Burkes”) argue this Court lacks personal
jurisdiction over them because they “have no connections whatsoever to New Jersey.” ECF No.
7 at 1. “Personal jurisdiction analysis looks to the forum state’s long-arm statute and the Due
Process Clause of the fourteenth Amendment.” Arpaio v. Dupre, 527 F. App’x 108, 112 (3d Cir.
2013). Because New Jersey’s long-arm statute permits the exercise of personal jurisdiction to the
full extent allowed under the Due Process Clause, “the two jurisdictional inquiries in this case

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collapse into one: whether the exercise ofjurisdiction comports with due process.” Senju Pharm.
Co. v. Metrics, Inc., 96 F. Supp. 3d 428, 435 (D.N.J. 2015). There are two types of personal
jurisdiction that reflect the requirements of the Due Process Clause of the fourteenth
Amendment—general jurisdiction and specific jurisdiction. Marten v. Godwin, 499 F.3d 290, 296
(3d Cir. 2007).
The Complaint alleges “{tJhis Court has general jurisdiction

.

.

.

where the Defendant[s]

engaged in substantial, continuous and systematic activities, repeatedly initiating unwanted autodialed calls into New Jersey...

.“

Compl.

¶

11. “For an individual, the paradigm forum for the

exercise of general jurisdiction is the individual’s domicile.” Goodyear Dunlop Tires Operations,
$.A. v. Brown, 564 U.S. 915, 924 (2011). Here, the Complaint does not allege the Burkes are
domiciled in the state of New Jersey, but rather that the Burkes conduct the day-to-day operations
of CTI, which is “believed to be located” in Nebraska. Compl. ¶6. Therefore, as the Complaint
does not allege the Burkes are domiciled in the state of New Jersey, this Court does not have
general jurisdiction over the Burkes.
Next, the Complaint alleges “[tjhis Court has specific jurisdiction over the Defendants
under authority of N.J.$.A. §56:8-119 as Defendants were strictly prohibited from soliciting
Plaintiffs as New Jersey residents and the controlling jurisdiction in which the violations
occurred.” Compl. ¶ 10. As previously stated, however, this Court may assert specific jurisdiction
to the extent allowed by the Due Process Clause of the fourteenth Amendment, and thus this
statute does not provide this Court with additional jurisdictional authority over Defendants.

$

Fatouros v. Lambrakis, 627 F. App’x 84, 87 (3d Cir. 2015), cert. denied, 137 S. Ct. 79 (2016).
Rather, specific jurisdiction describes the authority to exercise jurisdiction “when [a] claim
arises from or relates to conduct purposely directed at the forum state.” Kehm Oil Co. v. Texaco,

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Inc., 537 F.3d 290, 300 (3d Cir. 200$). “When a defendant challenges a court’s exercise of
personal jurisdiction in a 1 2(b)(2) motion, the plaintiff bears the burden of establishing personal
jurisdiction by a preponderance of the evidence and must do so by ‘establishing with reasonable
particularity sufficient contacts between the defendant and the forum state.” Petrucelli v. Rusin,
642 F. App’x 108, 109 (3d Cir. 2016) (quoting Mellon Bank (East) PSFS, Nat’l Ass’n v. Farino,
960 F.2d 1217, 1223 (3d Cir. 1992)). Where, as here, “the court does not hold an evidentiary
hearing on the motion to dismiss, the plaintiff need only establish a prima fade case of personal
jurisdiction.” Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 97 (3d Cir. 2004). In determining
whether Plaintiff has established aprimafacie case, the Court is required to “accept the allegations
in the complaint as true and to construe any disputed facts in [Plaintiffs] favor.” Fatouros, 627 F.
App’x at 87. Still, for Plaintiff to meet his burden, he “must ‘establish[J jurisdictional facts through
sworn affidavits or other competent evidence.” Cerciello v. Canale, 563 F. App’x 924, 925 n.l
(3d Cir. 2014) (quoting Miller Yacht Sales, Inc., 384 F.3d at 101 n.6).
“Determining whether specific jurisdiction exists involves three steps: (1) the defendant
must have purposefully directed his activities to the forum; (2) the plaintiffs claim must arise
out of or relate to at least one of those specific activities; and (3) the assertion ofjurisdiction
must otherwise comport with fair play and substantial justice.” Arpaio, 527 F. App’x at 112.
Here, Plaintiffs have not submitted affidavits, sworn declarations or certifications to
support their claims that this Court has personal jurisdiction over the Burkes. See Cerciello, 563
F. App’x at 925 n. 1 (“[B]are pleadings alone are insufficient to withstand a motion to dismiss for
lack of personal jurisdiction.”) (internal quotation marks omitted). Nonetheless, viewed in the
light most favorable to Plaintiffs, the Complaint does not allege with sufficient particularity

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conduct performed by the Burkes individually which was purposely directed at the forum state of
New Jersey.
The Complaint contains two allegations against the Burkes specifically.

First, the

Complaint alleges “Plaintiff made several diligent inquires [sic] with Defendant Bruce Burke to
provide more specific information on his client, but regretfully Burke refused to do so.” Compi.

¶

8. It is well established that unilateral conduct by a plaintiff cannot form the basis for specific

jurisdiction. See Walden v. Fiore, 134 S. Ct. 1115, 1122 (2014) (“[T]he plaintiff cannot be the
only link between the defendant and the forum. Rather, it is the defendant’s conduct that must
form the necessary connection with the forum State that is the basis for itsjurisdiction over him.”).
Next, the Complaint alleges “[tJhe Burke Defendants used their services, initiated outbound
telephone calls to both Plaintiffs [sic] homes, to induce the purchase of repair and maintenance
services from the yet unidentified Doe defendants.” Compi.

¶

26. The Complaint states that

because Defendants had not provided Plaintiffs with information of the companies that placed
telephone calls to Plaintiffs’ homes, that Plaintiffs therefore “believed these entities do not exist
and are merely a fabrication of CTI to hide its own prohibited calls.” Compi.

¶

24. Plaintiffs’

speculative and conclusory allegations against the Burke Defendants are insufficient to meet their
burden to prove aprimafacia case of specific jurisdiction with reasonable particularity.
In Arpaio v. Dupre, the Third Circuit found the plaintiff had “not presented evidence
sufficient to demonstrate facts that establish specific personal jurisdiction over” the defendant
when the plaintiff failed to provide evidence that video footage giving rise to the plaintiffs
complaint was distributed by the defendants in New Jersey or elsewhere. Similarly, here, Plaintiffs
have not provided any evidence that the phone calls giving rise to their Complaint were initiated
by the Burkes. See Pinker v. Roche Holdings Ltd., 292 F.3d 361, 368 (3d Cir. 2002) (“[T]he

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plaintiff bears the burden of demonstrating the facts that establish personal jurisdiction

.

.

.

Accordingly, the Burkes’ motion to dismiss pursuant to Rule 12(b)(2) for lack of jurisdiction is
granted.
B.

Dismissal Pursuant to Federal Rule of Civil Procedure Rule 12(b)(6)

For a complaint to survive dismissal pursuant to Federal Rule of Civil Procedure 1 2(b)(6),
it “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.” Ashcroft v. Igbal, 556 U.S. 662 (2009) (quoting Bell Ati. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). In evaluating the sufficiency of a complaint, the Court must accept all wellpleaded factual allegations in the complaint as true and draw all reasonable inferences in favor of
the non-moving party. See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 200$).
However, “the tenet that a court must accept as true all of the allegations contained in a complaint
is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 67$. “Factual
allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550
U.S. at 555. “A pleading that offers labels and conclusions will not do. Nor does a complaint
suffice if it tenders naked assertion[sJ devoid of further factual enhancement.” Igbal, 556 U.S. at
67$ (internal citations omitted).
A pro se litigant’s complaint is held to “less stringent standards than formal pleadings
drafted by lawyers.” Haines v. Kemer, 404 U.S. 519, 520-21 (1972). Courts have a duty to
construe pleadings liberally and apply the applicable law, irrespective of whether a pro se litigant
has mentioned it by name. Mala v. Crown Bay Marina, Inc., 704 f.3d 239, 244 (3d Cir. 2013);
Diuhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003); Higgins v. Beyer, 293 F.3d 683, 68$ (3d
Cir. 2002). A pro se complaint “can only be dismissed for failure to state a claim if it appears

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beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle
him to relief.” Estelle v. Gamble, 429 U.S. 97, 106 (1976) (citing Haines, 404 U.S. at 520-21);
Bacon v. Minner, 229 F. App’x 96, 100 (3d Cir. 2007).
Defendant CTI argues that the Complaint fails to state a claim, as “the Complaint makes
clear, the alleged calls were placed, if at all, by ‘Americas [sic] Choice Construction and/or All
American Chimney & Duct Cleaning,’ or someone on their behalf,” rather than Defendant CTI
itself. ECF No. 6 at 1. While the Complaint does allege Defendant CTI itself placed the phone
calls, Plaintiffs’ speculative pleading does not suffice to state a claim. The Complaint alleges that
because CTI failed to “provide the true identity” of these entities, Plaintiffs believe “these entities
do not exist and are merely a fabrication of CTI to hide its own prohibited calls.” Compi.

¶ 24.

The Complaint further states “Defendant CII engaged in this prohibited telemarketing to induce
consumers to invest in remodeling or maintenance services for their home.” Id.

¶ 32.

Plaintiffs’

Complaint provides no further facts to support their belief that Defendant CTI placed the phone
calls itself. The Court finds Plaintiffs’ admittedly speculative assertions without “further factual
enhancement” are insufficient to state a claim upon which relief can be granted. See Igbal, 556
U.S. at 67$; Twombly, 550 U.S. at 555. (“factual allegations must be enough to raise a right to
relief above the speculative level.”). Accordingly, Defendant CTI’s motion to dismiss pursuant to
Rule 12(b)(6) is granted.

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IV.

CONCLUSION
for the reasons set forth above, Defendants’ motions to dismiss are granted. To the extent

the pleading deficiencies identified by this Court can be cured by way of amendment, Plaintiffs
are hereby granted thirty (30) days to file an amended pleading.

An appropriate Order

accompanies this Opinion.

C

Date:____________

CLAIRE C. CECCHI, U.S.D.J.

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