Arnold v. BPCL Management LLC, et al

Filing 19

MEMORANDUM OPINION AND ORDER by Senior District Judge James A. Parker granting Defendant BPCL's 9 MOTION TO DISMISS COMPLAINT FOR FAILURE TO STATE A CLAIM allowing Plaintiff to file a Second Amended Complaint no later than 8/30/17. (bap)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

JAMES L. ARNOLD,
Plaintiff,

v.

No. CIV 17-685 JAP/KK

GRAND CELEBRATION CRUISES, LLC and
BPCL MANAGEMENT LLC a/k/a BAHAMAS
PARADISE CRUISE LINE LLC,
Defendants.
MEMORANDUM OPINION AND ORDER
Defendant BPCL Management LLC (Defendant BPCL) seeks to dismiss all of Plaintiff
James L. Arnold’s (Plaintiff’s) claims against it for lack of personal jurisdiction and for failure to
state a claim upon which relief can be granted. DEFENDANT BPCL MANAGEMENT LLC’S
MOTION TO DISMISS PLAINTIFF’S COMPLAINT AND INCORPORATED
MEMORANDUM OF LAW IN SUPPORT (Doc. No. 9) (Motion to Dismiss). Plaintiff argues
that the Court should deny the Motion to Dismiss because he has made an adequate showing of
personal jurisdiction and because he has set forth sufficient allegations to state a claim.
PLAINTIFF’S RESPONSE TO MOTION TO DISMISS (Doc. No. 12) (Response). Defendant
BPCL asserts that “Plaintiff’s Response fails to meet his burden of rebutting BPCL’s submission
of proof of lack of jurisdictional contacts, and fails to point to allegations that succeed in stating
a plausible claim against BPCL.” DEFENDANT BPCL MANAGEMENT, LLC’S REPLY TO
PLAINTIFF’S RESPONSE TO THE MOTION TO DISMISS PLAINTIFF’S COMPLAINT
(Doc. No. 14) (Reply at 2).

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Background and Procedural History
On May 22, 2017, Plaintiff filed in the First Judicial District Court in the State of New
Mexico an AMENDED COMPLAINT FOR VIOLATIONS OF THE TELEPHONE
CONSUMER PROTECTION ACT, THE UNFAIR PRACTICES ACT AND TORTS (Doc. No.
1) (Amended Complaint), alleging, in part, that Defendant BPCL violated the Telephone
Consumer Protection Act (TCPA), 47 U.S.C. § 227, et seq. On June 29, 2017, Defendant BPCL
removed this case to federal court on the basis of federal question jurisdiction.1
Plaintiff contends that “Defendants own and operate a cruise ship named “The Grand
Celebration, which ports in Palm Beach County, Florida” and that “Defendants or their
telemarketers” called Plaintiff’s wireless cell phone in New Mexico to solicit business by using
auto-dialers (ATDS) or pre-recorded messages in violation of the TCPA. Amended Complaint,
¶¶ 4–16. More specifically, Plaintiff asserts that Defendants and/or their telemarketers
unlawfully: 1) used an ATDS to call Plaintiff’s cell phone; 2) used pre-recorded messages to
solicit business by calling Plaintiff’s cell phone without Plaintiff’s prior consent; and 3) made
telemarketing calls to Plaintiff’s cell phone by falsely using telephone numbers with a “505” area
code (“robot calls”) even though the robot call was made outside the 505 area code; and 4) made
robot calls to Plaintiff’s cell phone number by failing to disclose the name of the caller or the
telemarketer’s true name within 15 seconds. Amended Complaint ¶¶ 5, 7, 8, 9, 10, 12, 15.
Plaintiff further alleges that he is suing “each of Defendants[] or their telemarketers[]”
under the TCPA and the New Mexico Unfair Practices Act, and for “nuisance, trespass and
intentional infliction of aggravation and distress.” Id. ¶¶ 27, 30, 32. Plaintiff seeks trebled
1

In the Notice of Removal ¶ 12 (Doc. No. 1), Defendant BPCL noted that Plaintiff did not respond to inquiries
whether co-Defendant Grand Celebration Cruises, LLC (“Grand Celebration Cruises”) had been properly joined and
served with the Amended Complaint. However, Grand Celebration Cruise’s agent informed Defendant BPCL that it
had not been served with the Amended Complaint. Id. Thus, Defendant BPCL did not obtain consent to removal by
the co-Defendant. Id.

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damages up to $1500 for each violation of the TCPA and asks for an award of nominal and
punitive damages, which he believes total at least $50,000. Id. ¶¶ 26, 31. The Amended
Complaint also requests class certification under New Mexico Rule of Civil Procedure 1-023. Id.
¶¶ 33–50.
Motion to Dismiss
Defendant BPCL believes that dismissal is appropriate for lack of personal jurisdiction
under Fed. R. Civ. P. 12(b)(2) because BPCL is headquartered in Florida, incorporated under the
laws of Florida, and has no connection to the State of New Mexico. Motion to Dismiss at 4. In
addition, Defendant BPCL argues that the Amended Complaint fails to state a claim against
BPCL under Fed. R. Civ. 12(b)(6). Because the Court determines that Plaintiff’s allegations do
not establish personal jurisdiction over Defendant BPCL, the Court does not address BPCL’s
Motion to Dismiss for failure to state a claim.
Analysis
Rule 12(b)(2) Motion to Dismiss for Lack of Personal Jurisdiction
A.

Legal Standard

Personal jurisdiction may exist in two ways: 1) general jurisdiction and/or 2) specific
jurisdiction. A court has general jurisdiction over a defendant when the defendant’s contacts with
a state “are so ‘continuous and systematic’ as to render [the defendant] essentially at home in the
forum State.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)
(citation omitted). In contrast, “specific jurisdiction … ‘depends on an affiliation[n] between the
forum and the underlying controversy,’ principally, activity or an occurrence that takes place in
the forum State and is therefore subject to the State’s regulation.” Id. (citation omitted). Because

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Plaintiff does not appear to assert the existence of general jurisdiction, see Response at 6, this
Court addresses whether it has specific jurisdiction over non-resident Defendant BPCL.
Specific jurisdiction grows out of “the relationship among the defendant, the forum, and
the litigation.” Walden v. Fiore, ––– U.S. ––––, 134 S.Ct. 1115, 1121 (2014) (citation omitted).
If the “controversy is related to or ‘arises out of’ [Defendant BPCL’s] contacts with the forum[,]”
specific jurisdiction exists. Helicopteros Nacionales de Colom., S.A. v. Hall, 466 U.S. 408, 414
(1984) (citation omitted). The Tenth Circuit Court of Appeals observes that the specific
jurisdiction inquiry involves two steps.
First, we must determine whether the defendant has such minimum
contacts with the forum state “that he should reasonably anticipate
being haled into court there.” World–Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 297 (1979)). Second if the defendant’s
actions create sufficient minimum contacts, we must then consider
whether the exercise of personal jurisdiction over the defendant
offends “traditional notions of fair play and substantial justice.”
Asahi Metal Indus. Co. v. Superior Court of California, 480 U.S.
102, 113 (1987).
OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1090–91 (10th Cir. 1998).
Put differently, to establish specific jurisdiction, Plaintiff must show that Defendant
BPCL has sufficient minimum contacts with New Mexico and that jurisdiction over Defendant
BPCL does not offend “traditional notions of fair play and substantial justice.” Fireman’s Fund
Ins. Co. v. Thyssen Min. Constr. of Can., Ltd., 703 F.3d 488, 493 (10th Cir. 2012). A defendant
has sufficient minimum contacts with the forum state to support the exercise of specific
jurisdiction if two requirements are met: (1) “the defendant [has] purposefully directed his
activities at residents of the forum,” and (2) “the plaintiff’s claim arises out of or results from
‘actions by the defendant himself that create a substantial connection with the forum state.’” OMI
Holdings, 149 F.3d at 1091 (citations omitted) (emphasis in original).

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When a defendant challenges the Court’s jurisdiction, Plaintiff bears the burden of
demonstrating that jurisdiction exists. Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir.
1995). Plaintiff’s burden is light in the early stages of litigation before discovery. Id. For
example, where there is no evidentiary hearing and the jurisdictional question is decided on the
parties’ affidavits and written materials, Plaintiff need only make a prima facie showing of
personal jurisdiction. Id.
The Court accepts as true all well-pleaded facts (that are plausible, non-conclusory, and
non-speculative) alleged by Plaintiff unless Defendant controverts those facts by affidavit.
Shrader v. Biddinger, 633 F.3d 1235, 1248 (10th Cir. 2011). The Court resolves factual disputes
in the parties’ affidavits in Plaintiff’s favor. Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514
F.3d 1063, 1070 (10th Cir. 2008).
B.

Discussion

Plaintiff’s Amended Complaint alleges that both Defendants and/or their unidentified
telemarketers made the offending telephone calls. Amended Complaint ¶¶ 3, 4, 7, 10. Plaintiff
attempts to clarify in his Response to the Motion to Dismiss that he dismissed Defendant Grand
Celebration Cruises before the case was removed to federal court. Plaintiff states that he now
believes Grand Celebration Cruises “ha[d] nothing to do with the unlawful telemarketing the
subject of Plaintiff’s Complaint, but merely coincidentally bears the name of Defendant
[BPCL]’s cruise ship.” Response at 1. Plaintiff did not amend the caption of the Amended
Complaint or its allegations but now apparently contends that Defendant BPCL is the sole owner
and operator a cruise ship named “The Grand Celebration,” and that only Defendant BPCL uses
unidentified third-party telemarketers and/or travel agents to unlawfully “mass auto-dial
consumers across the USA.” Id.

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Defendant BPCL produced a Declaration of its Manager Daniel Lambert who states that
BPCL does not have any business or agents in New Mexico, has never had an employee or agent
visit New Mexico, has no affiliation with Defendant Grand Celebration Cruises, “has never
participated in, set-up, directed, controlled, or had the right to do any such things with respect to
the alleged telephone calls to Plaintiff[,]” does not employ third parties to make outbound
telemarketing calls on its behalf and does not itself make outbound telemarketing calls of the
kind Plaintiff alleges he received, “has never had any contractual or business relationship with or
controlled or had the right to control any [of Defendant] Grand Celebration [Cruise]’s
activities[,]” and did not receive any benefit from any outbound telemarking calls to persons in
New Mexico of the kind Plaintiff alleges he received. Lambert Decl. ¶¶ 4, 5, 7, 8, 9, 10, 12 (Doc.
No. 10).
In his Response, Plaintiff presents a mishmash of legal principles and argument. See
Response at 1–2 (setting out allegations from the Amended Complaint); 2–6 (discussing the
TCPA, its legislative history, and related case law; 6–11 (presenting the applicable law regarding
specific personal jurisdiction and related case law); 11–14 (arguing why Plaintiff has stated a
claim under the TCPA and why there is specific personal jurisdiction over Defendant BPCL);
14–16 (arguing why Plaintiff has stated a claim under the New Mexico Unfair Practices Act);
16–21 (setting forth additional law about specific personal jurisdiction and arguing why the
Court has specific personal jurisdiction over Defendant BPCL)2; and 21–22 (arguing why
Plaintiff has stated claims for nuisance, trespass, and intentional infliction of emotional distress).
In support of specific personal jurisdiction, Plaintiff asks the Court to conclude that
Defendant BPCL “caus[ed] illegal phone calls to be made into New Mexico, either itself or

2

Presumably, Plaintiff’s references to a defendant “PFG” on page 20 of the Response should have been to
Defendant BPCL.

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directly through its marketing agent(s).” Response at 16. Plaintiff argues that his attached
Declaration demonstrates that “Defendant [BPCL] either directly or by its agent made at least
one illegal phone call to Plaintiff’s cell phone.” Id. at 17. Plaintiff states that the single telephone
call he received on April 24, 2017 was from a number identified as “505-814-7123.” Arnold
Decl. ¶ 1 (Doc. No. 12–1). Plaintiff represents that when he answered the telephone call on April
24, 2017, he was greeted by a pre-recorded message saying the call was from “Jeff,” a “personal
travel consultant.” Id. Plaintiff’s Declaration further states:
The recorded message spoke about a cruise and trip to Orlando
then allowed me to transfer to a real person. When I transferred to
a real person, a person came on the line who said she was “Marie”
from the “Orlando Welcome Center” which was connected to
“Grand Celebration Cruises”. The statements Marie made to me
implied that she was calling on behalf of Grand Celebration
Cruises. She attempted to sell me a 3-day cruise to “Grand Bahama
Island” on the Grand Celebration Cruise Ship. I asked “Marie” if I
could think about it and if there was a number I could call them
back at. She said I could call back at 844-554-7263.
I called 505-814-7123 back later but when I did I only got a
message that said “Thanks for calling. The survey you were called
for is now finished.
Id. ¶¶ 1–2.
Plaintiff also asserts that Mr. Lambert’s Declaration “cannot be a basis for dismissal of
Plaintiff’s Amended Complaint because the facts alleged by Lambert are controverted by the
Plaintiff’s Declaration.” Id. at 13. Plaintiff contends that there are “disputed genuine issues of
material fact[,] that “[t]he telemarketers in this case implied they were working for Defendant[,]
and that “[t]he telemarketer said the caller was ‘connected’ to Defendant.” Id. at 13–14. Plaintiff
asks to conduct some discovery regarding the sources of the telephone calls he received, of the
telephone number from which he received the call on April 24, 2017, and of “Defendant’s recent
bookings for cruises.” Id. at 14.
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Plaintiff’s request for discovery illustrates the problem he has in demonstrating this
Court’s specific personal jurisdiction over Defendant BPCL, namely that Plaintiff does not know
who called him on April 24, 2017 or who has “repeatedly call[ed] Plaintiff’s cell phone” for
purposes of attempting to sell someone’s goods or services. See Amended Complaint ¶ 10.
Plaintiff initially alleged that both Defendants BPCL and Grand Celebration Cruises, and/or their
telemarketers, made the pertinent telephone calls. Amended Complaint ¶¶ 6–17. These
allegations imply that the two Defendants were acting together. Then Plaintiff conceded that
Defendant Grand Celebration Cruises “had nothing to do with the unlawful telemarketing.”
Response at 1. Yet, Plaintiff did not amend the allegations in the First Amended Complaint.
Instead, Plaintiff engages in a guessing game, i.e., speculating that if Defendant Grand
Celebration Cruises did not make the offending telephone calls, it must have been Defendant
BPCL. Even accepting as true all of Plaintiff’s well-pleaded allegations, Plaintiff’s allegations do
not suffice in demonstrating specific personal jurisdiction over Defendant BPCL.
The Court recognizes that it must resolve all disputes in the parties’ affidavits in
Plaintiff’s favor at this stage of the litigation. Behagen v. Amateur Basketball Ass’n of U.S.A.,
744 F.2d 731, 733 (10th Cir. 1984), cert. denied, 471 U.S. 1010 (1985). However, Plaintiff has
not identified a dispute. Plaintiff argues that his own Declaration controverts Mr. Lambert’s
Declaration, but Plaintiff does not specify any statement in his Declaration that contradicts Mr.
Lambert’s representations that Defendant BPCL did not direct or control the alleged telephone
calls to Plaintiff and did not employ any third parties to make outbound telemarketing calls of the
kind Plaintiff alleges he received. According to Plaintiff, the “telemarketers in this case implied
they were working for Defendant” and during the April 24, 2017 telephone call, the telemarketer

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said the caller was “connected” to Defendant. Response at 13–14. The Court simply will not
make the same leap that Plaintiff has made.
For example, Plaintiff declares that Marie, the alleged telemarketer, told Plaintiff that she
was from the “Orlando Welcome Center” that was connected to “Grand Celebration Cruises.”
Arnold Decl. ¶ 1. The Amended Complaint merely avers that “Defendants own and operate a
cruise ship named “Grand Celebration, which ports in Palm Beach County, Florida.” Amended
Complaint ¶ 4. There are no allegations that connect Defendant BPCL to the “Orlando Welcome
Center” or to an entity named “Grand Celebration Cruises.” As already noted, Grand Celebration
Cruises is the name of the Defendant that Plaintiff states he has dismissed from this lawsuit as
having had nothing to do with the alleged wrongful telephone calls. Response at 1. Moreover,
while the Amended Complaint may allege that Defendant BPCL sometimes chooses to call itself
“Bahamas Paradise Cruise Line LLC,” Amended Complaint ¶ 3, there is no similar allegation
that BPCL calls itself Grand Celebration Cruises or even that BPCL owns a cruise ship named
“Grand Celebration Cruises.” See id. ¶ 4. Furthermore, in contrast to Plaintiff’s supposition,
Marie, the alleged telemarketer, did not say she was “connected” to Defendant BPCL. There was
no mention of BPCL or Bahamas Paradise Cruise Line LLC during the April 24, 2017 telephone
call upon which Plaintiff relies. Thus, while Plaintiff may choose to infer that Marie was acting
on behalf of Defendant BPCL, Marie’s alleged statements do not allow the Court to infer that the
telemarketer was operating on behalf of Defendant BPCL.
In Bound v. Grand Bahama Cruise Line, LLC and Cruise Operator, Inc., 15-CV-2856
LMM (N.D. Ga. Jan. 19, 2016) (unpublished) (Doc. No. 14–1), the United States District Court
in the Northern District of Georgia reached a similar conclusion in deciding the question of
personal jurisdiction. In Bound, Mr. Lambert also provided a Declaration, wherein he testified

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that the defendant did not operate in Georgia and did not engage in outbound telephone
solicitation calls, either directly or through third parties. Id. at 5–6. The Bound Court concluded
that the plaintiff’s arguments and speculation were “too attenuated to link [the defendant] to the
calls [p]laintiff received in Georgia.” Id. at 9. The Court, in Bound, reasoned that the only
evidence the plaintiff provided did not directly connect the alleged wrongful conduct to the
defendant. Id. And, the only testimony in the plaintiff’s affidavit about telephone calls he
allegedly received did not mention the defendant. Id. at 9–10. Because the plaintiff failed to
provide any logical connection between the defendant and the telephone calls, the Court could
not infer that the defendant’s activities fell within the Georgia long-arm statute. Id. at 10. Thus,
the Court, in Bound, declined to exercise jurisdiction “based on purely speculative allegations
which are contradicted by evidence.” Id.
This Court finds the Bound decision persuasive due to the very similar arguments and
facts presented in both proceedings. In contrast, the Court is unpersuaded by Plaintiff’s reliance
on Ott v. Mortg. Inv. Corp. of Ohio, Inc., 65 F. Supp. 3d 1046 (D. Or. 2014), where the United
States District Court in the District of Oregon determined that it had personal jurisdiction over
the individual defendants. In Ott, the plaintiffs’ complaint contained numerous specific
allegations regarding the defendant’s telephone calls to the plaintiffs. Id. at 1053. For example,
the complaint in Ott alleged, inter alia, that “hundreds of telemarketers use written scripts to
make unsolicited outbound telephone calls, encouraging consumers to schedule in-home sales
appointments with company-affiliated loan officers.” Id. The plaintiff also averred that the
defendant made more than 5.4 million calls to numbers listed on the “Do Not Call” list and that
thousands of consumers had filed complaints about the calls to the FTC. Id. at 1053–54. There
are no similar allegations in the present proceeding.

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Moreover, the individual defendants in Ott, unlike Defendant BPCL, did not appear to
challenge the allegation that they were involved in the pertinent telemarketing operations. See id.
at 1057 (noting the individual defendants’ position that the mere oversight of their company’s
telemarketing operations could not support personal jurisdiction). In sum, the allegations in Ott
are distinguishable from Plaintiff’s speculative, vague, and scant jurisdictional allegations
against Defendant BPCL.
Therefore, even after considering the pleadings and affidavits in the light most favorable
to Plaintiff, the Court finds that Plaintiff has failed to demonstrate that Defendant BPCL has
sufficient minimum contacts with the State of New Mexico and/or that jurisdiction over
Defendant BPCL would not offend “traditional notions of fair play and substantial justice.” See
Fireman’s Fund Ins. Co., 703 F.3d at 493. Accordingly, the Court concludes that it lacks
personal jurisdiction over Defendant BPCL and will grant Defendant BPCL’s Motion to Dismiss
under Rule 12(b)(2).
With respect to Plaintiff’s possible request to conduct jurisdictional discovery, see
Response at 14, the Court denies the request. Here, Plaintiff’s claim of personal jurisdiction over
Defendant BPCL “appears to be both attenuated and based on bare allegations in the face of
specific denials” made by Defendant BPCL. See Pebble Beach Co. v. Caddy, 453 F.3d 1151,
1160 (9th Cir. 2006) (citation omitted). “The Federal Rules of Civil Procedure require[] [a
p]laintiff to have a good-faith basis for asserting personal jurisdiction over [a d]efendant[] prior
to filing his complaint.” Weisler v. Cmty. Health Sys., Inc., No. CIV. 12-0079 MV/CG, 2012 WL
4498919, at *15 (D.N.M. Sept. 27, 2012). Under the present circumstances, the Court need not
permit even limited jurisdictional discovery.

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However, the Court elects to dismiss this proceeding without prejudice so that Plaintiff
has an opportunity to file a Second Amended Complaint to the extent he can, consistent with
Fed. R. Civ. P. 11, allege sufficient jurisdictional facts against an appropriate Defendant.
IT IS THEREFORE ORDERED that:
(1)

DEFENDANT BPCL MANAGEMENT LLC’S MOTION TO DISMISS

PLAINTIFF’S COMPLAINT AND INCORPORATED MEMORANDUM OF LAW IN
SUPPORT. (Doc. No. 9) is GRANTED with the result that Plaintiff’s Amended Complaint is
DISMISSED without prejudice for lack of personal jurisdiction; and
(2)

By no later than August 30, 2017, Plaintiff may file a Second Amended

Complaint, provided he can, consistent with Fed. R. Civ. P. 11, allege sufficient jurisdictional
facts against an appropriate Defendant.

__________________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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