Jackson v. KWU Company et al

Filing 13

MEMORANDUM (Order to follow as separate docket entry) re: 8 MOTION to Dismiss. Signed by Chief Judge Matthew W. Brann on 9/24/2024. (ea)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JEREMY JACKSON,

No. 4:24-CV-01275

Plaintiff,

(Chief Judge Brann)

v.
KWU CO., et al.,
Defendant.
MEMORANDUM OPINION
SEPTEMBER 24, 2024
Currently pending before the Court is a Motion to Dismiss by Defendants,
KWU Co. (“KWU”) and Barry Glen Taylor (“Taylor”). For the reasons below, the
Motion is denied.
I.

BACKGROUND
Plaintiff, Jeremy Jackson (“Jackson”), alleges that KWU and its owner,

Taylor, are responsible for at least eight “unsolicited telemarketing calls” he
received on his personal cell phone in early 2024.1 According to Jackson, the calls
entailed a pre-recorded message advertising various pharmaceuticals for sale.2
Jackson was unable to return any of the telemarketing calls, which, paired with the
pre-recorded voice, led him to believe that they were made using an Automated

1
2

Doc. 1-1 ¶ 14.
Id. ¶¶ 15, 17.

Telephone Dialing System and caller ID spoofing.3 To determine who was behind
the calls, Jackson purchased some of the advertised pharmaceuticals for $140 and
was apparently charged by KWU.4 Jackson argues that these calls and their
contents violated the Federal Telephone Consumer Protection Act (“TCPA”) and
the Pennsylvania Unfair Trade Practices and Consumer Protection Law
(“UTPCPL”).5
In June 2024, Jackson sued KWU and Taylor in the Court of Common Pleas
of Centre County.6 Defendants removed the case to this Court and moved to
dismiss. They argue that Jackson lacks standing because he intentionally purchased
the advertised products to create the basis for this suit, an act motivated by his
work as an attorney who litigates TCPA claims.7 They also contend that dismissal
is necessary because Jackson failed to name the supposed true caller, Walkin
Global LLP (“Walkin”), as a defendant.8 Defendants explain that KWU is merely
Walkin’s United States payment processor—a service that Taylor provides in
exchange for Walkin products.9 

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4
5
6
7
8
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Id. ¶ 19.
Id. ¶ 20. Jackson does not directly explain that his purchase revealed Defendants’ identities,
but that it did is plainly inferred.
Id. ¶¶ 37-60; see 47 U.S.C. § 227; 73 P.S. § 201-1.
See Doc. 1-1.
See Doc. 9
See id.
Id. at 3-5.
2

II.

ANALYSIS
A.

Standing

“[S]tanding ‘consists of two related components: the constitutional
requirements of Article III and nonconstitutional prudential considerations.’”10
Article III standing is necessary to invoke the jurisdiction of a federal court and
requires the plaintiff to establish: (1) that he has suffered an “injury in fact” (2) that
is “fairly traceable to the challenged action of the defendant,” and (3) it is likely
“that the injury will be redressed by a favorable decision.”11 Given its jurisdictional
nature, challenges to Article III standing are properly brought under Federal Rule
of Civil Procedure 12(b)(1).12 A defendant challenging jurisdiction under Rule
12(b)(1) may raise a facial attack, asserting that the pleadings are insufficient to
establish jurisdiction, or a factual attack, in which the Court may consider evidence
to determine the factual basis of its jurisdiction.13 “The burden of establishing
federal jurisdiction rests with the party asserting its existence.”14 In a facial
challenge, the pleadings are viewed in the light most favorable to the plaintiff; in a

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12
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14

Potter v. Cozen & O’Connor, 46 F.4th 148, 154 (3d Cir. 2022) (quoting Franchise Tax Bd. of
Cal. v. Alcan Aluminum Ltd., 493 U.S. 331, 336 (1990)); Hartig Drug Co. v. Senju Pharm.
Co., 836 F.3d 261, 269-70 (3d Cir. 2016).
Potter, 46 F.4th at 154 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)).
See Ballentine v. United States, 486 F.3d 806, 810 (3d Cir. 2007).
Lincoln v. Ben. Life Co. v. AEI Life, LLC, 800 F.3d 99, 105 (3d Cir. 2015).
Id.
3

factual attack, the plaintiff bears the burden of proving that jurisdiction exists by a
preponderance of the evidence.15
Prudential standing, on the other hand, derives from “judge-made doctrines
. . . meant to help the courts ‘avoid deciding questions of broad social import
where no individual rights would be vindicated and to limit access to the federal
courts to those best suited to assert a particular claim.’”16 A plaintiff is likely to
have prudential standing, although these considerations are not exhaustive, if: (1)
he is asserting his own legal rights, rather than those of another; (2) his grievance
is not abstract and generalized; and (3) his “complaint fall[s] within the zone of
interests protected by the law invoked.”17 Because it is nonjurisdictional, prudential
standing is analyzed under the Rule 12(b)(6) standard, which places the burden on
the movant to show that the plaintiff has failed to state a claim when all well-pled
allegations are accepted as true and all reasonable inferences drawn in his favor.18
Turning first to the threshold issue of Article III standing,19 the Defendants
primarily contend that Jackson has not alleged an injury in fact because “the only
economic harm suffered” was his $140 pharmaceutical purchase which he admits
15
16
17

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19

Id.; see Potter, 46 F.4th at 154-55; Hartig Drug, 836 F.3d at 268.
Potter, 46 F.4th at 154 (quoting Freeman v. Corzine, 629 F.3d 146, 154 (3d Cir. 2010)).
Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 126 (2014) (quoting Elk
Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004)); Lewis v. Alexander, 685 F.3d
325, 340 (3d Cir. 2012) (citing Mariana v. Fisher, 338 F.3d 189, 205 (3d Cir. 2003)).
Potter, 46 F.4th at 157.
See Hartig Drug, 836 F.3d at 269 (“Article III standing is . . . ‘a threshold issue that must be
addressed before considering issues of prudential standing.’” (quoting Miller v. Nissan Motor
Acceptance Corp., 362 F.3d 209, 221 n.16 (3d Cir. 2004))).
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was solely to determine the identity of the caller.20 This argument is inadequate.
The TCPA itself identifies the primary type of injury to which it is addressed: the
nuisance and invasion of privacy resulting from automated or prerecorded phone
calls.21 Those privacy interests are well-rooted in the common law, and their
violation is sufficient to establish an Article III injury in fact, without the need for
any economic injury at all.22
Nevertheless, Defendants also argue that the calls did not invade Jackson’s
privacy because he is an attorney who litigates TCPA cases.23 According to
Defendants, given Jackson’s sophistication and profession, the calls were actually
a boon. They rely on Stoops v. Wells Fargo Bank, N.A., a case in which the
Honorable Kim R. Gibson, writing for the United States District Court for the
Western District of Pennsylvania, granted summary judgment against Ms. Stoops,
a TCPA plaintiff, for lack of standing.24 Stoops is readily distinguishable.
Ms. Stoops was, by her own description, “doing TCPA violations as a
business.”25 To generate TCPA claims, Ms. Stoops acquired nearly forty different
cell phone numbers, registered their area codes in geographies where credit

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21
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24
25

Doc. 9 at 6-7; see Doc. 1-1 ¶ 20.
Susinno v. Work Out World Inc., 862 F.3d 346, 351 (3d Cir. 2017).
Id. at 351-52; see Manual v. NRA Grp. LLC, 772 F. App’x 141, 145-46 (3d Cir. 2018) (applying
Susinno).
Doc. 9 at 6-7.
Stoops v. Wells Fargo Bank, N.A., 197 F. Supp. 3d 782 (W.D. Pa. 2016).
Id. at 798.
5

defaults were more likely, and monitored them for automated calls.26 When calls
came in, she documented their source and strategically requested that they stop
calling as a means to access the TCPA’s treble damages provision for knowing and
willful violations.27 Ms. Stoops never used any of the phone numbers to make or
receive personal calls.28 Accordingly, Judge Gibson concluded that Ms. Stoops
invited the calls at issue and they were therefore not an invasion of privacy.29
In contrast, although Jackson may be more knowledgeable than most
regarding the TCPA, there is nothing in the record to suggest that he sought out the
infringing calls like Ms. Stoops. Jackson received the calls on his personal cell
phone number which he had registered on the National Do-Not-Call Registry to
protect against automated calls.30 That is a far cry from Ms. Stoops’s cell phone
farm. The mere fact that Jackson may have recognized the potential for profit does
not equate to an invitation-to-call.31 Jackson has sufficiently alleged that he
suffered a concrete injury for Article III standing.

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27
28
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Id. at 799.
Id. at 799-800.
Id. at 799.
Id. at 800.
Doc. 1-1 ¶¶ 14, 20.
See Abante Rooter & Plumbing, Inc. v. Creditors Relief, LLC, No. 20-CV-3272, 2020 WL
9397554, at *4 (D.N.J. Dec. 10, 2020) (holding that calls invaded a serial TCPA plaintiff’s
privacy and established an injury in fact for Article III standing at the motion to dismiss stage);
Shelton v. Nat’l Gas & Elec., LLC, No. 17-CV-4063, 2019 WL 1506378, at *4-5 (E.D. Pa.
Apr. 5, 2019) (same); Abramson v. Oasis Power LLC, No. 18-CV-479, 2018 WL 4101857, at
*4-5 (W.D. Pa. July 31, 2018) (same).
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Defendants also appear to contend that Jackson lacks Article III standing
because Walkin, and not KWU, is responsible for the calls.32 In essence, they argue
that Jackson is after the wrong man. Unfortunately for them, however, standing is
concerned with the plaintiff, and asks “is this the right person to bring this
claim. . . . It is generally not an inquiry into whether the plaintiff has got the right
defendant.” 33 Questions about whether the defendant is actually responsible for the
harm a plaintiff claims are quintessential merits issues, and the law is clear that it is
improper to turn a Rule 12(b)(1) motion into an attack on the merits.34 To do so
would unfairly “raise[] both the factual and legal burden on the plaintiff” at the
pleading stage by opening the door to a pre-discovery evidentiary challenge to his
claims.35 Defendants will have sufficient opportunity to assert their wrong man
defense at the merits stage of this litigation.36 At this early point, however, their
factual contentions are premature.
Finally, Defendants’ prudential standing argument fails for the same reason
that Jackson has sufficiently alleged an injury in fact. Relying again on Stoops,
Defendants contend that Jackson’s financial interest in litigating TCPA violations
places his claims outside the zone of interests, including “privacy, peace, and

32
33
34
35
36

See Doc. 9 at 6-7.
Davis v. Wells Fargo, 824 F.3d 333, 346-48 (3d Cir. 2016) (citing Raines v. Byrd, 521 U.S.
811, 818 (1997) and Flast v. Cohen, 392 U.S. 83, 99 (1968)).
Id. at 348-49.
Id. at 349.
Id.
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quiet[,] that Congress intended to protect.”37 But, as described, there is nothing in
the record to suggest that Jackson invited automated calls so as to forfeit his
interest in privacy. Unlike Ms. Stoops, whose interests “include[d] purchasing cell
phones with the hope of receiving calls from creditors for the sole purpose of
collecting statutory damages,”38 Jackson attempted to protect his privacy by
placing his personal cell phone number on the National Do-Not-Call Registry.39
When that number rang with an automated call, it infringed upon his interest in
privacy in exactly the way that the TCPA was intended to prevent. Thus, Jackson’s
claim fits comfortably within the zone of interests Congress intended to protect,
and he has prudential standing.
B.

Indispensable Party

Federal Rule of Civil Procedure 19(a) requires certain parties to be joined to
an action if doing so is feasible. Rule 19(b) provides that an action must sometimes
be dismissed if an indispensable party cannot be joined.40 And Rule 12(b)(7)
permits a party to move for dismissal for failure to join a necessary party under
Rule 19. In analyzing a Rule 12(b)(7) motion, the court asks:

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40

Stoops, 197 F. Supp. 3d at 805 (quoting Leyse v. Bank of Am. Nat’l Ass’n, 804 F.3d 316, 32526 (3d Cir. 2015)).
Id. at 805.
Doc. 1-1 ¶ 20; see Robert W. Mauthe, M.D., P.C. v. MCMC LLC, 387 F. Supp. 3d 551, 56465 (E.D. Pa. 2019) (holding that a repeat TCPA plaintiff had prudential standing because
“[a]lthough Dr. Mauthe has filed other TCPA lawsuits, there is no evidence in the record to
suggest that he seeks out unsolicited communications the way the Stoops plaintiff did.”).
See generally Epsilon Energy USA, Inc. v. Chesapeake Appalachia, LLC, 80 F.4th 223, 22932 (3d Cir. 2023).
8

1) [c]onsidering the qualifications under Rule 19(a)(1)(A) and
(a)(1)(B), should the absent party be joined?; 2) If so, is joinder
feasible—that is, can the party be joined without depriving the court of
the ability to hear the case?; 3) If joining the party is not feasible, should
the action continue in the party’s absence or be dismissed?41
Defendants argue that Walkin is indispensable here because it is the true
defendant.42 Just as their wrong man defense was a poor fit for standing, so too is it
improper as a preliminary Rule 12(b)(7) challenge. A similar argument arose in
Coloplast A/S v. Oakwell Distribution Inc., where the defendant, Devon Medical
Products, contended that it had assigned its rights and obligations under the
distribution agreement in dispute and that the assignee was therefore the proper
defendant and an indispensable party.43 The Honorable Jan Dubois, writing for the
United States District Court for the Eastern District of Pennsylvania, denied
Devon’s Motion to Dismiss, reasoning that because the parties disputed the
relationship between Devon and its supposed assignee, it would “be premature . . .
to dismiss plaintiff’s Complaint pursuant to Rule 12(b)(7)” before permitting
discovery.44
Here too, the relationship between KWU and Walkin is a subject of dispute.
Defendants argue that KWU is merely a trucking company, not the telemarketing

41
42
43
44

Id. at 232.
Doc. 9 at 9-13.
Coloplast A/S v. Oakwell Distrib. Inc., No. 15-CV-1592, 2015 WL 3872295, at *6 (E.D. Pa.
June 23, 2015).
Id.
9

mastermind, and that its only relationship to Walkin is as a U.S. payment
processor.45 Taylor claims to provide this service, through KWU, in exchange for
Walkin products.46 As evidence, Defendants provide a screenshot of webpage
identifying Walkin Global Services, a screenshot of a posting for pharmaceuticals
on “indiamart.com,” and an email Taylor received with bank routing information
for Walkin.47 Jackson infers that KWU is behind the calling scheme because he
was charged by KWU when he purchased products from the telemarketer.48 On
this record, and at this stage, considering the minimal probative value of
Defendants’ evidence and the reasonableness of Jackson’s proffered inference,
whether KWU and Taylor are responsible for the calls to Jackson remains
uncertain. The Court agrees with Judge Dubois’s reasoning: the parties will be
permitted to conduct discovery to determine the true nature of the relationship
between Defendants and Walkin.49 Should the evidence show that Jackson is
indeed after the wrong man, Defendants will be free to present their case on the
merits.50

45
46
47
48
49
50

Doc. 9 at 11.
Id.
Docs. 9-1, 12-1.
Doc. 11 at 2-3.
Coloplast, 2015 WL 3872295, at *6; see Wheaton v. Diversified Energy, LLC, No. 03-CV105, 2003 WL 23162404, at *2-3 (E.D. Pa. Dec. 16, 2003).
See Romero v. Clean Harbors Surface Rentals USA, Inc., 368 F. Supp. 3d 152, 159 (D. Mass.
2019) (reasoning that a “wrong defendant” argument was a merits defense, not a Rule 19 issue).
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III.

CONCLUSION
For the above-stated reasons, the Defendants’ Motion to Dismiss is denied.
An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
Chief United States District Judge

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