Advantage Media Group v. Get Motivated Seminars et al

Filing 15

MEMORANDUM DECISION granting 2 Defendant Tamara Lowe's Motion to Dismiss for Failure to State a Claim ; granting 2 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Ted Stewart on 06/27/2012. (tls)

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

ADVANTAGE MEDIA GROUP, LLC, a
Utah limited liability corporation,
Plaintiff,

MEMORANDUM DECISION AND
ORDER ON DEFENDANT
TAMARA LOWE’S MOTION TO
DISMISS

vs.
GET MOTIVATED SEMINARS, INC., a
Florida corporation; LIFE WIN, INC., a
Florida corporation; TAKE ACTION
MEDIA, INC., a Florida corporation; PETER
LOWE, an individual; TAMARA LOWE, an
individual; JOE JOHNSON, an individual;
and JOHN DOES 1 THROUGH 10,

Case No. 2:12-CV-337 TS

Defendants.

This matter is before the Court on Defendant Tamara Lowe’s Motion to Dismiss based on
lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2) and failure to state a claim upon
which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons set forth below,
the Court will grant the Motion to Dismiss for lack of personal jurisdiction pursuant to Fed. R.
Civ. P. 12(b)(2). 1

1

Had the Court been able to assert personal jurisdiction over Defendant Tamara Lowe,
the Court would have granted the Motion to Dismiss pursuant Fed. R. Civ. P. 12(b)(6) because
the economic loss doctrine bars the civil conspiracy claim.
1

I. BACKGROUND
Defendant Tamara Lowe (“Lowe”) moves to dismiss Plaintiff Advantage Media Group,
LLC’s (“AMG”) civil conspiracy claim. AMG has filed multiple claims against several
defendants; however, Lowe is only named as a defendant with respect to the civil conspiracy
claim. 2
Lowe is a resident of Florida and at all relevant times to the dispute was an officer of Get
Motivated Seminars, Inc. (“GMS”) and Take Action Media, Inc. (“TAM”). 3 GMS, TAM and
Life Win, Inc. are collectively known as Get Motivated Entities and are Florida corporations.
AMG is a Utah corporation doing business in the state of Utah. 4 Get Motivated Entities are
engaged in the business of providing nationwide motivational and educational seminars. 5 AMG
specializes in procuring advertising of various mediums throughout the United States. 6
AMG began providing advertising services to Get Motivated Entities in 2005 to promote
motivational and educational seminars conducted by Get Motivated Entities in various United
States locations. 7 AMG claims that throughout the business relationship Lowe would
periodically pay for business invoices using a personal credit card. 8 In late 2011 and early 2012,
AMG alleges that Lowe and Get Motivated Entities conspired to order advertising services with

2

Docket No. 1, at 9; Docket No. 2, at 4.

3

Docket No. 1, at 2.

4

Id.

5

Id. at 3.

6

Docket No. 4, at 3.

7

Id. at 2.

8

Id. at 4.
2

the intention not to pay for the services. 9 AMG alleges that in January 2012, Brian Forte and
Grace Gose attempted to make a partial payment of invoices by emailing Lowe’s credit card
information to AMG. 10 Lowe maintains that any use of her personal credit card was without her
knowledge and contrary to her direct instructions. 11 AMG alleges that Lowe conspired to induce
AMG to secure advertising without fair compensation by making a partial payment through her
agents Brian Forte and Grace Gose. 12
II. PERSONAL JURISDICTION
A.

STANDARD OF REVIEW
Plaintiff carries the burden of establishing personal jurisdiction over Defendant. 13 “‘To

obtain personal jurisdiction over a nonresident defendant in a diversity action, a plaintiff must
show that jurisdiction is legitimate under the laws of the forum state and that the exercise of
jurisdiction does not offend the due process clause of the Fourteenth Amendment.’” 14 “It is
frequently helpful to undertake the due process analysis first, because any set of circumstances
that satisfies due process will also satisfy the long-arm statute.” 15

9

Id.

10

Id.

11

Docket No. 6, Ex. A.

12

Docket No. 4, at 5.

13

Kuenzle v. HTM Sport-Und Freizeitgeräte AG, 102 F.3d 453, 456 (10th Cir. 1996).

14

Soma Med. Int’l v. Standard Chartered Bank, 196 F.3d 1292, 1295 (10th Cir. 1999)
(quoting Far West Capital, Inc. v. Towne, 46 F.3d 1071, 1074 (10th Cir. 1995)).
15

Sys. Designs, Inc. v. New Customward Co., 248 F. Supp. 2d 1093, 1097 (D. Utah

2003).
3

To satisfy the constitutional requirement of due process, the defendant must have such
“minimum contacts” with the forum state “that he should reasonably anticipate being haled into
court there.” 16 “When the evidence presented on the motion to dismiss consists of affidavits and
other written materials, the plaintiff need only make a prima facie showing.” 17 “The allegations
in the complaint must be taken as true to the extent they are uncontroverted by the defendant’s
affidavits. If the parties present conflicting affidavits, all factual disputes are resolved in the
plaintiff’s favor . . . .” 18
The “minimum contacts” standard may be met by a finding of either general jurisdiction
or specific jurisdiction. 19 AMG does not allege general jurisdiction, and the Court will therefore
not consider it. As to specific jurisdiction, when the “defendant has ‘purposely directed’ his
activities at residents of the forum,” courts in that state may exercise specific jurisdiction in cases
that “arise out of or relate to those activities.” 20 In order for the Court to find specific
jurisdiction, there must be “some act by which the defendant purposefully avails itself of the
privilege of conducting activities within the forum state, thus invoking the benefits and
protections of its laws.” 21

16

World-Wide Volkswagen Co. v. Woodson, 444 U.S. 286, 291, 297 (1980).

17

Bell Helicopter Textron, Inc. v. Heliqwest Int’l, Ltd., 385 F.3d 1291, 1295 (10th Cir.

18

Kennedy v. Freeman, 919 F.2d 126, 128 (10th Cir. 1990).

19

OMI Holdings, Inc. v. Royal Ins. Co. of Can., 149 F.3d 1086, 1090-91 (10th Cir. 1998).

20

Burger King v. Rudzewicz, 471 U.S. 462, 472–73 (1985).

21

Hanson v. Denckla, 357 U.S. 235, 253 (1958) (citation omitted).

2004).

4

B.

ANALYSIS
In the present case, Lowe’s contacts with Utah have been in the performance of her

official capacity as an officer for GMS and TAM. GMS and TAM purposely directed their
activities at the state of Utah by contracting with AMG, a Utah corporation, to procure
advertising in various other states. The Court likely has jurisdiction over GMS and TAM
because both corporations contracted with AMG, a Utah company. However, the issue before
the Court is not whether the Court has jurisdiction over the corporations; it is whether the Court
has jurisdiction over Lowe, a corporate officer.
“Where the acts of individual principals of a corporation in the jurisdiction were carried
out solely in the individuals’ corporate or representative capacity, the corporate structure will
ordinarily insulate the individuals from the court’s jurisdiction.” 22 Further, jurisdiction over a
corporate officer may not be based on jurisdiction over the corporation. 23 Jurisdiction over an
officer must be based on the officer’s individual contacts with the forum state. 24 If however, the
corporate officer is using the corporation as a shield for conducting personal activities, the Court
may “pierce the corporate veil” and assert jurisdiction over the corporate officer. 25
AMG contends that when Lowe’s personal credit card was used for corporate invoices,
either personally or through her agents, she thereby personally availed herself of the benefits and

22

Ten Mile Indus. Park v. W. Plains Corp., 810 F.2d 1518, 1527 (10th Cir. 1987) (citing
Charles Wright, Arthur Miller & Mary Kane, Federal Practice and Procedure, § 1069 (1985
Supp.); Wegerer v. First Commodity Corp. of Boston, 744 F.2d 719, 727 (10th Cir. 1984);
Wilshire Oil Co. of Tex. v. Riffe, 409 F.2d 1277, 1281 (10th Cir. 1969); Escude Cruz v. Ortho
Pharm. Corp., 619 F.2d 902, 906 (1st Cir 1980)).
23

Id.

24

Id.

25

Id. (quoting Wright, Miller & Kane, § 1069).
5

protections of Utah law. 26 AMG also alleges that Lowe conspired with Get Motivated Entities to
solicit AMG’s services with the intent not to pay for the services rendered. 27 Lowe responds that
her alleged misdeeds were executed as part of Lowe’s official capacity as a GMS and TAM
corporate officer. The Court agrees and would further note that, although Lowe’s personal credit
card was used for business invoices, there is no evidence offered by AMG that she was using the
business as a corporate shield to protect her personal activities.
Because Lowe was not acting in her individual capacity when engaging in the challenged
conduct, the Court finds that there are insufficient minimum contacts necessary to establish
personal jurisdiction.
For the foregoing reasons, the Court grants Tamara Lowe’s Motion to Dismiss for lack of
personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2).
III. CONCLUSION
Based on the forgoing, it is therefore
ORDERED that Defendant Tamara Lowe’s Motion to Dismiss (Docket No. 2) is
GRANTED.
DATED June 27, 2012.
BY THE COURT:

_____________________________________
TED STEWART
United States District Judge

26

Docket No. 4, at 10.

27

Id.
6