United States District Court, M.D. Tennessee, Nashville Division
REPORT AND RECOMMENDATION
E. CLIFTON KNOWLES Magistrate Judge.
I. Introduction and Background
This matter is before the Court upon a "Motion to Dismiss and to Strike Plaintiff's Amended Complaint with Supporting Memorandum of Law" with Exhibits filed by Defendant Carribean Cruise Line, Inc. (hereinafter "Defendant" or "CLL"). Docket Nos. 22-22-2. Attached to, and in support of, its Motion, Defendant has contemporaneously submitted the Declarations of Raul Valero (Docket No. 22-1), and Jennifer Poole (Docket No. 22-2). Defendant argues that Plaintiff's Amended Complaint should be dismissed because: (1) pursuant to Fed.R.Civ.P. 12(b)(2), this Court does not have jurisdiction over CCL; and (2) the Amended Complaint does not state a plausible claim for relief against CCL for violations of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. §227 et seq. Docket No. 22.
With regard to the issue of jurisdiction, Defendant argues that Plaintiff has a North Carolina telephone number and that it is a Florida corporation with no meaningful contacts in Tennessee. Id., p. 2. Defendant contends that because it had no meaningful contacts with Tennessee and because the alleged telephone calls were not made to a Tennessee telephone number, this Court cannot exercise jurisdiction over CCL. Id.
Regarding Plaintiff's asserted TCPA claims, Defendant argues that Plaintiff's Amended Complaint "fails entirely to provide any facts to support the existence of supposed violations, ' fails to identify which sections of the TCPA were allegedly violated, ' fails to provide facts from which the Court could infer that an automated telephone dialing system was used, fails to describe in any meaningful way what was said on the alleged violative telephone calls, and fails to provide any facts showing how CCL was involved, if at all, amongst other serious deficiencies." Id., p. 2-3. Defendant notes also that Plaintiff had, in fact, purchased a travel package with CCL on December 11, 2012, and asserts that the calls at issue were actually follow-up calls to determine if and when Plaintiff was going to travel using his purchased package. Id., p. 2.
Plaintiff has filed a Response (Docket No. 25) and an Amended Response (Docket No. 30) to the instant Motion. Attached to Plaintiff's Amended Response, Plaintiff has submitted his affidavit (Docket No. 30-1), as well as a CD purportedly containing the voice mail messages CCL left on Plaintiff's voice mail (Docket No. 41). Plaintiff argues that Defendant's contention that, because it dialed a phone number with a North Carolina area code it lacked minimum contacts with Tennessee, is "irrelevant to the nature of a TCPA claim." Docket No. 30, p. 2. Specifically, Plaintiff asserts that he: (1) never gave his phone number to Defendant; (2) never consented in writing to receiving calls from an automated telephone dialing system or pre-recorded message; (3) has lived in Tennessee since 2010; (4) continues to live in Tennessee; and (5) is a Tennessee resident. Id., p. 2, 8. Plaintiff contends that "the area code element is inconsequential" since he was physically in Tennessee when receiving the calls, and he informed Defendant of the fact that he was living in Tennessee. Id. Plaintiff also argues that this Court has jurisdiction over Defendant because Defendant advertises in Tennessee and transacts business in the State, thereby satisfying the requisite "continuous and systematic contacts." Id., p. 5. Plaintiff asserts that, in addition to advertising on the radio in Tennessee, Defendant's website "naturally invite[s] Tennessee consumers to engage in business with CCL." Id., p. 6. Plaintiff contends that the advertising to, and solicitation of, Tennessee residents establishes that this Court has jurisdiction over Defendant, regardless of the fact that Defendant does not have an office or other real estate in Tennessee. Id.
With regard to Defendant's contention that the calls were follow-up calls placed after Plaintiff purchased a travel package, Plaintiff contends that the calls at issue were placed in November 2012, one month before he purchased the travel package, and Plaintiff notes that the "date and time information is recorded on each and every call." Id., p. 2-3. Plaintiff asserts that the calls did not stop until after he purchased the travel package. Id. Plaintiff contends that he received additional calls with pre-recorded messages in May 2014, after the filing of this lawsuit, once again soliciting him to sign up for a vacation package. Id., p. 5.
Defendant has filed a Reply, first arguing that neither Plaintiff's Response nor his Amended Response should be considered because they were untimely. Docket No. 33. Defendant next argues that Plaintiff is simply wrong in his contention that advertising to, and soliciting business from, people in Tennessee is sufficient to establish jurisdiction over Defendant. Id., p. 3. Defendant contends that there is nothing in the record to indicate that it regularly conducts business in Tennessee or has any physical presence in Tennessee whatsoever. Id. Defendant further contends that Plaintiff has failed to meet his burden of establishing that it has continuous and systematic contacts with Tennessee, noting that the Sixth Circuit has already rejected Plaintiff's argument that having a website is sufficient to establish jurisdiction, having held that "the fact that [one] maintains a website that is accessible to anyone over the Internet is insufficient to justify general jurisdiction." Id., p. 3-4, quoting Bird v. Parsons, 289 F.3d 865, 874 (6th Cir. 2002). Defendant asserts that, assuming arguendo, it makes phone calls and sends mailings to people in Tennessee, the calls and mailings are, at best, de minimus contacts that do not meet the traditional "continuous and systematic" contacts required to establish personal jurisdiction. Id., p. 4.
Defendant further replies that Plaintiff may not simply sue in the state where he happened to be when he received the alleged calls, because the "purposeful availment' requirement is the sine qua non of in personam jurisdiction, '" and is satisfied "when the defendant's contacts with the forum state proximately result from actions by the defendant himself that create a "substantial connection" with the forum state, ' and when the defendant's conduct and connection with the forum are such that he should reasonably anticipate being haled into court there.'" Id., p. 6 (emphasis omitted), quoting Bridgeport Music, Inc. v. Agarita Music, Inc., 182 F.Supp.2d 653, 658 (M.D. Tenn 2002), citing Southern Machine Co. v. Mohasco Indus. Inc., 401 F.2d 347, 381-82 (6thCir. 1968); and Compuserve, Inc. v. Patterson, 89 F.3d 1257, 1263 (6thCir. 1996). Defendant emphasizes that Plaintiff has a North Carolina telephone number, arguing that "no conduct by CCL, who allegedly dialed a North Carolina number, created a substantial connection' with this forum [Tennessee], such that CCL should reasonably anticipate being haled into court  here.'" Id., p. 6-7, quoting Id.
With regard to Plaintiff's TCPA claim, Defendant replies that Plaintiff has failed to properly plead a violation of the TCPA, first, because he failed to provide a "short and plain statement of the claim" that sufficiently notified Defendant of both the claim and its supporting grounds; second, because Plaintiff failed to plead any facts to establish that Defendant used "automatic dialing technology and/or an artificial or prerecorded voice" and conclusory allegations are not enough; and third, because Plaintiff failed to allege any facts regarding the content of the calls he received. Id., p. 8-9, citing Fed.R.Civ.P. 8(a); Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007).
As to Plaintiff's request for an award of attorney's fees (should he secure an attorney), treble damages, and punitive damages, Defendant argues that: (1) attorney's fees are not authorized in the express language of the statute; and (2) under the TCPA, a plaintiff may recover either the actual monetary loss or "receive $500 in damages for each violation, whichever is greater, " but not both. Id., p. 10, citing 47 U.S.C. § 227(b)(3)(B).
Plaintiff filed this action pursuant to the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, et seq, alleging that, in 2012, without his consent, he received "at least 6" automated telephone calls to his cell phone each with a pre-recorded message soliciting him to call back and register for a free vacation cruise package with CCL. Docket No. 8, Amended Complaint. Plaintiff contends that the telephone calls "violated the TCPA in two ways, first by having a pre-recorded message, and second by the automated nature of them." Id., p. 2. Plaintiff contends that this Court has jurisdiction because "the acts happened and the contract was breached in this county." Id., p. 1. Plaintiff argues that venue is proper in this District because Defendant "transact[s] business here, and the acts and transactions occurred here." Id. Plaintiff seeks statutory damages of $3, 000 for each phone call, pre-judgment interest from the date of the phone calls, $270, 000 in punitive damages for all claims, attorney's fees, costs, and other such relief as the Court may deem just and proper. Id., p. 3.
Because a court cannot decide a cause of action for which it lacks jurisdiction, the primary issue before the undersigned is whether the Court has jurisdiction over Defendant, and therefore over this action. Plaintiff bears the burden of establishing jurisdiction over Defendant. ...