Branham v. ISI Alarms, Inc.
| Decision Date | 30 August 2013 |
| Docket Number | 12-CV-1012 (ARR) (MDG) |
| Parties | INDIA BRANHAM, Plaintiff, v. ISI ALARMS, INC., JAYSON WALLER, and MONITRONICS INTERNATIONAL, INC., Defendants. |
| Court | U.S. District Court — Eastern District of New York |
NOT FOR PUBLICATION
Plaintiff India Branham ("plaintiff") brought this action seeking damages under the Telephone Consumer Protection Act ("TCPA") after defendants allegedly called her seventy-five times seeking to collect a debt from another, unrelated person. Currently before the court is defendant Jayson Waller's ("Waller") motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(2), and defendant Monitronics International, Inc.'s ("Monitronics") motion for summary judgment with respect to contractual indemnity. For reasons that will be described herein, Waller's motion is denied and Monitronics' motion is granted.
ISI Alarms, Inc. ("ISI") is a corporation formed pursuant to the laws of North Carolina, with its corporate headquarters located in Mooreseville, NC. Pl.'s Mem. in Opp'n to Def.'s Mot. to Dismiss for Lack of Personal Jurisdiction ("Pl.'s Opp'n"), Ex. E, Dep. of Jayson Waller ("Waller Dep."), Dkt. #38-5, at 15. ISI installs and provides monitoring services for home security systems. Id. at 26, Ex. D. Jayson Waller, a resident of North Carolina, was thepresident of ISI during the relevant time period. Waller Dep. 10, 14. Waller is the sole shareholder of ISI. Id. at 45.
In 2008, ISI entered into agreements with Monitronics regarding alarm monitoring services. Monitronics International, Inc.'s Local Rule 56.1 Statement of Material Facts ¶ 1. Pursuant to the first of these agreements, the Alarm Monitoring Purchase Agreement ("AMPA"), Monitronics purchased certain contracts for alarm monitoring from ISI. Aff. of David Verret ("Verret Aff."), Dkt. #35-3, ¶ 3; see id., Ex. A. Pursuant to the second agreement, the Master Contract Monitoring Agreement ("MCMA"), Monitronics agreed to provide monitoring services on alarm systems installed by ISI. Id., Ex. C. These agreements contained various indemnification provisions, which will be discussed more fully below.
In February of 2011, ISI entered into a three-year contract for alarm monitoring ("the Monitoring Agreement") with Leola Massiah and her daughter, Rene Massiah, neither of whom are parties to this dispute. Pl.'s Opp'n, Ex. D., at 2. Both Massiahs signed the Monitoring Agreement, which was for monitoring of an alarm system installed in Leola Massiah's Wilmington, NC residence. Id. at 2-3. Rene Massiah's cell-phone number, which has a New York area code, appears on the agreement as her only phone number. Id. Her Brooklyn, NY address is listed as the billing address for the monthly monitoring fee. Id. at 2. ISI sent invoices for these charges to Rene Massiah in Brooklyn from March 2011 to January 2013. See id. at 2, 5-6; Pl.'s Opp'n 13. Rene Massiah made regular payments on the account. See Pl.'s Opp'n, Ex. D., at 5-6.
On February 8, 2012, an ISI employee attempted to contact Rene Massiah regarding the outstanding balance on her account and placed a call to the Brooklyn, NY cell-phone number shehad provided on the Monitoring Agreement. Pl.'s Opp'n 1-2.1 Because that number had since been re-assigned, the calls instead reached plaintiff's cell-phone. Id. During this initial call, plaintiff informed the caller that she was not Rene and that no person named Rene could be contacted via the number he had dialed. Am. Compl. ¶ 34. Plaintiff instructed the caller to stop calling her and to remove her number from ISI's records. Id. ¶¶ 34-36. Plaintiff sent a cease-and-desist letter regarding the calls to ISI on February 8, 2012 via fax and regular mail. Pl.'s Opp'n, Ex F. In the letter, plaintiff, through counsel, advised ISI that its telephone operators were reaching a wrong number. Id. Waller received the letter in the mail on or before February 9. Waller Dep. 41-42; see Pl.'s Opp'n, Ex F, at 4. Upon receiving the letter, Waller forwarded it to his attorney, Robert Newkirk. Waller Dep. 43-44. Waller also later checked the ISI account databases for plaintiff's last name, but because he could not find her name in ISI's records, he took no further action. See id. at 43.
ISI employees continued to call plaintiff's cell-phone in their attempt to contact Rene Massiah, and plaintiff ultimately received at least seventy-five telephone calls between February 8, 2012 and February 13, 2012. Am. Compl. ¶ 26. Plaintiff filed suit against ISI and Waller individually on February 29, 2012, alleging, inter alia, violations of the TCPA, 47 U.S.C. § 227, and intentional infliction of emotional distress. Compl., Dkt #1, at 1, 7, 11. Plaintiffsubsequently filed an amended complaint, adding Monitronics as a defendant. Am. Compl. ¶ 2-4. Monitronics answered and cross-claimed against ISI and Waller for indemnification. Dkt. #15, at 9-14. The parties conducted limited discovery on the issue of jurisdiction prior to Waller bringing his motion to dismiss.
Waller answered plaintiff's amended complaint, Dkt. #21, and subsequently filed a motion to dismiss for lack of personal jurisdiction, Dkt. #28. Plaintiff resists the motion on three grounds: First, she argues that Waller waived the defense of lack of personal jurisdiction by failing to preserve the defense in his answer. Pl.'s Opp'n 6-10. Second, she argues that the court has personal jurisdiction over Waller because he transacted business in New York through ISI acting as his agent. Id. at 10-12. Third, she argues that the court has personal jurisdiction over Waller because he, again through ISI, committed a tort outside New York causing injury within the state. Id. at 12-16. Notably, ISI does not contest personal jurisdiction in this case. See Answer to Am. Compl. by ISI Alarms NC, Inc., Dkt. #20. For his part, Waller argues that he did not personally transact business in New York and that due process considerations should prevent the court from exercising jurisdiction over him. Mem. of Def. Jayson Waller in Supp. of Mot. to Dismiss for Lack of Personal Jurisdiction Pursuant to Rule 12 ("Mot. to Dismiss") 5-6.2
The defense of lack of personal jurisdiction is a threshold defense that must be raised in the defendant's first responsive pleading, or it is waived. Fed. R. Civ. P. 12(h); Transaero, Inc.v. La Fuerza Aerea Boliviana, 162 F.3d 724, 730 (2d Cir. 1998). The parties dispute whether Waller preserved his defense based on the language of his "Second Affirmative Defense," which stated, "That the Court lacks jurisdiction over the person by reason of ineffective service of process." Answer of Def. Jayson Waller ("Waller Answer") 1. Waller argues that this sentence preserved both a Fed. R. Civ. P. Rule 12(b)(2) defense of lack of personal jurisdiction and a Rule 12(b)(5) defense of ineffective service of process, however "inartfully." Mot. to Dismiss 8-9. Plaintiff argues that it only preserved a Rule 12(b)(5) defense for ineffective service of process. Pl.'s Opp'n 8.
Although the defenses of lack of personal jurisdiction and ineffective service of process are "closely interrelated," 5B Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. § 1353 (3d ed. 2009), the two defenses are distinct and must be raised separately. See Santos v. State Farm Fire & Cas. Co., 902 F.2d 1092, 1095-96 (2d Cir. 1990) (). Nevertheless, even if Waller's "Second Affirmative Defense" failed to preserve a 12(b)(2) defense, Waller raised each defense separately elsewhere in his answer. See Waller Answer 9-10 ("Waller respectfully prays [that t]his action be dismissed as to Defendant Waller for lack of personal jurisdiction . . . [and that t]his action be dismissed as to Defendant Waller for insufficient service of process."). Defenses need not be labeled as "affirmative defenses" in a defendant's answer, so long as they appear somewhere within the first responsive pleading. See 5B Wright & Miller, Fed. Prac. & Proc. § 1351 (); see also Transaero, 162 F.3d at 727 (). As Waller clearly articulated a defense of lack of personal jurisdiction separate from any challenge to service of process, he properly preserved his right to challenge the court's jurisdiction over his person. The court now considers the merits of his motion to dismiss.
Plaintiff contends that the court has specific jurisdiction over Waller. Specific personal jurisdiction exists when "a State exercises personal jurisdiction over a defendant in a suit arising out of or related to the defendant's contacts with the forum." Chloé v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 164 (2d Cir. 2010) (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 & n. 8 (1984)). To determine whether specific personal jurisdiction exists over a non-domiciliary in a case involving a federal question, the court must engage in a two-step analysis. See Fed. R. Civ. P. 4(k)(1)(a); Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120, 124 (2d Cir. 2002). First, the court must decide if jurisdiction is proper under the relevant provision of the New York long-arm statute. Bank Brussels Lambert, 305 F.3d at 124. If the court finds jurisdiction under the statute, it must then decide if exercising personal jurisdiction comports with the Due Process Clause of the ...
To continue reading
Request your trial