Fiorentine v. Sarton Puerto Rico, LLC, Civil Action No. 19-3424 (CKK)

• Decision Date: 29 August 2020
• Docket Number: Civil Action No. 19-3424 (CKK)
• Citation: 486 F.Supp.3d 377
• Parties: John FIORENTINE et al., Plaintiffs, v. SARTON PUERTO RICO, LLC d/b/a IKEA Puerto Rico, Defendant.
• Court: U.S. District Court — District of Columbia

486 F.Supp.3d 377

John FIORENTINE et al., Plaintiffs,

v.SARTON PUERTO RICO, LLC d/b/a IKEA Puerto Rico, Defendant.

Civil Action No. 19-3424 (CKK)

United States District Court, District of Columbia.

Signed August 29, 2020

Andrea R. Gold, Tycko & Zavareei, LLP, Washington, DC, for Plaintiffs.

Pedro R. Vazquez, III, Pro Hac Vice, Pedro R. Vazquez Law Offices, San Juan, PR, Kristen E. Burgers, Hirschler Fleischer, Tysons, VA, for Defendant.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, United States District Judge

This case concerns a putative class action involving alleged violations of the Telephone Consumer Protection Act ("TCPA"). Now pending before the Court is Defendant's Motion for Transfer of Venue ("Defendant's Motion"), ECF No. 11. Upon consideration of the briefing, the relevant authorities, and the record as a whole,¹ the Court GRANTS Defendant's Motion and DISMISSES Plaintiff's complaint WITHOUT PREJUDICE .

I. BACKGROUND

On November 13, 2019, Plaintiffs John Fiorentine and Kim Kravitz ("Plaintiffs") filed this action against Defendant Sarton Puerto Rico, LLC d/b/a IKEA Puerto Rico ("Defendant") alleging violations of the TCPA. See Compl. ¶¶ 1–3. Defendant is a Puerto Rico limited liability company that "designs and sells ready-to-assemble furniture, kitchen appliances and home accessories, among other useful goods and occasionally home services." Id. ¶¶ 2, 6. More specifically, Defendant was established as an extension of a Dominican parent entity, through a franchise agreement with InterIkea Systems BV ("IKEA"), a Netherlands corporation. See Def.’s Mot., Ex. A (Mejia Decl.), ¶¶ 7–11. In 2013, Defendant began its business operations, which comprised "points of sale in three different locations in Puerto Rico." Def.’s Mot. at 3; see also id. , Ex. A (Mejia Decl.), ¶ 8. Later, in 2018, Defendant entered into an amended franchise agreement with IKEA, which formally restricted Defendant's business operations to the activities within the territory of Puerto Rico. See id. , Ex. A (Mejia Decl.), ¶¶ 13–14. Defendant currently employs approximately 140 individuals, all of whom work within the Puerto Rico territory. See id. , Ex. A (Mejia Decl.), ¶ 19.

According to Plaintiffs, Defendant has utilized an "automatic telephone dialing system" ("ATDS") to impermissibly "promote its services" by sending unsolicited text messages to thousands of consumers. Compl. ¶¶ 2, 85. Plaintiffs explain that Defendant's ATDS platform allows it to send such messages from individualized telephone numbers that "deceiv[e] recipients into believing that the message was personalized." Id. ¶ 54. Moreover, Defendant allegedly employs "a combination of hardware and software systems" in its telemarketing scheme, which allows it to transmit copious automated text messages without human involvement. Id. ¶¶ 56–57. Importantly, Plaintiffs allege that Defendant sent such automated messages to individuals who did not consent to the messages, see id. ¶¶ 84, 90, and also to individuals with numbers on the national Do Not Call Registry, see id. ¶ 98.

Named plaintiffs Kim Kravitz and John Fiorentine allegedly received such unsolicited text messages from Defendant. Ms. Kravitz, a resident of Broward County, Florida, received two text messages from Defendant on or about July 30, 2019 and August 30, 2019, respectively. Id. ¶¶ 5, 39. Ms. Kravitz received these unsolicited text messages on her cellular phone, with a number ending in 3388. Id. ¶ 44. Mr. Fiorentine, a resident of Washington, D.C., also received unsolicited text messages from Defendant. Id. ¶ 4. Specifically, Mr. Fiorentine alleges that between July 19 and October 1, 2019, he received several unsolicited text messages from Defendant on a phone number ending in 6362. See id. ¶ 24. Mr. Fiorentine alleges that he received these text messages while residing within the District of Columbia, id. ¶ 28, and after he had registered on the national Do Not Call Registry, id. ¶ 31. Collectively, Plaintiffs Kravitz and Fiorentine assert TCPA claims against Defendant on behalf of a putative class of individuals who have allegedly received unsolicited ATDS text messages from Defendant in the past four years. Id. ¶ 69. Additionally, Mr. Fiorentine asserts a specific TCPA claim on behalf of individuals receiving such messages while registered on the national Do Not Call Registry. Id. ¶ 70.

On February 27, 2020, Defendant responded to Plaintiffs’ complaint by filing a "Motion for Transfer of Venue." See generally Def.’s Mot., ECF No. 11. Therein, Defendant "move[d] this Court for either a dismissal or transfer of venue for lack of jurisdiction ..." Def.’s Mot. at 1. Throughout the motion, Defendant raised issues pertaining to personal jurisdiction, see id. at 2–5, but also focused predominantly on the argument that federal venue was proper in the District of Puerto Rico, see id. at 5–13. As one potential form of relief, Defendant requested that the Court transfer this action to the District of Puerto Rico, pursuant to 28 U.S.C. § 1404(a). See Def.’s Mot. at 5–13. In response, Plaintiffs argued that Defendant waived any personal jurisdiction defense by inadequately raising that objection in its opening motion. See Pls.’ Opp'n at 2–4. Plaintiffs further asserted that venue was, in fact, proper in the District of Columbia and that a § 1404(a) transfer to the District of Puerto Rico would not serve the interests of justice. See Pls.’ Opp'n at 4–10. In reply, Defendant argued against waiver and reaffirmed its position that personal jurisdiction is improper in this case because "there is no connection between [Defendant] and the District of Columbia; nor any affiliation between the District of Columbia and the specific claims asserted by Plaintiffs." Def.’s Reply at 8. On August 7, 2020, by order of the Court, Plaintiffs submitted a supplemental brief further responding to the personal jurisdiction defense raised by Defendant. See generally Pls.’ Suppl. Br., ECF No. 18.

Defendant's Motion is now ripe for this Court's review. Defendant's Motion presents a request for transfer under § 1404(a) and, for the reasons provided herein, the Court concludes that Defendant's Motion also presents a challenge to this Court's exercise of personal jurisdiction. See disc. infra , at Section III.A. Where "a district court has before it a straightforward personal jurisdiction issue" it may exercise its discretion and "turn[ ] directly" to that question. Ruhrgas AG v. Marathon Oil Co. , 526 U.S. 574, 588, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999). The Court will do so here.

II. LEGAL STANDARD

When personal jurisdiction is challenged, the plaintiff bears the burden of establishing a factual basis for asserting personal jurisdiction over a defendant. See Crane v. N.Y. Zoological Soc'y, 894 F.2d 454, 456 (D.C. Cir. 1990). At the pleading stage, the plaintiff "can satisfy that burden with a prima facie showing." Mwani v. bin Laden, 417 F.3d 1, 7 (D.C. Cir. 2005) (quoting Edmond v. United States Postal Serv. Gen. Counsel, 949 F.2d 415, 424 (D.C. Cir. 1991) ). "To make such a showing, the plaintiff is not required to adduce evidence that meets the standards of admissibility reserved for summary judgment and trial;" but rather, the plaintiff may "rest her arguments on the pleadings, ‘bolstered by such affidavits and other written materials as she can otherwise obtain.’ " Urban Inst. v. FINCON Servs. , 681 F. Supp. 2d 41, 44 (D.D.C. 2010) (quoting Mwani, 417 F.3d at 7 ). The plaintiff, however, cannot rely on bare allegations or conclusory statements but "must allege specific acts connecting [the] defendant with the forum." Second Amendment Found. v. United States Conf. of Mayors, 274 F.3d 521, 524 (D.C. Cir. 2001) (internal quotation marks omitted). "And unlike a motion to dismiss for failure to state a claim, the Court need not confine itself to only the allegations in the complaint, but ‘may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.’ " Frost v. Catholic Univ. of Am. , 960 F. Supp. 2d 226, 231 (D.D.C. 2013) (quoting Jerome Stevens Pharm., Inc. v. FDA , 402 F.3d 1249, 1253 (D.C. Cir. 2005) ).

III. DISCUSSION

For the reasons provided herein, the Court concludes that Defendant has sufficiently raised (and has not waived) an objection to this Court's jurisdiction. Moreover, the Court finds that Plaintiff has not established that personal jurisdiction over Defendant is proper in this case. For this reason, the Court DISMISSES Plaintiffs’ complaint WITHOUT PREJUDICE .

A. Waiver

The defense of personal jurisdiction, as Plaintiffs correctly note, may be waived. See FED. R. CIV. P. 12(h)(1). The Federal Rules of Civil Procedure "provide that the defense of lack of personal jurisdiction ... is waived by its omission from motions asserting defenses under Rule 12 or a responsive pleading." Democratic Republic of Congo v. FG Hemisphere Assocs., LLC , 508 F.3d 1062, 1064 (D.C. Cir. 2007). Here, Plaintiffs contend that Defendant effectuated such a waiver when "it d[id] not argue that venue is improper for lack of personal jurisdiction" in its opening brief. Pls.’ Opp'n at 3. The Court, ultimately, disagrees.

As an initial matter, the Court acknowledges that Defendant's opening reference to personal jurisdiction was not a model of clarity. See Def.’s Mot. at 5–13 (citing 28 U.S.C. § 1391 ). Nonetheless, Defendant's motion does request this Court to order "either a dismissal or transfer of venue for lack of jurisdiction. " Def.’s Mot. at 1 (emphasis added). Moreover, Defendant's motion raises "jurisdictional facts," see id. at 3, n.1, which demonstrate Defendant's lack of contact with the District of Columbia, see id. at 3–5. While this invocation of the personal jurisdiction defense was inartful, Defendant's motion did not wholly omit any jurisdictional reference or concede the issue altogether. Cf. Malveaux v. Christian Bros. Servs. , 753 F. Supp. 2d 35, 38–39 (D.D.C. 2010) (finding waiver...