Hand v. Beach Entm't KC, LCC

• Citation: 425 F.Supp.3d 1096
• Decision Date: 31 October 2019
• Docket Number: Case No. 4:18-cv-00668-NKL
• Parties: J.T. HAND, individually and on behalf of all others similarly situated, Plaintiff, v. BEACH ENTERTAINMENT KC, LCC d/b/a Shark Bar, The Cordish Companies, Inc., Entertainment Consulting International, LLC, Defendants.
• Court: U.S. District Court — Western District of Missouri

425 F.Supp.3d 1096

J.T. HAND, individually and on behalf of all others similarly situated, Plaintiff,

v.BEACH ENTERTAINMENT KC, LCC d/b/a Shark Bar, The Cordish Companies, Inc., Entertainment Consulting International, LLC, Defendants.

Case No. 4:18-cv-00668-NKL

United States District Court, W.D. Missouri, Western Division.

Signed October 31, 2019

Schuyler R. Ufkes, Pro Hac Vice, Benjamin H. Richman, Pro Hac Vice, Michael Ovca, Pro Hac Vice, Sydney Janzen, Pro Hac Vice, Edelson PC, Chicago, IL, William Charles Kenney, Bill Kenney Law Firm, LLC, Kansas City, MO, Brandt Silver-Korn, Pro Hac Vice, Eve-Lynn J. Rapp, Pro Hac Vice, Edelson PC, San Francisco, CA, for Plaintiff.

David I. Zalman, Pro Hac Vice, Kelley Drye & Warren LLP, New York, NY, Glenn T. Graham, Pro Hac Vice, Lauri Anne Mazzuchetti, Pro Hac Vice, Whitney M. Smith, Pro Hac Vice, Kelley Drye & Warren LLP, Parsippany, NJ, W. James Foland, I Zachary Tyler Bowles, Jacqueline M. Sexton, Foland Wickens Roper Hofer & Crawford, Kansas City, MO, for Defendants.

ORDER

NANETTE K. LAUGHREY, United States District Judge

Before the Court is Defendants' motion to dismiss Plaintiff's second amended class action Complaint alleging violations of the Telephone Consumer Protection Act. Doc. 65. Defendants Beach Entertainment KC, LCC d/b/a Shark Bar, Entertainment Consulting International, LLC, and the Cordish Companies, Inc., assert Plaintiff's claims should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(2) and (6), for lack of personal jurisdiction and failure to state a claim. For the reasons discussed below, Defendants' motion to dismiss is denied.

I. BACKGROUND

a. The Telephone Consumer Protection Act

In 1991, Congress enacted the Telephone Consumer Protection Act in response to concerns from constituents over intrusive and unwanted telephone calls from telemarketers. Pub. L. No. 102-243, 105 Stat. 2394. The TCPA targeted automated or prerecorded calls and directed the Federal Communications Commission to implement rules consistent with the statute's goals. Id. The purpose of the statute was "to protect residential telephone subscriber privacy rights by restricting certain commercial solicitation and advertising uses of the telephone and related telecommunications equipment." H. R. Rep. No. 102-317, at 5 (1991).

The TCPA prohibits "any person within the United States, or any person outside the United States if the recipient is within the United States" from using an automated telephone dialing system (ATDS) to make a non-emergency call without the prior express consent of the recipient. 47 U.S.C. § 227(b)(1). A text message qualifies as a "call" within the scope of the Act. Campbell-Ewald Co. v. Gomez , ––– U.S. ––––, 136 S. Ct. 663, 667, 193 L.Ed.2d 571 (2016), as revised (Feb. 9, 2016). Though the TCPA does not define "person," the Communications Act, which the TCPA amended, states "[t]he term ‘person’ includes an individual, partnership, association, joint-stock company, trust or corporation." 47 U.S.C. § 153(39). The TCPA defines an ATDS as "equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers." 47 U.S.C. § 227(a)(1). In 2015, Congress amended the ATDS definition by adding an exemption for calls "made solely to collect a debt owed to or guaranteed by the United States." Bipartisan Budget Act of 2015, Pub. L. No. 114-74, § 301(a), 129 Stat. 584 (2015).

In addition to regulating the use of an ATDS, the TCPA also directed the FCC to engage in rulemaking regarding "the need to protect residential telephone subscribers' privacy rights to avoid receiving telephone solicitations to which they object." 47 U.S.C. § 227(c)(1)–(2). Exempted from the statute's definition of "telephone solicitation" are calls or messages "by a tax exempt nonprofit organization." 47 U.S.C. § 227(a)(4)(C). Congress later passed the Do-Not-Call-Act, authorizing the creation of a national do-not-call-registry. 15 U.S.C. § 6101. The FCC has subsequently promulgated regulations imposing liability for making telephone solicitations to persons who register their number with the national do-not-call registry, using the same definition of "telephone solicitation" included in the TCPA. 47 C.F.R. § 64.1200(c)(2).

The TCPA also provides for a private right of action for violations of the § 227(b) ATDS prohibition and its corresponding regulations, 47 U.S.C. § 227(b)(3), as well as a private right of action for violations of the regulations prescribed pursuant to § 227(c), 47 U.S.C. § 227(c)(5).

b. The Current Litigation

Plaintiff J.T. Hand brings a class action suit against Defendants. The Complaint states that between April 25, 2014, and April 4, 2018, Plaintiff and putative class members received text messages that they had not consented to from Defendants advertising Shark Bar's products and services.

Defendants are Beach Entertainment KC, LLC d/b/a Shark Bar ("Shark Bar"), a limited liability company with its principal place of business in Kansas City, Missouri; the Cordish Companies, Inc. ("Cordish"), a Maryland corporation with its principal place of business in Maryland; and Entertainment Consulting International, LLC ("ECI"), a Maryland limited-liability company with its principal place of business in Maryland. Shark Bar is a drinking establishment located within the Kansas City Live! entertainment block of the Kansas City Power & Light District, which is a retail, entertainment, office, and residential district located in downtown Kansas City, Missouri. Plaintiff alleges that Cordish and ECI effectuate and oversee all, or substantially all, of the marketing decisions of Shark Bar and other venues, and that in that capacity Defendants have caused promotional text messages and calls to be made to Plaintiff using the ATDS systems SendSmart and Txt Live!.

Plaintiff has alleged four counts against all Defendants and define a putative class corresponding to each count:

• Count I (the "227(b)(1)(A)(iii) Class") – violations of 47 U.S.C. § 227(b)(1)(A)(iii) for using an ATDS to send text messages without consent;

• Count II (the "64.1200(d) Class") – violations of 47 U.S.C. § 227(c) and 47 C.F.R. § 64.1200(d) for failing to implement adequate procedures to prevent calls or text messages to persons who request not to receive calls or text messages by that entity;

• Count III (the "227(c) Class") – violations of 47 U.S.C. § 227(c) and 47 C.F.R. § 54.1200(c)(2) for making at least one telephone solicitation to a person on the NDNCR in a twelve-month period;

• Count IV (the "64.1200(d)(3) Class") – violations of 47 U.S.C. § 227(c) and § 64.1200(d)(3) for transmitting one or more advertising and/or telemarketing text message within any twelve-month period after being requested to stop.

Plaintiff and the putative class seek statutory damages for each violation as well as injunctive relief against future calls pursuant to 47 U.S.C. § 227(b)(3).

Defendants ECI, Cordish, and Shark Bar together file a motion to dismiss. Defendants ECI and Cordish move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction. All Defendants move to dismiss pursuant to Rule 12(b)(6) for failure to state a claim, asserting that the statute upon which Plaintiff's claims rely contain unconstitutional provisions that are not severable. Specifically, Defendants assert that by exempting calls made pursuant to a federal government debt from the definition of ATDS, by exempting government speakers from ATDS prohibitions, and by exempting non-profits from the definition of telephone solicitation, the TCPA places content-based restrictions on free speech that cannot survive strict scrutiny and are therefore in violation of the First Amendment and Equal Protection. Moreover, they argue the statutory definition of "ATDS" is unconstitutionally vague in violation of the Fifth Amendment Due Process Clause.

Federal Rule of Civil Procedure 24 permits a non-party to intervene when the non-party "is given an unconditional right to intervene by a federal statute." Fed. R. Civ. P. 24(a). Rule 5.1(c) permits the United States Attorney General to intervene in an action where the constitutionality of a federal statute is challenged. Fed. R. Civ. P. 5.1(c). Accordingly, the Attorney General (the "Government") has intervened in this action for the purpose of defending the constitutionality of the TCPA.

II. PERSONAL JURISDICTION

Defendants Cordish and ECI move to dismiss the second amended Complaint, arguing the Court lacks personal jurisdiction over them as non-resident entities. In response, Plaintiff assert that both ECI and Cordish have the requisite minimum contacts with Missouri to make personal jurisdiction proper, and that in the alternative, Shark Bar's contacts with Missouri can be imputed to them through an alter-ego or agency theory.¹

To survive a motion to dismiss for lack of personal jurisdiction, "a plaintiff must make a prima facie showing that personal jurisdiction exists, which is accomplished by pleading sufficient facts to support a reasonable inference that the defendant can be subjected to jurisdiction within the state." K–V Pharm. Co. v. J. Uriach & CIA, S.A. , 648 F.3d 588, 591–92 (8th Cir. 2011) (internal quotations omitted). "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, and the plaintiff's prima facie showing is sufficient notwithstanding the contrary presentation by the moving party." Cantrell v. Extradition Corp. of Am. , 789 F. Supp. 306, 308–09 (W.D. Mo. 1992) ; see also Dever v. Hentzen Coatings, Inc. , 380 F.3d 1070, 1076 (8th Cir. 2004). Although "[t]he evidentiary showing required at the prima facie stage is minimal," Johnson v. Arden , 614 F.3d 785, 794 (8th Cir. 2010) (quotations omitted...