Moser v. Health Ins. Innovations, Inc.

• Decision Date: 05 January 2018
• Docket Number: CASE NO. 3:17-cv-1127-WQH-KSC
• Court: U.S. District Court — Southern District of California
• Parties: KENNETH J. MOSER, individually and on behalf of all others similarly situated, Plaintiff, v. HEALTH INSURANCE INNOVATIONS, INC., a Delaware corporation; NATIONAL CONGRESS OF EMPLOYERS, INC., a Delaware corporation; UNIFIED LIFE INSURANCE COMPANY, INC., a Texas corporation; COMPANION LIFE INSURANCE COMPANY, a South Carolina corporation; DONISI JAX, INC., a Florida corporation; CHARLES DONISI, an individual; EVAN JAXTHEIMER, an individual; HELPING HAND HEALTH GROUP, INC., a Florida corporation; ANTHONY MARESCA, an individual; and MATTHEW HERMAN, an individual; Defendants.

KENNETH J. MOSER, individually and on behalf of all others similarly situated, Plaintiff, v. HEALTH INSURANCE INNOVATIONS, INC., a Delaware corporation;NATIONAL CONGRESS OF EMPLOYERS, INC., a Delaware corporation;UNIFIED LIFE INSURANCE COMPANY, INC., a Texas corporation;COMPANION LIFE INSURANCE COMPANY, a South Carolina corporation;DONISI JAX, INC., a Florida corporation; CHARLES DONISI, an individual;EVAN JAXTHEIMER, an individual; HELPING HAND HEALTH GROUP, INC.,a Florida corporation; ANTHONY MARESCA, an individual;and MATTHEW HERMAN, an individual; Defendants.

CASE NO. 3:17-cv-1127-WQH-KSC

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

January 5, 2018

ORDER

HAYES, Judge:

The matters before the Court are (1) the Motion to Dismiss and Motion to Strike filed by Defendant Health Insurance Innovations, Inc., (ECF No. 21); (2) the Motion to Dismiss filed by Defendant Unified Life Insurance Company, (ECF No. 22); (3) the Motion to Strike filed by Defendant Unified Life Insurance Company, (ECF No. 24); and (4) the Motion to Dismiss and Motion to Strike filed by Defendants Donisi Jax, Inc., Charles Donisi, and Evan Jaxtheimer (ECF No. 38).

I. Procedural History

On June 7, 2017, Plaintiff Kenneth J. Moser filed a First Amended Complaint (ECF No. 3) (the "FAC"). In the FAC, Moser brings claims under the Telephone Consumer Protection Act of 1991 (the "TCPA") against Health Insurance Innovations, Inc. ("HII"); Unified Life Insurance Company ("Unified"); Donisi Jax Inc. a/k/a Nationwide Health Advisors ("Nationwide"); Charles Donisi; Evan Jaxtheimer; and five other defendants.

On June 21, 2017, HII filed a Motion to Dismiss and Motion to Strike (ECF No. 21) and Unified filed a Motion to Dismiss (ECF No. 22) and a Motion to Strike (ECF No. 24). Moser filed responses to these three motions on August 14, 2017. (ECF Nos. 28-30). Unified filed replies in support of its Motion to Dismiss and Motion to Strike on August 18, 2017. (ECF Nos. 33, 34). HII filed a reply in support of its Motion to Dismiss and Motion to Strike on August 21, 2017. (ECF No. 35).

On August 25, 2017, Nationwide, Charles Donisi, and Evan Jaxtheimer (the "Nationwide Defendants") filed a Motion to Dismiss and Motion to Strike (ECF No. 38). Moser filed a response to the Nationwide Defendant's Motion to Dismiss and Motion to Strike on September 18, 2017. The Nationwide Defendants filed a reply in support of its Motion on September 25, 2017.

II. Primary Allegations

"HII is the principle actor in a scheme to sell . . . medical insurance plans and other . . . insurance[-]related services . . . by making illegal telemarketing calls prohibited by the TCPA." FAC at ¶¶ 20-21. HII contracts with multiple insurers, including Unified, "to market and administer insurance products." Id. at ¶¶ 34, 74. HII "bundle[s]" those "insurance products" and hires "boiler rooms like . . . Nationwide"to "'cold call' [] unsuspecting consumer[s] using either pre-recorded messages or auto-dialers in order to sell the . . . insurance products . . . ." Id. at ¶¶ 22, 34. "HII . . . know[s] their sub-agents are making such TCPA-violative calls, and have known since at least June 27, 2014." Id. at ¶ 78. If a consumer purchases a plan during one of these phone calls, the consumer "receives emails and coverage documents from HII welcoming them to the insurance plan." Id. at ¶ 29. HII "takes all payments [for plans sold during these phone calls] and distributes them to their downstream boiler room agents and the companies whose products make up the bundle." Id. at ¶ 28.

From April 6, 2017 to May 10, 2017, Moser received eighty-two calls from Helping Hand and Nationwide "try[ing] to sell HII's bundle of insurance[-]related services" that violated the TCPA. Id. at ¶ 39, 41, 44.

[F]rom April 6, 2017 to May 10, 2017, Defendant Nationwide transmitted thirty-two (32) autodialed and prerecorded calls to Mr. Moser's cellular phones (858-[xxx-xxxx] and 858-[xxx-xxxx]) and residential telephone line (858-[xxx-xxxx]). These calls all used the exact same prerecorded message and CID 310-[xxx-xxxx] to try to sell HII's bundle of insurance related services. All of these Nationwide calls were prerecorded and autodialed.

Id. at ¶ 44.

The BBB report for Nationwide lists only Donisi and Jaxtheimer as officers, namely as President and Vice-President respectively. Plaintiff has searched public records . . . and can find no record that Nationwide ever employed anyone in a managerial capacity, nor any evidence that anyone other than Donisi and Jaxtheimer ever held any managerial role at Nationwide.

Id. at ¶¶ 61-62. "Donisi and Jaxtheimer made the violative calls [to Moser from Nationwide], ordered them made, knew the calls . . . were being made and did nothing, or were willfully and recklessly ignorant of the fact their company was making the calls . . . ." Id. at ¶ 63.

"During at least one of the calls from Nationwide, Mr. Moser feigned interest to determine the true identity of the caller and relationship of the Defendants." Id. at ¶ 45.

Mr. Moser was transferred to someone with HII who identified herself as 'Shiera' during the verification process. The HII representative 'Shiera' identified the sales representative as Michael Cugini and the call center/broker as Nationwide. Michael Cugini does have a license to sell insurance, though his only appointments are with HII[-]affiliated companies including Unified. After the call, Mr. Moser received all welcome e-mails from HII . . . .

Id. at ¶¶ 48-51.

Helping Hand and Nationwide are "explicitly hired by HII, Unified, NCE, and Companion . . . to make the illegal pre-recorded auto-dialed calls to the benefit of HII, Unified, NCE, and Companion." Id. at ¶¶ 91, 94. "[T]he illegal calls used to sell the[] bundles [] are made by boiler rooms like Helping Hand and Nationwide with the full knowledge and assistance of HII and its major insurance partners Unified and Companion." Id. at ¶ 34. "HII, Unified, NCE, and Companion explicitly condone the actions of [Helping Hand and Nationwide] in making the illegal pre-recorded auto-dialed calls to the benefit of HII, Unified, NCE, and Companion." Id. at ¶¶ 93, 96.

Plaintiffs bring this class action against Defendants . . . on behalf of [himself] and members of the following class of persons dividing into two sub-classes:

Sub-Class No. 1:

All persons and entities located within the United States of America to whose mobile phone Defendants and/or its agents transmitted a call using an automatic telephone dialing system or prerecorded voice without prior express written consent from the called party at anytime from January 28, 2015 to the present, including up to and through trial; and,

Sub-Class No. 2

All persons and entities located within the United States of America to whose residential telephone line Defendants and/or its agents transmitted a call using a prerecorded voice without prior express written consent from the called party at anytime from January 28, 2015 to the present, including up to and through trial.

Id. at ¶ 19.

III. The Motion to Dismiss the Nationwide Defendants

The Nationwide Defendants move to dismiss Moser's claims against them for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(2). (ECF No. 38 at 5). Moser contends that this Court has specific jurisdiction over the Nationwide Defendants. (ECF No. 39 at 9-21).

"In opposition to a defendant's motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of establishing that jurisdiction is proper." Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008). Where, as here, the parties have submitted declarations and exhibits in support of their motion and opposition, see ECF Nos. 38-1 through 38-3 and 39-1 through 39-10, the Court considers both the allegations in the plaintiff's complaint and the declarations and exhibits submitted by the parties. Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1223 (9th Cir. 2011). The Court accepts as true all uncontroverted allegations in the plaintiff's complaint, and "draw[s] reasonable inferences from the complaint in favor of the plaintiff." Fiore v. Walden, 688 F.3d 558, 574-75 (9th Cir. 2012), rev'd on other grounds, 134 S. Ct. 1115 (2014). However, the Court does not accept as true allegations that are contradicted by factual material submitted by the parties. Mavrix, 647 F.3d at 1223 (quoting Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d 1280, 1284 (9th Cir. 1977)). "[T]he court resolves all disputed facts in favor of the plaintiff . . . ." Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006).

Where, as here, no federal statute authorizes personal jurisdiction, the district court applies the law of the state in which the court sits. California's long-arm statute, Cal. Civ. Proc. Code § 410.10, is coextensive with federal due process requirements, so the jurisdictional analyses under state law and federal due process are the same. For a court to exercise personal jurisdiction over a nonresident defendant consistent with due process, that defendant must have certain minimum contacts with the relevant forum such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.

Mavrix, 647 F.3d at 1223 (citations and quotation omitted).

Whether a court has specific jurisdiction over a defendant depends on the relationship between the defendant's contacts with the forum state and the cause of action. Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir. 1987) (citing Data Disc, Inc. v. Systems Technology Assocs., Inc., 557 F.2d 1280, 1287 (9th Cir. 1977)). For a court to have specific jurisdiction over a non-resident defendant,

(1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the

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