Mussat v. Enclarity, Inc.

• Decision Date: 22 January 2019
• Docket Number: No. 16-CV-07643,16-CV-07643
• Citation: 362 F.Supp.3d 468
• Parties: Florence MUSSAT, M.D., S.C., Individually and on Behalf of Similarly Situated Persons, Plaintiffs, v. ENCLARITY, INC. and Corporate Does 1-3, Defendants.
• Court: U.S. District Court — Northern District of Illinois

362 F.Supp.3d 468

Florence MUSSAT, M.D., S.C., Individually and on Behalf of Similarly Situated Persons, Plaintiffs,

v.ENCLARITY, INC. and Corporate Does 1-3, Defendants.

No. 16-CV-07643

United States District Court, N.D. Illinois, Eastern Division.

Signed January 22, 2019

Cathleen M. Combs, Daniel A. Edelman, Dulijaza Clark, Heather A. Kolbus, Edelman, Combs, Latturner & Goodwin LLC, Chicago, IL, Curtis Charles Warner, Warner Law Firm, LLC, Park Ridge, IL, for Plaintiffs.

Tiffany Cheung, Benjamin F. Patterson, James F. McCabe, Morrison & Foerster LLP, San Francisco, CA, John C. Ellis, Ellis Legal P.C., Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

John J. Tharp, Jr., United States District Judge

Florence Mussat, M.D., S.C. ("Mussat"), individually and on behalf of similarly situated persons, alleges that defendant Enclarity, Inc. engaged in unsolicited fax advertising in violation of the Telephone Consumer Protection Act ("TCPA"), as amended by the Junk Fax Prevention Act of 2005, 47 U.S.C. § 227. In a previous order, this Court denied Enclarity's motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Enclarity has subsequently moved for judgment on the pleadings pursuant to Rule 12(c), arguing that the Court lacks personal jurisdiction over it with respect to claims brought by putative class members residing outside of Illinois. For the reasons discussed below, the motion is denied.

BACKGROUND

Mussat is an Illinois corporation and medical practice operating in Chicago.

Enclarity is a health care data company incorporated in Delaware with its principal place of business in Minnesota. In 2016, Mussat filed a putative nation-wide class action against Enclarity in this District, alleging that Enclarity violated the TCPA by sending unsolicited fax advertisements to healthcare providers. Am. Compl. ¶¶ 1, 10. In October 2016, Enclarity moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim; it did not object to personal jurisdiction at that time. On June 19, 2017, after that motion was fully briefed, but before the Court had ruled on it, the Supreme Court issued its decision in Bristol-Myers Squibb Co. v. Superior Court , ––– U.S. ––––, 137 S.Ct. 1773, 198 L.Ed.2d 395 (2017), holding that a California state court lacked specific personal jurisdiction over the defendant as to claims filed in a mass action by non-California plaintiffs because those claims were not linked to the forum.¹

On March 3, 2018, this Court denied Enclarity's motion to dismiss and directed it to file a response to Mussat's complaint. See Mussat v. Enclarity, Inc. , 16-CV-07643, 2018 WL 1156200, at *1 (N.D. Ill. Mar. 5, 2018). Enclarity filed an answer on March 26, 2018 in which it challenged personal jurisdiction for the first time. Relying on Bristol-Myers , it asserted that the Court lacked personal jurisdiction over it as to claims brought by putative class members residing outside of Illinois. Defendant's Answer 14, ECF No. 54. Two months later, Enclarity moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), again asserting a lack of personal jurisdiction defense.² Memorandum in Support of Defendant's Motion for Judgment on the Pleadings 4, ECF No. 63. As explained more fully below, the Court denies the motion because it is untimely and because Enclarity waived its personal jurisdiction defense.

DISCUSSION

In broad terms, personal jurisdiction refers to a court's power to bring a particular defendant into the judicial process. Generally, courts may exercise that power only if the defendant has constitutionally sufficient contacts with the state in which the court sits. See uBID, Inc. v. GoDaddy Group, Inc. , 623 F.3d 421, 425 (7th Cir. 2010) (laying forth the standards for determining whether personal jurisdiction exists). Personal jurisdiction can either be "general"— meaning a defendant has such a strong connection to a state that a court within that state may hear any claim against it—or "specific." Specific personal jurisdiction allows a court to hear a claim against a defendant who may not be subject to general jurisdiction if the claim arises out of the defendant's connection to the state where the court sits. Id. The parties agree that the Court lacks general jurisdiction over Enclarity. Memorandum in Support of Defendant's Motion for Judgment on the Pleadings 4. To adjudicate the claims against Enclarity, then, the Court must have specific jurisdiction.

Enclarity challenges specific personal jurisdiction only as to claims brought by out of state plaintiffs.³ It argues that because those plaintiffs did not receive faxes in Illinois and were not otherwise injured in Illinois, their claims do not relate to Enclarity's connection to Illinois and must be dismissed. Memorandum in Support of Defendant's Motion for Judgment on the Pleadings 4-9. Mussat rejoins that specific jurisdiction need not be established for claims brought by absent class members, and that in any case, Enclarity waived its personal jurisdiction defense by failing to raise it earlier. The Court agrees with the latter of Mussat's arguments, and also finds that Enclarity's motion is untimely. Accordingly, the motion is denied.

I. Enclarity's Motion is Untimely

Enclarity styles its motion as one for judgment on the pleadings under Rule 12(c), but clearly seeks the relief contemplated by Rule 12(b)(2), which permits a defendant to seek dismissal for lack of personal jurisdiction. Presumably, Enclarity has done so because Rule 12(b) motions "must" be made before a responsive pleading is filed, Fed. R. Civ. P. 12(b), and Enclarity filed a responsive pleading—its answer—before making this motion. See Hedeen Int'l, LLC v. Zing Toys, Inc. , 811 F.3d 904, 906 (7th Cir. 2016) (explaining that a rule 12(b) motion cannot occur after a responsive pleading is filed).⁴ The Seventh Circuit has stated that "a defendant may use a rule 12(c) motion after the close of the pleadings to raise various rule 12(b) defenses regarding procedural defects," Alexander v. City of Chicago , 994 F.2d 333, 336 (7th Cir. 1993), but the treatise cited by the court in making this point explains that Rule 12(c) enables parties to assert only certain procedural defenses after the close of the pleadings, as authorized by Rule 12(h)(2) and (3). 5C Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure § 1367 (3d ed., 2018). And according to the plain text of Rule 12(h)(2) and (3), the only 12(b) defenses that may properly be brought after the close of pleadings in a 12(c) motion are 1) failure to state a claim upon which relief can be granted, 2) failure to join a party required by Rule 19(b), and 3) lack of subject matter jurisdiction. Id. Thus, asserting a personal jurisdiction defense in a Rule 12(c) motion is improper. See also Walker v. Carnival Cruise Lines, Inc. , 87 C 115, 1987 WL 19554, at *9 n. 1 (N.D. Ill. Nov. 5, 1987) ("A Rule 12(c) motion is an inappropriate vehicle for preliminary matters such as jurisdiction or venue, being ordinarily used for judgments on the merits of a complaint."). Accordingly, Enclarity can neither make a timely Rule 12(b)(2)motion, nor bypass the 12(b) timing requirements by invoking Rule 12(c). And while some courts "routinely forgive untimely Rule 12 motions," Lieberman v. Budz , No. 00 C 05662, 2013 WL 157200, at *9 (N.D. Ill. Jan. 15, 2013), this Court is not inclined to do so here because, as discussed below, Enclarity should have asserted its personal jurisdiction defense well before it answered Mussat's complaint.

II. Enclarity Waived its Personal Jurisdiction Defense

The Federal Rules of Civil Procedure make clear that a party may not raise in a Rule 12 motion a personal jurisdiction defense that was "available but omitted" from an earlier Rule 12 motion. Fed. R. Civ. P. 12(g)(2). Omitting an available defense from the first Rule 12 motion a party files results in waiver of that defense. Fed. R. Civ. P. 12(h)(1)(A). Enclarity acknowledges that it objected to personal jurisdiction only after the Court denied its 12(b)(6) motion to dismiss. It argues, however, that the objection was not "available" when it filed its first motion (and therefore not waived) because the Supreme Court had not yet decided Bristol-Myers , the case upon which the current motion is premised. Defendant's Reply in Support of Motion for Judgment on the Pleadings 8, ECF No. 75.

Courts have formulated what it means for a defense to be "available" in different ways. Generally, though, parties avoid waiver despite omitting a defense from an earlier motion when "a prior authoritative decision indicated that the defense was unavailable" and "the defense became available thereafter by way of supervening authority (say, an overruling of the prior decision or a legislative clarification.)" Bennett v. City of Holyoke , 362 F.3d 1, 7 (1st Cir. 2004) ; see also In re Micron Tech., Inc. , 875 F.3d 1091, 1096 (Fed. Cir. 2017) (no waiver where raising defense would have been improper given controlling precedent). A defense is "available," however, if the standard that governs it was the same before and after the allegedly supervening decision. See, e.g., Gilmore v. Palestinian Interim Self-Gov't Auth. , 843 F.3d 958, 964 (D.C. Cir. 2016) (A defense is "available" unless "its legal basis did not exist at the time of the answer or pre-answer motion, or the complaint does not contain facts sufficient to indicate that a defense was possible."); Am. Fid. Assur. Co. v. Bank of New York Mellon , 810 F.3d 1234, 1241 (10th Cir.), cert. denied , ––– U.S. ––––, 137 S.Ct. 90, 196 L.Ed.2d 37 (2016) ; Am.'s Health & Res. Ctr., Ltd. v. Promologics, Inc. , No. 16 C 9281, 2018 WL 3474444, at *3 (N.D. Ill. July 19, 2018) ("Without an intervening change in the law and without an earlier, controlling authority blockading such efforts, the Defendants' failure to mount a timely...