Thomas v. Life Protect 24/7 Inc.

• Decision Date: 10 September 2021
• Docket Number: Civil Action No. 4:20-cv-03612
• Parties: Kelly THOMAS, Plaintiff, v. LIFE PROTECT 24/7 INC. d/b/a Life Protect 24/7, Defendant.
• Court: U.S. District Court — Southern District of Texas

559 F.Supp.3d 554

Kelly THOMAS, Plaintiff,

v.LIFE PROTECT 24/7 INC. d/b/a Life Protect 24/7, Defendant.

Civil Action No. 4:20-cv-03612

United States District Court, S.D. Texas, Houston Division.

Signed September 10, 2021

Jacob Uri Ginsburg, Amy Lynn Bennecoff Ginsburg, Kimmel & Silverman, PC, Ambler, PA, for Plaintiff.

Bridget C. DuPey, Brownstein Hyatt et al., Jesse D. Sutz, Matthew C. Arentsen, Brownstein Hyatt Farber Schreck, LLP, Denver, CO, Christopher M. Jordan, Munsch Hardt et al., Houston, TX, for Defendant.

OPINION AND ORDER DENYING MOTION TO DISMISS

Charles Eskridge, United States District Judge

The motion by Defendant Life Protect 24/7, Inc., doing business as Life Protect 24/7, to dismiss the amended complaint of Plaintiff Kelly Thomas is denied. Dkt 13.

1. Background

Congress enacted the Telephone Consumer Protection Act in 1991 in response to a "torrent of vociferous consumer complaints about intrusive robocalls." Barr v. American Association of Political Consultants , ––– U.S. ––––, 140 S.Ct. 2335, 2344, 207 L.Ed.2d 784 (2020). It imposes a number of restrictions on the use of automated telephone equipment. See 47 USC § 227.

Pertinent here, § 227(b)(1)(A)(iii) essentially bans robocalls to cell phones, with § 227(c)(5) and 47 CFR § 64.1200(c) making it "unlawful for a caller to make telephonic solicitations to a residential telephone number listed on the federal do-not-call registry." Cunningham v. Mark D. Guidubaldi & Associates LLC , 2019 WL 1119365, *2 (E.D. Tex.), adopted by 2019 WL 1117915 ; see also Morris v. Hornet Corp. , 2018 WL 4781273, *4 (E.D. Tex.), adopted by 2018 WL 4773547. The TCPA also "creates a private right of action for persons to sue to enjoin unlawful uses of autodialers and to recover up to $1,500 per violation or three times the plaintiffs’ actual monetary losses."

Facebook, Inc. v. Duguid , ––– U.S. ––––, 141 S.Ct. 1163, 1168, 209 L.Ed.2d 272 (2021), citing 47 USC § 227(b)(3).

Unfortunately, anyone with a cell phone knows that the threat of civil action hasn't stopped unsolicited robocalls from annoying consumers. Thomas lives in Katy, Texas and is one of those annoyed consumers. Dkt 9 at ¶ 6. She accuses Life Protect of being a robocall offender. Id. at ¶¶ 15, 18–20; Dkt 17 at 1–2. Life Protect is a corporation that sells medical alert devices with its principal place of business in Norfolk, Virginia. Dkt 9 at ¶ 8; Dkt 13 at 8. It also appears to be incorporated there, according to records of the Virginia State Corporation Commission. See https://cis.scc.virginia.gov/EntitySearch/Index

Thomas claims that she's been on the federal do-not-call registry since July 2008. Dkt 9 at ¶ 16. She alleges that Life Protect nonetheless called her personal cell phone "on a repetitive and continuous basis for solicitation purposes" beginning in September 2019. Id. at ¶ 13. Each time she answered, she "heard a pre-recorded voice before anyone came on the line, indicating to her that the call was made using an automated telephone dialing system." Id. at ¶ 18. And whenever she did speak with a live person, she "was solicited to purchase one of Defendant's medical alert devices." Id. at ¶ 19.

During one of these calls in December 2019, Thomas actually purchased a medical alert device "to ascertain who was responsible for the calls." Id. at ¶ 20. Her credit-card statement depicts that charge along with two telephone numbers. Dkt 9 at ¶¶ 22–23; see Dkt 9-2 (credit card statement). Thomas says that she called both numbers and heard an automated message indicating that she had reached "Life Protect 24/7." Dkt 9 at ¶ 24. Life Protect also mailed a confirmation of the purchase and the product itself to Thomas in Texas. Id. at ¶ 21; Dkt 9-1 (order confirmation form); Dkt 17 at 8.

Thomas brought action against Life Protect in October 2020 for violating several provisions of the TCPA and the Texas Business & Commerce Code. Dkt 1 at ¶¶ 23–44. She then amended her complaint in November 2020, keeping the causes of action the same while adding to her factual allegations. See generally Dkt 9.

Life Protect moved to dismiss the amended complaint in December 2020. It challenges subject matter and personal jurisdiction, while also arguing that Thomas didn't sufficiently plead her claim under the Texas Business & Commerce Code. Dkt 13. Thomas responded. Dkt 17. The parties argued the motion in March 2021. Dkt 33. Thomas there withdrew her claim under the Texas Business & Commerce Code, which was dismissed. Dkt 33 at 25.

Life Protect was also recently before another court in the Southern District of Texas on a similar matter. Thomas is apparently a member of a "Facebook group that seeks to file lawsuits against various companies based on alleged robocalls." Id. at 22–23. One member of that Facebook group brought action against Life Protect in June 2020, which was pending before Judge Kenneth M. Hoyt until the plaintiff voluntarily dismissed her action. See Pepper v. Life Protect 24/7 Inc. , Civil Action No 20-02154, 2020 WL 10981893, Dkts 40, 41.

2. Legal standard

a. Subject matter jurisdiction

Rule 12(b)(1) of the Federal Rules of Civil Procedure permits a defendant to seek dismissal of an action for lack of subject matter jurisdiction. This includes a challenge to the standing of the plaintiff to assert a claim and to the constitutionality of the TCPA provision that the plaintiff claims has been violated.

Federal courts are ones of limited jurisdiction. Howery v. Allstate Insurance Co. , 243 F.3d 912, 916 (5th Cir. 2001), citing Kokkonen v. Guardian Life Insurance Co. of America , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). A federal court's decision to hear a case that's beyond its subject matter jurisdiction is not a "mere technical violation," but rather "an unconstitutional usurpation" of power. Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure § 3522 (West 3d ed June 2021 update). Subject matter jurisdiction is thus a threshold matter. Steel Co. v. Citizens for a Better Environment , 523 U.S. 83, 94–95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), quoting Mansfield, Coldwater & Lake Michigan Railway Co. v. Swan , 111 U.S. 379, 4 S.Ct. 510, 28 L.Ed. 462 (1884).

Dismissal is appropriate "when the court lacks the statutory or constitutional power to adjudicate the claim." In re Federal Emergency Management Agency Trailer Formaldehyde Products Liability Litigation , 668 F.3d 281, 286 (5th Cir. 2012), quoting Home Builders Association Inc. v. City of Madison , 143 F.3d 1006, 1010 (5th Cir. 1998) (internal quotations omitted). The burden is on the party asserting jurisdiction to establish by a preponderance of the evidence that it is proper. New Orleans & Gulf Coast Railway Co. v. Barrois , 533 F.3d 321, 327 (5th Cir. 2008) (citations omitted). Indeed, a presumption against subject matter jurisdiction exists that "must be rebutted by the party bringing an action to federal court." Coury v. Prot , 85 F.3d 244, 248 (5th Cir. 1996).

b. Personal jurisdiction

Rule 12(b)(2) of the Federal Rules of Civil Procedure allows a defendant to move for dismissal of an action for lack of personal jurisdiction. A federal court may exercise jurisdiction over a nonresident defendant if the long-arm statute of the forum state confers personal jurisdiction over that defendant and exercising that jurisdiction is consistent with the Due Process Clause of the Fourteenth Amendment. McFadin v. Gerber , 587 F.3d 753, 759 (5th Cir. 2009) (citation omitted). The Texas long-arm statute confers jurisdiction "to the limits of federal due process" and thus collapses the personal jurisdiction inquiry here into one federal due process analysis. Latshaw v. Johnston , 167 F.3d 208, 211 (5th Cir. 1999) (citations omitted); Johnston v. Multidata Systems International Corp. , 523 F.3d 602, 609 (5th Cir. 2008) (citation omitted).

Federal due process permits personal jurisdiction over a nonresident defendant who has minimum contacts with the forum state, subject to the limit of not offending "traditional notions of fair play and substantial justice." Johnston , 523 F.3d at 609 (internal quotations omitted). Such contacts may establish either general or specific jurisdiction.

A federal court has general jurisdiction over a nonresident defendant "to hear any and all claims" if that defendant's contacts with the forum are so "continuous and systematic" as to render it "essentially at home" in the forum. Daimler AG v. Bauman , 571 U.S. 117, 127, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014), quoting Goodyear Dunlop Tires Operations SA v. Brown , 564 U.S. 915, 919, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011) (internal quotations omitted). Demonstrating that general personal jurisdiction exists is difficult and requires "extensive contacts between a defendant and a forum." Johnston , 523 F.3d at 609, quoting Submersible Systems Inc. v. Perforadora Central SA , 249 F.3d 413, 419 (5th Cir. 2001). "General jurisdiction can be assessed by evaluating contacts of defendants with the forum over a reasonable number of years, up to the date the suit was filed." Johnston , 523 F.3d at 610, quoting Access Telecom Inc. v. MCI Telecommunications Corp. , 197 F.3d 694, 717 (5th Cir. 1999) (internal quotations omitted). Such contacts "must be reviewed in toto, and not in isolation from one another." Johnston , 523 F.3d at 610, citing Holt Oil & Gas Corp. v. Harvey , 801 F.2d 773, 779 (5th Cir. 1986).

A federal court has specific jurisdiction over a nonresident defendant to adjudicate "issues deriving from, or connected with, the very controversy that establishes jurisdiction." Goodyear , 564 U.S. at 919, 131 S.Ct. 2846 (quotation omitted). It exists "when a nonresident defendant ‘has purposefully directed its activities at the forum state and the litigation results from alleged injuries that arise out of or relate to those activities.’ " Walk Haydel & Associates Inc. v. Coastal Power Production Co. , 517 F.3d 235, 243 (5th Cir. 2008), quoting Panda...