Opinion
EP-22-CV-00029-FM
11-10-2022
ERIK SALAIZ, Plaintiff, v. PELICAN INVESTMENT HOLDINGS GROUP, LLC b/d/a AAP a Delaware Limited Liability Company; DIMENSION SERVICE CORPORATION, INC., an Ohio Corporation; GUS RENNY aka GUSTAV RENNY; SING FOR SERVICES, LLC d/b/a MEPCO; and SUNPATH LTD, Defendants.
ORDER DENYING DEFENDANT RENNY'S MOTION TO DISMISS
FRANK MONTALVO UNITED STATES DISTRICT JUDGE
Before the court are “Defendant, Gustav Renny's, Motion to Dismiss Plaintiff, Erik Salaiz's, First Amended Complaint” (“Motion”) [ECF No. 23], filed April 20, 2022, by Gustav Renny (“Defendant” or “Defendant Renny”); “Plaintiff's Response to Defendant Gustav Renny's Motion to Dismiss Plaintiff Erik Salaiz's First Amended Complaint” (“Response”) [ECF No. 33], filed May 11, 2022, by Erik Salaiz (“Plaintiff”); and “Defendant, Gustav Renny's, Reply in Support of His Motion to Dismiss Plaintiff, Erik Salaiz's, First Amended Complaint” (“Reply”) [ECF No. 35], filed May 16, 2022, by Defendant. After due consideration of the Motion, Response, Reply, and applicable law, the Motion is DENIED.
I. BACKGROUND
A. Factual Background
Plaintiff's allegations, which the court takes as true, are as follows: Defendant AAP telemarkets on behalf of companies like Dimension Service Corporation, Inc. and Sunpath Ltd. (“Defendants VSC Administrators”) who administer vehicle service contracts (“VSCs”).Defendant Renny is the “sole director” and Chief Executive Officer (“CEO”) of Defendant AAP.Defendant Mepco is the finance company “that collects the payments for every VSC that consumers purchase from” Defendants VSC Administrators.
“Plaintiff's First Amended Complaint” (“Compl.”) 7 ¶¶ 29-30, filed Apr. 6, 2022.
Id. at 2 ¶ 4, 15 ¶ 95, 16 ¶ 100, 26 ¶ 149.
Id. at 8 ¶ 31.
Beginning in August 2021, Plaintiff began receiving robocalls from Defendant AAP soliciting VSCs on behalf of Defendants VSC Administrators. These robocalls were “planned, directed, initiated, and controlled” by Defendant Renny, who approved the contracts with telemarketers and the scripts they use when soliciting products for Defendants VSC Administrators, and authorized payments to telemarketers, which were paid from bank accounts he owns and control.
Id. at 10-14.
Id. at 26 ¶ 148, 16 ¶ 101-03.
B. Procedural Background
Plaintiff filed an amended complaint against Defendants Renny, AAP, Mepco, Dimension Service Corporation, Inc., and Sunpath Ltd. in April 2022 seeking relief under the Telephone Consumer Protection Act (“TCPA”), which prohibits unsolicited telemarketing robocalls.Defendant Renny moved to dismiss shortly thereafter, Plaintiff responded, and Defendant Renny replied.
See generally id.
See “Defendant, Gustav Renny's, Motion to Dismiss Plaintiff, Erik Salaiz's, First Amended Complaint” (“Mot.”), ECF No. 23, filed Apr. 20, 2022; “Plaintiff's Response to Defendant Gustav Renny's Motion to Dismiss Plaintiff Erik Salaiz's First Amended Complaint” (“Resp.”), ECF No. 33, filed May 11, 2022; “Defendant, Gustav Renny's, Reply in Support of His Motion to Dismiss Plaintiff, Erik Salaiz's, First Amended Complaint” (“Reply”), ECF No. 35, filed May 16, 2022.
In moving to dismiss, Defendant first contends the court has no personal jurisdiction over him since he is “merely a consultant that handles compliance for AAP.” He “is not an officer, director, owner or member of AAP” and “has never conducted business, owned property,” or “purposefully avail[ed] himself of the benefits and protections of the State of Texas.”Alternatively, Defendant argues Plaintiff failed to sufficiently allege he “had any involvement whatsoever” in any of the calls.
Mot. at 2.
Id.
Id.
II. LEGAL STANDARD
Federal Rules of Civil Procedure (“Rule”) 12(b)(2) requires a court to dismiss a claim if the court does not have personal jurisdiction over the defendant. A federal court may exercise jurisdiction over a nonresident defendant, provided state law confers such jurisdiction and its exercise comports with due process under the Constitution.” Due process permits the exercise of jurisdiction only if the nonresident defendant has purposefully established “minimum contacts” with the forum state “such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.'”
DeMelo v. Toche Marine, Inc., 711 F.2d 1260 (5th Cir.1983). Omni Capital Int'l v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 105-06 (1987).
Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)).
The minimum contacts of a nonresident defendant with the forum state may support either “general” or “specific” jurisdiction. General jurisdiction exits “when defendant's affiliations with the State are so ‘continuous and systematic' as to render [it] essentially at home in the forum State.” When analyzing specific jurisdiction, a court considers, among other things, whether the defendant purposely directed its activities toward the forum state or purposefully availed itself of the privileges of conducting activities there. This “purposeful availment requirement ensures that a defendant will not be hailed into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts, or of the unilateral activity of another party or a third person.”
Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011); Interfirst Bank Clifton v. Fernandez, 844 F.2d 279, 282 (5th Cir. 1988), opinion withdrawn in part on other grounds, 853 F.2d 292 (1988).
Daimler AG v. Bauman, 571 U.S. 117, 127 (2014); Goodyear Dunlop Tires Operations, S.A., 564 U.S. at 919 (quoting Int'l Shoe Co., 326 U.S. at 316).
Monkton Ins. Servs., Ltd. v. Ritter, 768 F.3d 429, 433 (5th Cir. 2014) (citing Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 271 (5th Cir. 2006)).
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985).
Rule 12(b)(6) allows dismissal of a complaint for “failure to state a claim for which relief can be granted.” “The central issue is whether, in the light most favorable to the plaintiff, the complaint states a valid claim for relief.” To survive a motion to dismiss, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” “[F]acial plausibility” exists “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”Therefore, a complaint is not required to set out “detailed factual allegations,” but it must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.”
Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 313 (5th Cir. 2002) (internal quotation marks and citation omitted); see also In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Id. (citing Twombly, 550 U.S. at 556).
Twombly, 550 U.S. at 555.
III. DISCUSSION
A. Personal Jurisdiction
Defendant argues the court has no personal jurisdiction over him because he “is not an officer, director, owner or member of AAP.” Rather, he claims he is merely a “consultant” for AAP who handles compliance, not an “alter ego of AAP,” and that he has never comingled assets with AAP. Further, he contends “Plaintiff fail[ed] to provide any facts or specificity to plausibly support a claim for personal jurisdiction over [Defendant] Renny.”
Id. at 2.
Id., “Declaration of Gustav Renny in Support of His Motion to Dismiss Plaintiff's First Amended Complaint” 2, ECF No. 23-1, filed Apr. 20, 2022.
Id. at 10.
The court disagrees. Plaintiff alleges Defendant is the “sole director” and CEO of Defendant AAP. He claims Defendant 1) “planned, directed, initiated, and controlled” the calls at issue; 2) approved the contracts with telemarketers and the scripts they use when soliciting products for Defendants VSC Administrators; and 3) authorized payments to telemarketers, which were paid from bank accounts he owns and control. These factual allegations are sufficient to establish Defendant's possible responsibility for telemarketing calls in Texas, and therefore specific personal jurisdiction over Defendant.
Compl. at 26 ¶ 149, 2 ¶ 4.
Id. at 26 ¶ 148, 10 ¶ 50, 16 ¶¶ 101-03.
Furthermore, Defendant's claims cannot form the basis for a motion to dismiss for lack of personal jurisdiction: when a court rules on such a motion “the nonmoving party need only make a prima facie showing, and the court must accept as true the nonmover's allegations and resolve all factual disputes in its favor.” Otherwise Defendant could avoid jurisdiction simply by filing a declaration (as he did here) denying the jurisdictional facts asserted by Plaintiff.
Guidry v. U.S. Tobacco Co. Inc., 188 F.3d 619, 625 (5th Cir. 1999)
B. Failure to State a Claim
Next Defendant argues Plaintiff has failed to state a claim for which relief can be granted.First, he asserts Plaintiff has not identified the alleged callers. Defendant is incorrect. The court reiterates that, at the motion to dismiss stage, it must take Plaintiff's factual allegations as true and indulge all reasonable inferences in his favor. Plaintiff need only state a plausible claim for relief. Here, he has identified the callers, alleging he received several calls “from Defendant AAP,” of which he claims Defendant is the director and CEO. Further, he asserts the payments he made during these calls showed up on his bank statements as having gone to Defendant AAP.These allegations establish the identity of the caller and Defendant's relationship to that caller.
Mot. at 11.
Id. at 12.
Iqbal, 556 U.S. at 678.
Compl. at 7 ¶ 34, 8 ¶¶ 38, 44, 9 ¶¶ 50, 56, 26 ¶ 149, 2 ¶ 4.
Id. at 15 ¶ 90.
Second, Defendant argues Plaintiff failed to establish Defendant's personal liability since he has not shown Defendant had any control over the calls. To that end, “an officer may be liable under the TCPA if he had direct, personal participation in or personally authorized the conduct found to have violated the statute, and was not merely tangentially involved.”
Mot. at 12-13.
Texas v. Am. Blastfax, Inc., 164 F.Supp.2d 892, 898 (W.D. Tex. 2001).
Defendant relies on Cunningham v. Prof'l Educ. Inst, Inc. But that case is misapplied. Individual defendants were dismissed because the plaintiff had not shown they “actually participated in the TCPA violation,” “sufficiently controlled the policies and practices . . . behind the TCPA violations,” or “personally authorized any of the alleged wrongful conduct.”
See Mot. at 13-14 (citing Cunningham v. Prof'l Educ. Inst, Inc., No. 4:17-CV-00894-ALM-CAN, 2018 WL 6709515 (E.D. Tex. Nov. 5, 2018)).
Cunningham, 2018 WL 6709515, at * 4-5.
Here, Plaintiff has alleged that Defendant planned, initiated, and directed the robocalls, approved the contracts with telemarketers and the scripts they use, and paid the telemarketers from bank accounts he owns and control. This is adequately shows Defendant's active participation in the violative calls. Thus, he has stated a plausible claim for relief.
Compl. at 26 ¶¶ 148, 146, 16 ¶ 103.
IV. CONCLUSION
Accordingly, it is HEREBY ORDERED that “Defendant, Gustav Renny's, Motion to Dismiss Plaintiff, Erik Salaiz's, First Amended Complaint” [ECF No. 23] is DENIED.