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McDermet v., Inc.

United States District Court, D. Massachusetts

April 16, 2019




         William McDermet, proceeding pro se, brought this lawsuit on January 9, 2019, in Essex Superior Court against, Inc. (Porch)[1]alleging violations of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227 (Count I), the Massachusetts Telemarketing Solicitation Act (MTSA), Mass. Gen Laws ch. 159C, and Mass. Gen Laws ch. 93A (together Count II).[2] McDermet states that Porch or its agents made multiple unsolicited calls to his home and mobile phones, even though his phone numbers are enrolled in the state and federal Do Not Call registries. Porch removed the case to the federal district court on February 14, 2019, and now moves to dismiss the Complaint for want of personal jurisdiction under Fed.R.Civ.P. 12(b)(2) and for failure to state a claim under Fed.R.Civ.P. 12(b)(6).[3] For the reasons to be explained, Porch's motion to dismiss for lack of personal jurisdiction will be denied, while its motion to dismiss for failure to state a claim will be granted in part and denied in part.


         The facts, viewed in the light most favorable to McDermet as the nonmoving party, are as follows. McDermet is a resident of Ipswich, Massachusetts, who listed both his home and mobile phone numbers on the state and federal Do Not Call registries.[4] McDermet, nonetheless, allegedly received over 130 unsolicited phone calls from Porch or its agents, among others, between April of 2016 and November of 2018.[5] Nineteen of the calls inquired whether he “needed home improvement services.” Compl. (Dkt # 4-1) ¶ 10. Some callers expressly disclosed an affiliation with Porch. On January 21, 2018, McDermet sent a cease and desist letter to Porch demanding that it stop the calls and provide him with the names of the callers. Id. ¶ 19. After receiving no response, McDermet filed this lawsuit on January 9, 2019.


         Personal Jurisdiction

         “When a district court rules on a motion to dismiss for lack of personal jurisdiction without holding an evidentiary hearing, as in this case, the ‘prima facie' standard governs its determination.” United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 618 (1st Cir. 2001). The prima facie standard directs the court to “take specific facts affirmatively alleged by the plaintiff as true (whether or not disputed) and construe them in the light most congenial to the plaintiff's jurisdictional claim.” Massachusetts Sch. of Law at Andover, Inc. v. Am. Bar Ass'n, 142 F.3d 26, 34 (1st Cir. 1998). McDermet bears the burden of establishing that the court has personal jurisdiction over Porch. Hannon v. Beard, 524 F.3d 275, 279 (1st Cir. 2008).

         To exercise personal jurisdiction, the court must “find sufficient contacts between the defendant and the forum to satisfy both that state's long-arm statute and the Fourteenth Amendment's Due Process clause.” Sawtelle v. Farrell, 70 F.3d 1381, 1387 (1st Cir. 1995). Since “the Supreme Judicial Court of Massachusetts has interpreted the state's long-arm statute as an assertion of jurisdiction over the person to the limits allowed by the Constitution of the United States, ” it makes sense to dispense with the statutory inquiry and “proceed directly to the constitutional analysis.” Phillips v. Prairie Eye Ctr., 530 F.3d 22, 26 (1st Cir. 2008) (citations omitted). Here, because McDermet relies on a claim of specific jurisdiction, the constitutional test “has three components: relatedness, purposeful availment, and reasonableness.” Knox v. Metal Forming, Inc., 914 F.3d 685, 690 (1st Cir. 2019). The First Circuit has articulated this three-part test as follows:

First, the claim underlying the litigation must directly arise out of, or relate to, the defendant's forum-state activities. Second, the defendant's in-state contacts must represent a purposeful availment of the privilege of conducting activities in the forum state, thereby invoking the benefits and protections of that state's laws and making the defendant's involuntary presence before the state's courts foreseeable. Third, the exercise of jurisdiction must, in light of the Gestalt factors, be reasonable.

Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 60 (1st Cir. 2002) (citation omitted).

         Porch's argument against personal jurisdiction is grounded on its status as a Delaware corporation with a principal place of business in Seattle, Washington, and the purported failure of the Complaint “to allege any connection between Porch and Massachusetts - let alone between Porch's purported conduct in Massachusetts and [McDermet's] claims.” Def.'s Mem. (Dkt # 13) at 9; see also Cardenas v. Spinnaker Resorts, Inc., 2017 WL 3315285, at *6 (D.N.J. Aug. 3, 2017) (finding a lack of personal jurisdiction because, among other things, the “[p]laintiff fail[ed] to allege that the [defendant] made the unsolicited telephone calls that gave rise to this action”).

         The argument overlooks the generous reading of the Complaint that the prima facie standard requires. First, McDermet directly alleges that Porch or agents acting on its behalf called him on many occasions.[6] These calls form the basis of Porch's alleged violations of the Do Not Call prohibitions. Second, the Complaint alleges that Porch or its agents called McDermet's mobile and home phone numbers that have a Massachusetts area code (978), an allegation sufficient to establish that they purposefully availed themselves of the privilege of doing business in the Commonwealth. See Abramson v. Caribbean Cruise Line, Inc., 2014 WL 2938626, at *9 (W.D. Pa. June 30, 2014) (“By initiating a call to . . . a number [with a Pennsylvania area code], it can be said that Defendant CCL ‘expressly aimed their conduct at Pennsylvania' because the number was associated with the State of Pennsylvania.”); Luna v. Shac, LLC, 2014 WL 3421514, at *3 (N.D. Cal. July 14, 2014) (“[W]here Shac intentionally sent text messages directly to cell phones with California based area codes, which conduct allegedly violated the TCPA and gave rise to this action, Shac expressly aimed its conduct at California.”); cf. Daynard, 290 F.3d at 62 (“Even in cases where the defendant was not physically present in the forum, where the defendant initiated the transaction by mailing or calling the plaintiff in the forum and when the defendant contemplated that the plaintiff would render services in the forum . . . many courts have found jurisdiction.”) (citation omitted). Third, the Gestalt factors support the conclusion that jurisdiction is reasonable, [7] especially given the court's deference to McDermet's choice of forum and the Commonwealth's interest in adjudicating a dispute between a foreign corporation and a Massachusetts resident. See Sawtelle, 70 F.3d at 1395.[8]

         Failure to State a Claim

          “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if its factual content “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “If the factual allegations in the complaint are too meager, vague, or conclusory to remove the possibility of relief from the realm of mere conjecture, the complaint is ...

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