In TCPA cases, some defendants who are not “at home” in the forum state will seek dismissal under Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction. Typically, in TCPA cases, a 12(b)(2) motion is filed when the defendant either did not make the call(s) at issue or the call(s) at issue were received by the plaintiff outside the forum state.
However, a potentially significant blow was struck to these 12(b)(2) motions in TCPA cases with the Tenth Circuit’s opinion in Hood v. America Auto Care, LLC, 21 F.4th 1216 (10th Cir. 2021). In Hood, the Tenth Circuit, based on the Supreme Court’s decision in Ford Motor Co. v. Montana Eighth Judicial Circuit District Court, 141 S. Ct. 1017 (2021), held that Colorado had personal jurisdiction over the defendants because, despite the plaintiff having a phone number with a Vermont area code, the defendants directing of similar telemarketing calls to Vermont and Colorado satisfied the purposeful-direction requirement of personal jurisdiction. The Tenth Circuit’s holding essentially means that personal jurisdiction/purposeful availment can be based not just on a defendant’s contact with a plaintiff, but also on any similar contact the defendant had with other persons in the forum state, regardless of whether those similar contacts were legal.
After the Hood decision, it has been a waiting game to see if other Circuits and District Courts will be adopting the Tenth Circuit’s stance on personal jurisdiction/purposeful availment.
The recent case of Weisbein v. Allergan, Inc., Case No. SA CV 20-0801 FMO (ADSx), 2022 U.S. Dist. LEXIS 79205 (C.D. Cal. Mar. 28. 2022) provides some insight into the Ninth Circuit’s current position. In Weisbein, the defendant, a Delaware corporation with its principal place of business in New Jersey, sought dismissal under Rule 12(b)(2). The California Central District Court granted the defendant’s motion for dismissal, holding that the plaintiff had failed to show a connection between the forum and the specific claims at issue. Specifically, the plaintiff failed to establish personal jurisdiction because the plaintiff had received each of the texts at issue while in Florida, which did not amount to an intentional act expressly aimed at California. The court was not persuaded by the fact that the defendant had California employees that had some involvement in authorizing, outsourcing, or overseeing the subject text program.
Despite this favorable holding to TCPA defendants, it should be noted that an important distinction between Weisbein and Hood is that the complaint in Weisbein appears to not have included allegations of texts similar to the ones received by plaintiff being sent to persons located in California, while the Hood complaint did contain allegations regarding similar calls being sent to persons in Colorado.
While we wait to see what the other Circuits and District Courts will do in the wake of Ford and Hood, it is reassuring to know that at least in the Central District of California, calls made to persons outside of the forum state are not enough to establish personal jurisdiction.
The defendant is not incorporated in the forum state and their principal place of business is not located in the forum state.
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