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Arnold v. Grand Celebration Cruises, LLC

United States District Court, D. New Mexico

August 16, 2017

JAMES L. ARNOLD, Plaintiff,


         Defendant BPCL Management LLC (Defendant BPCL) seeks to dismiss all of Plaintiff James L. Arnold's (Plaintiff's) claims against it for lack of personal jurisdiction and for failure to state a claim upon which relief can be granted. DEFENDANT BPCL MANAGEMENT LLC'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT AND INCORPORATED MEMORANDUM OF LAW IN SUPPORT (Doc. No. 9) (Motion to Dismiss). Plaintiff argues that the Court should deny the Motion to Dismiss because he has made an adequate showing of personal jurisdiction and because he has set forth sufficient allegations to state a claim. PLAINTIFF'S RESPONSE TO MOTION TO DISMISS (Doc. No. 12) (Response). Defendant BPCL asserts that “Plaintiff's Response fails to meet his burden of rebutting BPCL's submission of proof of lack of jurisdictional contacts, and fails to point to allegations that succeed in stating a plausible claim against BPCL.” DEFENDANT BPCL MANAGEMENT, LLC'S REPLY TO PLAINTIFF'S RESPONSE TO THE MOTION TO DISMISS PLAINTIFF'S COMPLAINT (Doc. No. 14) (Reply at 2).

         Background and Procedural History

         On May 22, 2017, Plaintiff filed in the First Judicial District Court in the State of New Mexico an AMENDED COMPLAINT FOR VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT, THE UNFAIR PRACTICES ACT AND TORTS (Doc. No. 1) (Amended Complaint), alleging, in part, that Defendant BPCL violated the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, et seq. On June 29, 2017, Defendant BPCL removed this case to federal court on the basis of federal question jurisdiction.[1]

         Plaintiff contends that “Defendants own and operate a cruise ship named “The Grand Celebration, which ports in Palm Beach County, Florida” and that “Defendants or their telemarketers” called Plaintiff's wireless cell phone in New Mexico to solicit business by using auto-dialers (ATDS) or pre-recorded messages in violation of the TCPA. Amended Complaint, ¶¶ 4-16. More specifically, Plaintiff asserts that Defendants and/or their telemarketers unlawfully: 1) used an ATDS to call Plaintiff's cell phone; 2) used pre-recorded messages to solicit business by calling Plaintiff's cell phone without Plaintiff's prior consent; and 3) made telemarketing calls to Plaintiff's cell phone by falsely using telephone numbers with a “505” area code (“robot calls”) even though the robot call was made outside the 505 area code; and 4) made robot calls to Plaintiff's cell phone number by failing to disclose the name of the caller or the telemarketer's true name within 15 seconds. Amended Complaint ¶¶ 5, 7, 8, 9, 10, 12, 15.

         Plaintiff further alleges that he is suing “each of Defendants[] or their telemarketers[]” under the TCPA and the New Mexico Unfair Practices Act, and for “nuisance, trespass and intentional infliction of aggravation and distress.” Id. ¶¶ 27, 30, 32. Plaintiff seeks trebled damages up to $1500 for each violation of the TCPA and asks for an award of nominal and punitive damages, which he believes total at least $50, 000. Id. ¶¶ 26, 31. The Amended Complaint also requests class certification under New Mexico Rule of Civil Procedure 1-023. Id. ¶¶ 33-50.

         Motion to Dismiss

         Defendant BPCL believes that dismissal is appropriate for lack of personal jurisdiction under Fed.R.Civ.P. 12(b)(2) because BPCL is headquartered in Florida, incorporated under the laws of Florida, and has no connection to the State of New Mexico. Motion to Dismiss at 4. In addition, Defendant BPCL argues that the Amended Complaint fails to state a claim against BPCL under Fed. R. Civ. 12(b)(6). Because the Court determines that Plaintiff's allegations do not establish personal jurisdiction over Defendant BPCL, the Court does not address BPCL's Motion to Dismiss for failure to state a claim.


         Rule 12(b)(2) Motion to Dismiss for Lack of Personal Jurisdiction

         A. Legal Standard

         Personal jurisdiction may exist in two ways: 1) general jurisdiction and/or 2) specific jurisdiction. A court has general jurisdiction over a defendant when the defendant's contacts with a state “are so ‘continuous and systematic' as to render [the defendant] essentially at home in the forum State.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (citation omitted). In contrast, “specific jurisdiction … ‘depends on an affiliation[n] between the forum and the underlying controversy, ' principally, activity or an occurrence that takes place in the forum State and is therefore subject to the State's regulation.” Id. (citation omitted). Because Plaintiff does not appear to assert the existence of general jurisdiction, see Response at 6, this Court addresses whether it has specific jurisdiction over non-resident Defendant BPCL.

         Specific jurisdiction grows out of “the relationship among the defendant, the forum, and the litigation.” Walden v. Fiore, ___U.S. ___, 134 S.Ct. 1115, 1121 (2014) (citation omitted). If the “controversy is related to or ‘arises out of' [Defendant BPCL's] contacts with the forum[, ]” specific jurisdiction exists. Helicopteros Nacionales de Colom., S.A. v. Hall, 466 U.S. 408, 414 (1984) (citation omitted). The Tenth Circuit Court of Appeals observes that the specific jurisdiction inquiry involves two steps.

First, we must determine whether the defendant has such minimum contacts with the forum state “that he should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1979)). Second if the defendant's actions create sufficient minimum contacts, we must then consider whether the exercise of personal jurisdiction over the defendant offends ‚Äútraditional notions of fair play ...

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