United States District Court, D. New Mexico
JAMES L. ARNOLD, Plaintiff,
GRAND CELEBRATION CRUISES, LLC and BPCL MANAGEMENT LLC a/k/a BAHAMAS PARADISE CRUISE LINE LLC, Defendants.
MEMORANDUM OPINION AND ORDER
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).
and Procedural History
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
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.
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.
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
12(b)(2) Motion to Dismiss for Lack of 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.
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 “traditional notions of fair play ...