United States District Court, N.D. Alabama, Western Division
MEMORANDUM OF OPINION
Scott Coogler United States District Judge
Marian Snow ("Plaintiff" or "Snow")
brought this action, pro se, against General
Electric Company, Dell Technologies, Dell, Inc., and Dell EMC
under the Telephone Consumer Protection Act
("TCPA") 47 U.S.C. § 227, and under Alabama
Code § 6-11-20(4) for wrongful conversion of personal
property. Before the Court are motions to dismiss by
Defendant General Electric Company ("GE") (doc. 25)
and Defendant Dell Technologies, Dell Inc., and Dell EMC
("the Dell defendants") (doc. 26) (collectively
"Defendants"). Snow has timely filed her opposition.
The motions are fully briefed and ripe for review. For the
reasons stated below, Defendants' motions to dismiss are
due to be granted in part and denied in part.
March 29, 2014, while living in North Carolina
("NC"), Plaintiff purchased a cell phone provided
by the service Tracfone. Soon afterward, she began to be
bombarded with batches of text messages at all hours of the
day. She asserts Defendants took the actions necessary to
initiate communication with her through the use of her
telephone number by an automated telephone dialing system
resulting in a barrage of unwanted text messages to her cell
phone between April 1, 2014 and January 15, 2015. Snow claims
she received up to thirty-nine text messages within a single
24-hour period-which were often transmitted in batches at a
rate of seven or more per minute. She estimates that a total
of more than 2900 texts were sent to her phone during the
relevant time period, none of which provided an opt-out
mechanism or contact information to allow communication with
the sender. According to Snow, the text messages were sent
from GE, with technical support from Dell, because her phone
number was previously assigned to an employee or device
connected to GE. Some of the text messages purportedly
included GE's web address "ge.com"; Snow
therefore surmises that they were sent by GE. Snow claims
Defendants' actions inflicted upon her: incessant
disturbance and annoyance; persistent interruption of sleep;
loss of time and financial resources; a commandeering of the
data storage and battery life of her cell phone; in addition
to fatigue, anguish, and suffering.
Standard of Review
Rule 12(b)(2) motion to dismiss for lack of personal
jurisdiction, the plaintiff generally "bears the burden
of establishing a prima facie case of jurisdiction over the
movant, non-resident defendant." Morris v. SSE,
Inc., 843 F.2d 489, 492 (11th Cir. 1988) (citations
omitted). "A prima facie case is established if the
plaintiff presents enough evidence to withstand a motion for
directed verdict." Madara v. Hall, 916 F.2d
1510, 1514 (11th Cir. 1990) (citations omitted). The Court
must treat facts alleged in the complaint as true if they are
not controverted by affidavits or non-conclusory declarations
submitted from the defendant. Id. However, if the
defendant submits affidavits or declarations, the plaintiff
must produce additional evidence supporting jurisdiction
unless the defendants' affidavits are only conclusory.
Stubbs v. Wyndham Nassau Resort & Crystal Palace
Casino, 447 F.3d 1357, 1360 (11th Cir. 2006). When
record evidence is in conflict, the Court must "construe
all reasonable inferences in favor of the plaintiff."
Dell defendants and GE-all non-Alabama
corporations-seek dismissal of the claims against them
averring that the Court does not possess personal
jurisdiction over them. Where, as here, jurisdiction is
predicated upon a federal question arising under a statute that
is "silent regarding service of process," Rule 4(e)
requires a court to look to the state long-arm statute to
determine the existence of personal jurisdiction.
Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d
623, 626-27 (11th Cir. 1996) (citation omitted). In this
case, the TCPA does not furnish directions as to service of
process for private actions,  so the Court looks to
Alabama's long-arm statute in deciding whether personal
jurisdiction is present.
jurisdiction is generally a two-step inquiry, as the Court
must consider whether personal jurisdiction is consistent
with the forum state's long-arm statute and whether the
exercise of personal jurisdiction is consistent with the Due
Process Clause of the Fourteenth Amendment. Mut. Serv.
Ins. Co. v. Frit Indus., Inc., 358 F.3d 1312, 1319 (11th
Cir. 2004). However, for federal courts in Alabama "the
two inquiries merge, because Alabama's long-arm statute
permits the exercise of personal jurisdiction to the fullest
extent constitutionally permissible." Sloss Indus.
Corp. v. Eurisol, 488 F.3d 922, 925 (11th Cir. 2007)
(citing Ala. R. Civ. P. 4.2(b)); see also Ex Parte
Edgetech I.G., Inc., 159 So.3d 629, 633 (Ala. 2014).
Thus, the Court need only consider the limits of the Due
Process Clause. Mut. Serv. Ins. Co., 358 F.3d at
process requires only that in order to subject a defendant to
a judgment in personam, if he be not present within the
territory of the forum, he have certain minimum contacts with
it such that the maintenance of the suit does not offend
'traditional notions of fair play and substantial
justice.'" Int'l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945) (quoting Mil
liken v. Meyer, 311 U.S. 457, 463 (1940)). There are two
types of personal jurisdiction-general jurisdiction and
specific jurisdiction -but both are based on the
defendant's contacts with the forum state. "Specific
personal jurisdiction is founded on a party's contacts
with the forum state that are related to the cause of action.
[Whereas, ] [g]eneral personal jurisdiction arises from a
party's contacts with the forum state that are unrelated
to the litigation." Madara v. Hall, 916 F.2d
1510, 1516 n. 7 (11th Cir. 1990) (citations omitted).
Defendants assert that the Court possesses neither general
nor specific jurisdiction over them.
order for the Court to exercise general jurisdiction over the
non-resident defendants Dell and GE, "their affiliations
with [Alabama] [must be] so 'continuous and
systematic' as to render [them] essentially at home in
the State." Daimler AG v. Bauman, 571 U.S. 117,
138-39 (2014) (quoting Goodyear Dunlop Tires Operations,
S.A. v. Brown, 564 U.S. 915, 919 (2011)). "The
'paradigm' forums in which a corporate defendant is
'at home,' ... are the corporation's place of
incorporation and its principal place of business."
BNSF Ry. Co. v. Tyrrell, 137 S.Ct. 1549, 1558 (2017)
(citing Daimler, 571 U.S. at 137). While the
Daimler Court did not "foreclose the
possibility that in an exceptional case, ... a
corporation's operations in a forum other than its formal
place of incorporation or principal place of business may be
so substantial and of such nature as to render the
corporation at home in that State" such cases are rare.
Daimler, 571 U.S. at 138 n. 19 (citing Perkins
v. Benguet Consol. Mining Co., 342 U.S. 437, 447-448
(1952) in which a company's Philippine mining operations
"were completely halted during the occupation ... by the
Japanese"; and the company's president, from his
Ohio office, "supervised policies dealing with the
rehabilitation of the corporation's properties in the
Philippines and . . . dispatched funds to cover purchases of
machinery for such rehabilitation" as such an
exception). The contacts must be sufficient that suit is
justified in the subject state even in the absence of related
dealings. See Int'l Shoe Co., 326 U.S.
at 318. For example, a defendant with no place of business,
employees, bank accounts, advertisements, or manufacturing
facilities in North Carolina, but which had agreements with
other companies' distribution centers to distribute its
products in North Carolina was not subject to general
personal jurisdiction there. See Goodyear, 564 U.S.
at 929 ("[The defendant's] attenuated connections to
the State fall far short of the 'continuous and
systematic general business contacts' necessary to
empower North Carolina to entertain suit against [the
defendant] on claims unrelated to anything that connects [it]
to the State." (citations omitted)).
mention is made in the amended complaint regarding GE's
or the Dell Defendant's contacts with Alabama. Snow avers
in her response to GE's motion to dismiss that GE
conducts significant business within Alabama citing to and
attaching exhibits from GE's website. The articles show
that GE employs 450 full time manufacturing and professional
jobs in Alabama, its economic presence contributed to more
than $165 million in compensation in 2016, and it recently
made a $200 million investment to build a new GE Aviation
facility in Huntsville where it intends to employ 400 people.
But, as [the Supreme Court] observed in Daimler,
"the general jurisdiction inquiry does not focus solely
on the magnitude of the defendant's in-state
contacts." Id.,  134 S.Ct., at 762, n. 20
(internal quotation marks and alterations omitted). Rather,
the inquiry "calls for an appraisal of a
corporation's activities in their entirety";
"[a] corporation that operates in ...