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Snow v. General Electric Co.

United States District Court, N.D. Alabama, Western Division

August 3, 2018

MARIAN SNOW Plaintiff,


          L. Scott Coogler United States District Judge

         Plaintiff 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").[1] 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.

         I. Background[2]

         On 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[3] 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 ""; 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.

         II. Standard of Review

         In a 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." Id.

         III. Discussion

         a. Personal Jurisdiction[4]

         The Dell defendants and GE-all non-Alabama corporations[5]-seek dismissal of the claims against them averring that the Court does not possess personal jurisdiction over them.[6] Where, as here, jurisdiction is predicated upon a federal question[7] 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, [8] so the Court looks to Alabama's long-arm statute in deciding whether personal jurisdiction is present.

         Personal 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 1319.

         "[D]ue 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.

         1) General Jurisdiction

         In 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)).

         No 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 ...

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