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Williams v. Schanck

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

September 6, 2019

ERIC K. WILLIAMS, and all those similarly situated, Plaintiffs,
v.
JOHN G. SCHANCK, Defendant.

          MEMORANDUM OPINION AND ORDER

          MADELINE HUGHES HAIKALA, UNITED STATES DISTRICT JUDGE.

         This case is before the Court on a motion to dismiss. Plaintiff Eric K. Williams initially sued Stellar Recovery, Inc., seeking damages under the Telephone Consumer Protection Act and Alabama law. (Doc. 1, p. 5). During a telephone conference in this matter, Stellar's founder and owner, John G. Schanck, indicated that Stellar Recovery had dissolved and did not intend to participate in this lawsuit. (Doc. 46). The Court permitted Mr. Williams to amend his complaint to add Mr. Schanck as a defendant. (Docs. 49-1, 50). In his amended complaint, Mr. Williams contends that Stellar acted “on behalf of Defendant Schanck” and that Mr. Schanck is liable under the TCPA and Alabama law. (Doc. 49-1).

         Pursuant to Rules 12(b)(2) and 12(b)(6) of the Federal Rules of Civil Procedure, Mr. Schanck asks the Court to dismiss the claims against him. (Doc. 60). For the reasons discussed below, the Court grants in part and denies in part Mr. Schanck's motion to dismiss.

         I. STANDARDS OF REVIEW

         A. Rule 12(b)(2) Standard

         The United States Constitution limits the extent to which a district court may exercise jurisdiction over a non-resident defendant. Under Rule 12(b)(2) of the Federal Rules of Civil Procedure, a defendant may assert lack of personal jurisdiction as a defense to a claim and may ask a court to dismiss the claim against him on that basis. Fed.R.Civ.P. 12(b)(2).

         A plaintiff who sues a non-resident defendant “‘bears the initial burden of alleging in the complaint sufficient facts to make out a prima facie case of [personal] jurisdiction.'” Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1350 (11th Cir. 2013) (quoting United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009)). A district court must accept as true the jurisdictional allegations in the plaintiff's complaint, unless “a defendant challenges personal jurisdiction ‘by submitting affidavit evidence in support of its position.'” Louis Vuitton Malletier, S.A., 736 F.3d at 1350 (quoting Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990) (internal quotation marks omitted)). If that happens, then the burden shifts back to the plaintiff to provide evidence supporting the district court's exercise of jurisdiction over the defendant “unless the defendant's affidavits contain only conclusory assertions that the defendant is not subject to jurisdiction.” Stubbs v. Wyndham Nassau Resort & Crystal Palace Casino, 447 F.3d 1357, 1360 (11th Cir. 2006). When the parties present conflicting evidence, a district court “must construe all reasonable inferences in favor of the plaintiff.” Stubbs, 447 F.3d at 1360.

         B. Rule 12(b)(6) Standard

         Rule 12(b)(6) enables a defendant to move to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6) motion to dismiss tests the sufficiency of a complaint against the “liberal pleading standards set forth by Rule 8(a)(2).” Erickson v. Pardus, 551 U.S. 89, 94 (2007). Pursuant to Rule 8(a)(2), a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “Generally, to survive a [Rule 12(b)(6)] motion to dismiss and meet the requirement of Fed.R.Civ.P. 8(a)(2), a complaint need not contain ‘detailed factual allegations,' but rather ‘only enough facts to state a claim to relief that is plausible on its face.'” Maledy v. City of Enterprise, No. 1:10-cv-254, 2012 WL 1028176, at *1 (M.D. Ala. Mar. 26, 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)). “Specific facts are not necessary; the statement needs only ‘give the defendant fair notice of what the … claim is and the grounds upon which it rests.'” Erickson, 551 U.S. at 93 (quoting Twombly, 550 U.S. at 555).

         “Thus, the pleading standard set forth in Federal Rule of Civil Procedure 8 evaluates the plausibility of the facts alleged, and the notice stemming from a complaint's allegations.” Keene v. Prine, 477 Fed.Appx. 575, 583 (11th Cir. 2012). “Where those two requirements are met… the form of the complaint is not significant if it alleges facts upon which relief can be granted, even if it fails to categorize correctly the legal theory giving rise to the claim.” Keene, 477 Fed.Appx. at 583.

         II. PROCEDURAL HISTORY

         Mr. Williams initiated this suit against Stellar Recovery, Inc. (Doc. 1). Mr. Williams asserts that he is a resident of Madison County, Alabama and that “a substantial portion of the facts and circumstances that give rise to the cause of action occurred in this District.” (Doc. 49-1, ¶¶ 1, 5). Mr. Williams alleges that he received predictive, pre-recorded, and auto-dialer collection calls on his cell phone from Stellar. (Doc. 1, pp. 5-11; Doc. 49-1, ¶¶ 9, 21-23, 28-30). Mr. Williams asserts that he did not provide his cell number to Dish Network, the company for which Stellar made collection calls, nor did he give Dish or Stellar express consent to call his cell number. (Doc. 49-1, ¶¶ 10-13, 36-37). Mr. Williams adds that he instructed Stellar not to call his cell number using an auto-dialer. (Doc. 49-1, ¶ 32). Stellar answered Mr. Williams's complaint and admitted that “it does business in Alabama.” (Doc. 8, p. 1, ¶ 2). In its affirmative defenses, Stellar did not challenge personal jurisdiction. (Doc. 8, pp. 11-12).

         After Mr. Schanck dissolved Stellar, Mr. Schanck informed the Court that Stellar would not participate in this litigation. (Doc. 46; see also Doc. 60, p. 2 (“By [June 2018] Stellar had ceased operations, terminated all its employees, closed its offices, and formally dissolved with the State of Florida Department of Corporations.”); Doc. 62, pp. 1-2). Mr. Williams asked the Court for leave to amend his complaint to add Mr. Schanck as a defendant. (Doc. 49). The Court granted Mr. Williams's motion. (Doc. 50).

         Mr. Williams alleges that Mr. Schanck was the founder and sole owner of Stellar Recovery, Inc. (Doc. 49-1, ¶ 3). Mr. Williams asserts that Mr. Schanck “guide[d], overs[aw], and ratifie[d] all operational decisions of Defendant Stellar.” (Doc. 49-1, ¶ 18). Throughout his complaint, Mr. Williams contends that Stellar acted “on behalf of Defendant Schanck.” (Doc. 49-1, ¶¶ 34-35, 38-42, 44-45, 48, 51-54). Mr. Williams asserts that Mr. Schanck is liable for violations of the TCPA (Count I and Count IV); negligent, reckless, wanton, ...


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