United States District Court, N.D. Alabama, Northeastern Division
ERIC K. WILLIAMS, and all those similarly situated, Plaintiffs,
JOHN G. SCHANCK, Defendant.
MEMORANDUM OPINION AND ORDER
MADELINE HUGHES HAIKALA, UNITED STATES DISTRICT JUDGE.
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).
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.
STANDARDS OF REVIEW
Rule 12(b)(2) Standard
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.
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.
Rule 12(b)(6) Standard
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).
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.
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).
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).
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, ...