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Montelongo v. My Financial Solutions LLC

United States District Court, W.D. Texas, San Antonio Division

January 14, 2020




         This matter is before the Court upon Defendants Nick Caposio and Angela Mirabella's motions to dismiss to which Plaintiff responded and Defendants replied. ECF Nos. 41, 48, 50, 52, 53, 55. For the reasons set forth below, the Court denies the Defendants' motions.

         I. Background

         This case arises under the Telephone Consumer Protection Act (“TCPA”). 47 U.S.C. § 227. Plaintiff Maira Montelongo's (“Montelongo”) Amended Complaint, the operative pleading, alleges she received calls initiated by an automated telephone dialing system and telemarketing calls from individuals representing My Financial Solutions LLC and Student Renew LLC both before and after she informed caller Nick Caposio that she did not want to receive any more calls. ECF No. 37. Montelongo alleges the calls were designed to deceive Texas residents with student debt into paying for services the Department of Education offers free of charge. Id. Defendants Nick Caposio and Angela Mirabella move the court to dismiss Montelongo's Amended Complaint for lack of personal jurisdiction over each, individually. ECF Nos. 41, 48.

         II. Legal Standard

         The Texas Supreme Court has interpreted the Texas long-arm provisions as conferring personal jurisdiction over nonresidents whenever consistent with constitutional due process. Ham v. La Cienega Music Co., 4 F.3d 413, 415 (5th Cir. 1993); Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C, 815 S.W.2d 223, 226 (Tex. 1991). Accordingly, District Courts may exert personal jurisdiction over a defendant “if the defendant has ‘certain minimum contacts with [the State] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.”' Guidry v. United States Tobacco Co., 188 F.3d 619 (5th Cir. 1999) (quoting Intl Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). Where a non-resident defendant challenges personal jurisdiction, the plaintiff bears the burden of making a prima facie showing of jurisdiction; the plaintiff need not establish jurisdiction by a preponderance of the evidence. Luv N' Care, Ltd. v. Insta-Mix, Inc., 438 F.3d 465, 469 (5th Cir. 2006). Once the plaintiff makes a prima facie showing of personal jurisdiction, the burden shifts to the defendant to demonstrate that exercising jurisdiction over the defendant would be so unfair and unreasonable as to violate due process. Bullion v. Gillespie, 895 F.2d 213, 216 (5th Cir. 1990). “When considering the motion to dismiss, allegations in a plaintiffs complaint are taken as true except to the extent that they are contradicted by defendant's affidavits [and] any genuine, material conflicts between the facts established by the parties' affidavits and other evidence are resolved in favor of plaintiff for the purposes of determining whether a prima facie case exists.” Cunningham v. Prof'l Educ. Inst, Inc., No. 4:17-CV-00894-ALM-CAN, 2018 WL 6709515, at *4 (E.D. Tex. Nov. 5, 2018) adopted by Cunningham v. Prof'l Educ. Inst, No. 4:17-CV-894, 2018 WL 6701277 (E.D. Tex. Dec. 20, 2018) (citations, quotations, and brackets omitted).

         III. Discussion

         With respect to this Court's jurisdiction over the action, Montelongo avers:

the Court has general and specific jurisdiction over the Defendants because they have repeatedly placed calls to Texas residents, derive revenue from Texas residents, sells goods and services to Texas residents, including the Plaintiff and committed a tort in Texas by violating the TCPA. This Court has specific personal jurisdiction over the Defendants because the calls at issue were made by or on behalf of the defendants into this district, and the Plaintiff resides in this district.

ECF No. 37 ¶¶ 7, 8. Defendants each contend that Montelongo cannot establish sufficient contacts with Texas to confer personal jurisdiction. ECF Nos. 41, 48.

         General jurisdiction may be found when the defendant's contacts with the forum state are substantial, continuous, and systematic. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-19 (1984). The “continuous and systematic contacts test is a difficult one to meet, requiring extensive contacts between a defendant and a forum.” Johnston v. Multidata Sys. Int'l Corp., 523 F.3d 602, 609 (5th Cir. 2008). To confer general jurisdiction, a defendant must have a business presence in the forum state. Access Telecom, Inc. v. MCI Telecomm. Corp., 197 F.3d 694, 717 (5th Cir. 1999). Injecting a product, even in substantial volume, into a forum's “stream of commerce, ” without more, does not support general jurisdiction. Bearry v. Beech Aircraft Corp., 818 F.2d 370, 375 (5th Cir. 1987).

         Specific jurisdiction exists when “the defendant has ‘purposefully directed' his activities at residents of the forum . . . and the litigation results from alleged injuries that arise out of or relate to those activities.” See Burger King v. Rudzewicz, 471 U.S. 462, 472 (1985) (citations omitted); Jones v. Petty-Ray Geophysical Geosource, Inc., 954 F.2d 1061, 1068 n.9 (5th Cir. 1992). The Fifth Circuit has articulated a three-step analysis for determining whether a court has specific jurisdiction over a defendant: “(1) whether the defendant has minimum contacts with the forum state, i.e., whether it purposely directed its activities toward the forum state or purposefully availed itself of the privileges of conducting activities there; (2) whether the plaintiffs cause of action arises out of or results from the defendant's forum-related contacts; and (3) whether the exercise of personal jurisdiction is fair and reasonable.” McFadin v. Gerber, 587 F.3d 753, 759 (5th Cir. 2009). The non-resident's purposefully directed activities in the forum must be such that he could reasonably anticipate being haled into court in the forum state. Burger King, 471 U.S. at 474.

         A. Nick Caposio

         This Court does not have general jurisdiction over Defendant Nick Caposio (“Caposio”) because Caposio does not have continuous and systematic personal contacts with Texas. See Helicopteros, 466 U.S. at 414-15. Caposio is a California resident who has never traveled to Texas or personally conducted business in Texas. ECF No. 48 at 4-5. Because Caposio has no ...

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