United States District Court, W.D. Texas, San Antonio Division
PULLIAM UNITED STATES DISTRICT JUDGE
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
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.
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).
respect to this Court's jurisdiction over the action,
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
ECF No. 37 ¶¶ 7, 8. Defendants each contend that
Montelongo cannot establish sufficient contacts with Texas to
confer personal jurisdiction. ECF Nos. 41, 48.
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).
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.
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 ...