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Hicks v. Health Insurance Innovations, Inc.

United States District Court, D. New Jersey

December 20, 2017

AMANDRA HICKS, on behalf of themselves and others similarly situated, Plaintiffs,



         This matter comes before the Court on a motion by defendant to dismiss for lack of personal jurisdiction and for improper venue. ECF No. 9. Plaintiff opposes the motion. ECF No. 12. United States District Judge Susan D. Wigenton referred this motion to the undersigned for a Report and Recommendation. Having considered the parties' submissions, oral argument before the Court, and for good cause shown, the Court recommends that defendant's motion be GRANTED.

         I. BACKGROUND

         This is a putative class action alleging defendant violated the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. ("TCPA") by negligently, knowingly, and/or willingly placing automated and prerecorded calls to plaintiffs cell phone. Complaint ("Compl."), ECF No. 1 ¶ 1. Plaintiff alleges defendant repeatedly placed automated calls to her cell phone using an automated telephone dialing system ("ATDS"), which is prohibited by the TCPA. Id. ¶¶ 15-16. Plaintiffs cell phone has an "856" area code, which is the area code assigned to portions of southwestern New Jersey. Id. ¶¶ 16-17. She alleges that the area code from which defendant placed the automated call was "201, " affiliated with northeastern New Jersey. Id. ¶ 18.[1]

         Defendant is a medical insurance sales corporation incorporated in Delaware with its principal place of business in Florida. Id. ¶¶ 2, 11. Dan Garavuso, Vice President of defendant Health Insurance Innovations, Inc. submitted a declaration stating that defendant does not maintain any offices in New Jersey and has no physical infrastructure or ability to initiate any telephone calls from the state of New Jersey. ECF No. 9-3. Plaintiff has not meaningfully disputed that the phone calls were not placed from within the state of New Jersey.[2]

         Plaintiff is a resident of Florida, and at all times relevant to the instant matter was an individual residing in Pensacola, Florida. Compl. ¶ 10. Plaintiff, therefore, received the phone calls at issue in the state of Florida.

         Plaintiff states she spoke with a representative of defendant on April 17, 2017, who advised plaintiff she would be placed on a do-not-call list, and yet plaintiff has since received more than a dozen phone calls from defendant. Id. ¶¶ 21-23. The phone calls appear to be an attempt to reach another individual named Ocie Cosby, as defendant left a voice message on plaintiffs cell phone stating that the call was intended for "Ocie Cosby regarding a monthly payment." Id. ¶¶ 19, 30.

         Plaintiff filed this putative class action on May 11, 2017. See ECF No. 1. On July 20, 2017, defendant filed the instant motion to dismiss for lack of jurisdiction and improper venue. ECF No. 9. This Court heard oral argument on November 27, 2017, and reserved decision on this motion.


         Defendant moves to dismiss on the ground that this Court lacks personal jurisdiction over the corporation. While plaintiff does not assert a theory of general jurisdiction, plaintiff argues this Court has specific personal jurisdiction over defendant. See ECF No. 12, at 4 n.4. For the reasons set forth below, the Court recommends the District Court find that plaintiff has not met her burden to show the existence of personal jurisdiction over defendant.


         Once a defendant contends personal jurisdiction over it is absent in the forum, plaintiff bears the burden to show by a preponderance of the evidence that personal jurisdiction exists. D'Jamoos v. Pilatus Aircraft Ltd., 566 F.3d 94, 102 (3d Cir. 2009). A federal court must conduct a two-step analysis to determine whether personal jurisdiction exists: first, whether the forum state's long arm statute permits jurisdiction and second, whether the exercise of personal jurisdiction over the defendant comports with due process. MO Indus., Inc. v. Kiekert AG, 155 F.3d 254, 259 (3d Cir. 1998). New Jersey's long-arm statute permits exercising jurisdiction over non-residents "to the uttermost limits permitted by the United States Constitution." Charles Gendler Co. v. Telecom Equity Corp., 102 N.J. 460, 469 (1986) (quoting Avdel Corp. v. Mecure, 58 N.J. 264, 268 (1971)). Therefore, "we ask whether, under the Due Process Clause, the defendant has certain minimum contacts with [New Jersey] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." O 'Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 316 (3d Cir. 2007) (internal quotation marks omitted).

         Personal jurisdiction may be based on either general or specific jurisdiction. Bristol-Myers Squibb Co. v. Super. Ct. of Cal, 137 S.Ct. 1773, 1780 (2017). General jurisdiction over a defendant exists in the forum of an individual's domicile and the forum "in which [a] corporation is fairly regarded as at home." Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 924 (2011). "A court with general jurisdiction may hear any claim against that defendant.. . ." Bristol-Myers, 137 S.Ct. at 1780.[3]

         Specific personal jurisdiction, on the other hand, "aris[es] out of or relate[s] to the defendant's contacts with the forum, " Daimler AG v. Bauman,134 S.Ct. 746, 754 (2014) (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall,466 U.S. 408, 414, n.8 (1984)). The Third Circuit has laid out a three-part test to determine whether specific jurisdiction exists: (1) the defendant must have "purposefully directed [its] activities at the forum"; (2) the litigation must "arise out of or relate to at least one of those activities"; and (3) if the first two requirements are met, the ...

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