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Cunningham v. Capital Advance Solutions, LLC

United States District Court, D. New Jersey

November 20, 2018




         This matter comes before the Court on three separate motions to dismiss filed by (1) Capital Advance Solutions, LLC (“Capital”), Geoffrey Horn (“Horn”), Charles Betta (“Betta”), and Dan Logan (“Logan”); (2) WebBank Corporation (“WebBank”) and Retail Capital, LLC (“Credibly”); and (3) EBF Partners, LLC (“EBF”).[1] Specifically, these defendants seek dismissal on various grounds of Plaintiff Craig Cunningham's (“Plaintiff”) Amended Complaint, wherein he alleges that Capital, at the direction of the Individual Defendants, violated the Telephone Consumer Protection Act (“TCPA”) by contacting Plaintiff's cellular phone through the use of an automated telephone dialing system, on behalf of the Bank Defendants. For the reasons set forth below, the motion to dismiss filed by Capital and the Individual Defendants is DENIED as to Capital and GRANTED as to the Individual Defendants, and WebBank and Credibly's motion to dismiss is DENIED; however, EBF's motion to dismiss is GRANTED.


         The following factual allegations are taken from Plaintiff's Amended Complaint and are accepted as true for the purposes of this motion to dismiss. Plaintiff, a Tennessee resident, proceeding pro se, asserts violations of the TCPA against Capital, a New Jersey corporation, and the entities on behalf of which Capital allegedly conducted telemarketing activities.[2]Specifically, these include EBF, WebBank, and Credibly, all of which are in the business of providing “loan products.” Amended Complaint (“Am. Comp.”), ¶¶ 2-7, 11. Plaintiff also names Horn, Betta, and Logan as defendants in their individual capacities, all of whom are employed at Capital as corporate officials.[3] Id., ¶¶ 3-5.

         In 2015, Plaintiff alleges that he received multiple telephone calls on his cellular phone from Capital, placed through an automated telephone dialing system, at the direction of the Individual Defendants. Id., ¶¶ 16-17. Upon answering, Plaintiff was presented with the following prerecorded message: “[s]top and listen. Do you need immediate cash? Need additional working capital? No. collateral? No. fixed payments? Bad Credit? No. problem. Press 1 to be connected. Press 2 if you are not interested.” Id., ¶ 18. Plaintiff claims that he subsequently posed as an interested customer and applied for a loan through Capital after answering “a few qualifying questions, ” for the sole purpose of identifying the “end users or sellers” on behalf of which Capital was calling Plaintiff. Id., ¶¶ 18, 21-22. Thereafter, Capital allegedly submitted Plaintiff's information to various loan providers, including EBF, WebBank, and Credibly. Id., ¶ 17.

         In a letter dated March 1, 2016, Credibly and WebBank denied Plaintiff's loan request. Id., ¶ 22. Moreover, the letter from Credibly and WebBank was written on “Credibly, LLC letterhead, ” and contained the following language: “[t]hank you for applying to us for credit through Capital Advance Solutions.” Id. EBF, on the other hand, approved Plaintiff's loan request, and provided Plaintiff with an eighteen-page contract extending a loan in the amount of $30, 000. Id., ¶ 23. The contract additionally “included an application from Capital Advance Solutions at the very end indicating that Capital Advance Solutions was the broker that sent the loan to EBF Partners, LLC.” Id.

         On December 13, 2017, Plaintiff initiated the instant action. Thereafter, Plaintiff filed an Amended Complaint, asserting three counts. Specifically, in Count I and Count II, Plaintiff alleges that Defendants' “unsolicited and unwelcome telephone calls” were in violation of §§ 227(c)(5) and (b) of the TCPA, respectively, because Defendants failed to implement a written policy regarding telemarketing, failed to maintain a do-not-call list, and failed to have trained personnel to engage in telemarketing. Id., ¶¶, 49-52. Additionally, in Count III, Plaintiff asserts a claim for invasion of privacy-intrusion on seclusion, alleging that Defendants' actions “constitute multiple intrusions upon the seclusion of the Plaintiff.” Id., ¶¶ 53-54.

         In the instant matter, Defendants move to dismiss Plaintiff's Complaint pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6). In that connection, Capital moves for dismissal on the basis that the TCPA provisions upon which Plaintiff relies are inapplicable to the instant dispute, because Plaintiff has failed to sufficiently allege that the primary use of his cellular phone is for non-business purposes. Moreover, WebBank and Capital separately move for dismissal, arguing that Plaintiff failed to allege that either entity contacted Plaintiff, and neither entity can be held vicariously liable for Capital's alleged TCPA violations pursuant to an agency relationship. Finally, EBF joins in WebBank and Capital's arguments as to vicarious liability, while EBF separately contends that it is not subject to this Court's personal jurisdiction. Plaintiff opposes Defendants' Motions.


         A. Standard of Review

         “A district court sitting in diversity may assert personal jurisdiction over a nonresident defendant to the extent allowed under the law of the forum state.” Metcalfe v. Renaissance Marine, Inc., 566 F.3d 324, 330 (3d Cir. 2009); see Fed. R. Civ. P. 4(e). Therefore, in resolving a motion to dismiss pursuant to 12(b)(2) for lack of personal jurisdiction, the Court's analysis is twofold: “[t]he court must first determine whether the relevant state long-arm statute permits the exercise of jurisdiction; if so, the court must then satisfy itself that the exercise of jurisdiction comports with due process.” Display Works, 182 F.Supp.3d 166, 172 (D.N.J. 2016) (citing IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254, 258-59 (3d Cir. 1998)). “Since New Jersey's long-arm statute allows ‘the exercise of personal jurisdiction to the fullest limits of due process; [the Court must] ‘look to federal law for the interpretation of the limits on in personam jurisdiction.'” Malik v. Cabot Oil & Gas Corp., 710 Fed.Appx. 561, 563 (3d Cir. 2017) (quoting IMO Indus., Inc., 155 F.3d at 259).

         “The Due Process Clause of the Fourteenth Amendment sets the outer boundaries of a state tribunal's authority to proceed against a defendant.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 923 (2011). In Int'l Shoe Co. v. State of Wash., Office of Unemployment Comp. & Placement, 326 U.S. 310 (1945), the Supreme Court held that a state may authorize its courts to exercise personal jurisdiction over a nonresident defendant if that 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.'” Id. at 316 (citation omitted). “Following International Shoe, ‘the relationship among the defendant, the forum, and the litigation . . . became the central concern of the inquiry into personal jurisdiction.'” Daimler AG v. Bauman, 571 U.S. 117, 126 (2014) (quoting Shaffer v. Heitner, 433 U.S. 186, 204 (1977)).

         Moreover, in resolving a motion to dismiss under Rule 12(b)(6), “'courts accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.'” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)); see also Zimmerman v. Corbett, 873 F.3d 414, 417-18 (3d Cir. 2017); Revell v. Port Auth. of N.Y. & N.J., 598 F.3d 128, 134 (3d Cir. 2010). In other words, a complaint survives a motion to dismiss if it contains sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Fair Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d Cir. 2014). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). In addition to the allegations of the complaint, a court may consider matters of public record, documents specifically referenced in or attached to the complaint, and documents integral to the allegations raised in the complaint. Mele v. Fed. Reserve Bank of N.Y., 359 F.3d 251, 255 n.5 (3d Cir. 2004).

         B. Analysis

         1. The TCPA

         The TCPA was passed by Congress to protect consumers from receiving “intrusive and unwanted calls.” Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 268 (3d Cir. 2013) (citing Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368 (2012)). In doing so, “[C]ongress determined that federal legislation was needed because telemarketers, by operating interstate, were escaping state-law prohibitions on intrusive nuisance calls.” Mims, 565 U.S. at 371. In particular, pursuant to 47 U.S.C. § 227 (b)(1)(B), the TPCA restricts the use of any automated telephone equipment that uses artificial or prerecorded voice to deliver a message to any “residential telephone line[.]” Under the statute, an automated telephone dialing system is defined as equipment that ...

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