Thursday February 18, 2021
The Arizona District was recently fired Winters v Grand Caribbean Cruises, Inc.20-0168, 2021 WL 511217 (D. Ariz. February 11, 2021), for lack of personal jurisdiction, and found that plaintiffs had failed to demonstrate that the caller’s contact with Arizona could be attributed to Grand Caribbean.
Plaintiffs alleged that Grand Caribbean violated the TCPA by placing calls to numbers on the Do-Not-Call registry using a pre-recorded voice. Grand Caribbean was fired due to a lack of personal jurisdiction, among other things.
The court responded to the argument of Grand Caribbean’s personal jurisdiction by first stating that since Grand Caribbean is a Florida company, it does not come under the general court’s personal jurisdiction. The court then turned to whether it had specific jurisdiction over Grand Caribbean. Plaintiffs argued that Grand Caribbean had a special personal jurisdiction because Grand Caribbean had “direct contact” with Arizona residents or, alternatively, because the callers’ contacts with Arizona should be attributed to Grand Caribbean.
Grand Caribbean filed statements to support its argument that it should not be subject to jurisdiction based on the “direct contact” theory as it did not make or make phone calls to plaintiffs. The court agreed and turned to the question of whether personal jurisdiction could be assumed due to an agency relationship with the caller.
The court also agreed that the plaintiffs had failed to demonstrate the existence of so-called subordinate or vicarious jurisdiction. For one thing, the complaint failed to distinguish between Grand Caribbean and its agents, and they were identified as one entity throughout the complaint. More importantly, plaintiffs’ failure to add facts indicating that Grand Caribbean had the right to control, essentially, the means or nature of the caller’s activities, which is a “fundamental tenet of an agency relationship”. The court found that the fact that the callers identified themselves as representatives of the Great Caribbean was not material.
The court’s decision is in line with others who have dismissed TCPA claims based on insufficient allegations about the alleged alternate jurisdiction we have dealt with Here and Here. These decisions emphasize that the defendants at TCPA should continue to review a complaint for allegations of the judiciary and the agency and, if necessary, to identify deficiencies in the judiciary.
© 2020 Faegre Drinker Biddle & Reath LLP. All rights reserved.National Law Review, Volume XI, Number 49
