United States District Court, S.D. Florida
OMNIBUS ORDER ON MOTIONS TO DISMISS
BLOOM UNITED STATES DISTRICT JUDGE
CAUSE is before the Court upon Motions to Dismiss
filed by Defendants Atlantic Coast Enterprise, LLC
(“Ace”), ECF No. , and Jiffy Lube
International, Inc. (“Jiffy Lube”), ECF No. .
The Court has carefully considered the Motions, all opposing
and supporting submissions, the record in this case and the
applicable law, and is otherwise fully advised. For the
reasons that follow, Ace’s Motion is granted in part,
and Jiffy Lube’s Motion is granted.
case arises as a result of unwanted text messages. Plaintiff
Blake Turizo (“Plaintiff” or
“Turizo”) initiated this purported class action
alleging that Ace, at the direction of Jiffy Lube, sent at
least one text message to his cellular telephone using an
automatic telephone dialing system (“ATDS”) and
without his consent. See First Amended Complaint,
ECF No. . As such, Turizo asserts one count against Ace
and Jiffy Lube for violation of the Telephone Consumer
Protection Act, 47 U.S.C. § 227 (“TCPA”).
Ace seeks dismissal of the First Amended Complaint for
failure to state a claim. Jiffy Lube argues that the Court
lacks personal jurisdiction.
Failure to state a claim
of the Federal Rules requires that a pleading contain
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). Although a complaint “does not need detailed
factual allegations, ” it must provide “more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining
that Rule 8(a)(2)’s pleading standard “demands
more than an unadorned, the-defendant-unlawfully-harmed-me
accusation”). In the same vein, a complaint may not
rest on “‘naked assertion[s]’ devoid of
‘further factual enhancement.’”
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 557 (alteration in original)). “Factual
allegations must be enough to raise a right to relief above
the speculative level.” Twombly, 550 U.S. at
555. These elements are required to survive a motion brought
under Rule 12(b)(6) of the Federal Rules of Civil Procedure,
which requests dismissal for failure to state a claim upon
which relief can be granted.
reviewing a motion under Rule 12(b)(6), a court, as a general
rule, must accept the plaintiff’s allegations as true
and evaluate all plausible inferences derived from those
facts in favor of the plaintiff. Miccosukee Tribe of
Indians of Fla. v. S. Everglades Restoration Alliance,
304 F.3d 1076, 1084 (11th Cir. 2002); AXA Equitable Life
Ins. Co. v. Infinity Fin. Grp., LLC, 608 F.Supp.2d 1349,
1353 (S.D. Fla. 2009). However, this tenet does not apply to
legal conclusions, and courts “are not bound to accept
as true a legal conclusion couched as a factual
allegation.” Twombly, 550 U.S. at 555; see
Iqbal, 556 U.S. at 678; Thaeter v. Palm Beach Cty.
Sheriff’s Office, 449 F.3d 1342, 1352 (11th Cir.
2006). Moreover, “courts may infer from the factual
allegations in the complaint ‘obvious alternative
explanations, ’ which suggest lawful conduct rather
than the unlawful conduct the plaintiff would ask the court
to infer.” Am. Dental Ass’n v. Cigna
Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting
Iqbal, 556 U.S. at 682). A court considering a Rule
12(b) motion is generally limited to the facts contained in
the complaint and attached exhibits, including documents
referred to in the complaint that are central to the claim.
Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959
(11th Cir. 2009); see also Maxcess, Inc. v. Lucent
Techs., Inc., 433 F.3d 1337, 1340 (11th Cir. 2005)
(“[A] document outside the four corners of the
complaint may still be considered if it is central to the
plaintiff's claims and is undisputed in terms of
authenticity.”) (citing Horsley v. Feldt, 304
F.3d 1125, 1135 (11th Cir. 2002)).
a motion to dismiss for lack of personal jurisdiction, a
court must accept the facts alleged in plaintiff’s
complaint as true, to the extent that they are not
contradicted by defendant’s affidavits.” Kim
v. Keenan, 71 F.Supp.2d 1228, 1231 (M.D. Fla. 1999)
(citing Cable/Home Commc'n Corp. v. Network Prods.,
Inc., 902 F.2d 829, 855 (11th Cir. 1990)). “A
plaintiff seeking the exercise of personal jurisdiction over
a nonresident defendant bears the initial burden of alleging
in the complaint sufficient facts to make out a prima facie
case of jurisdiction.” United Techs. Corp. v.
Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009). “Once
the plaintiff pleads sufficient material facts to form a
basis for in personam jurisdiction, the burden
shifts to the defendant to challenge plaintiff’s
allegations by affidavits or other pleadings.”
Carmouche v. Carnival Corp., 36 F.Supp.3d 1335, 1388
(S.D. Fla. 2014), aff’d, sub nom,
Carmouche v. Tamborlee Mgmt., Inc., 789 F.3d 1201
(11th Cir. 2015). A defendant challenging personal
jurisdiction must present evidence to counter the
plaintiff’s allegations. Internet Sols. Corp. v.
Marshall, 557 F.3d 1293, 1295 (11th Cir. 2009).
“If the defendant provides sufficient evidence,
‘the burden shifts to the plaintiff to prove
jurisdiction by affidavits, testimony or
documents.’” MPS Entm’t, LLC v.
Headrush Apparel, Inc., No. 12-Civ-23364, 2013 WL
5446543, at *2 (S.D. Fla. Sept. 30, 2013) (quoting Thomas
v. Brown, 504 F. App’x 845, 847 (11th Cir. 2013));
see also Internet Sols. Corp., 557 F.3d at 1295
(same); Exist, Inc. v. Woodland Trading, Inc., No.
14-61354-CIV, 2015 WL 881407, at *1 (S.D. Fla. Mar. 2, 2015)
(citing Cable/Home Commc’n Corp., 902 F.2d at
to these standards, the Court considers the Motions.
asserts his claim under a provision of the TCPA that
prohibits the use of an ATDS to call a cellular telephone
without the recipient’s consent. The TCPA provides in
pertinent part that “[i]t shall be unlawful for any
person within the United States . . . to make any call . . .
(other than a call . . . made with the prior express consent
of the called party) . . . using any [ATDS] . . . to any
telephone number assigned to a . . . cellular telephone
service . . . . 47 U.S.C. § 227(b)(1)(A)(iii). A text
message to a cellular telephone qualifies as a
“call” within the meaning of the TCPA. Thomas
v. Peterson’s Harley Davidson of Miami, L.L.C.,
363 F.Supp.3d 1368, 1371 (S.D. Fla. 2018) (citing Gager
v. Dell Fin. Servs., LLC, 727 F.3d 265, 269 n.2 (3d Cir.
2013)). Thus, Plaintiff alleges that Defendants violated the
TCPA when they sent him text messages without his consent.