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Turizo v. Jiffy Lube International, Inc.

United States District Court, S.D. Florida

September 24, 2019

BLAKE TURIZO, Plaintiff,



         THIS CAUSE is before the Court upon Motions to Dismiss filed by Defendants Atlantic Coast Enterprise, LLC (“Ace”), ECF No. [20], and Jiffy Lube International, Inc. (“Jiffy Lube”), ECF No. [21]. 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.

         I. BACKGROUND

         This 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. [16]. 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.


         A. Failure to state a claim

         Rule 8 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.

         When 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)).

         B. Personal jurisdiction

         “In 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 855).

         Adhering to these standards, the Court considers the Motions.


         Plaintiff 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.

         A. Ace’s ...

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