United States District Court, M.D. Florida
ORDER DENYING DEFENDANT’S MOTION TO DISMISS;
AND GRANTING DEFENDANT’S MOTION TO TRANSFER DOCKET NO.
M. CHEN UNITED STATES DISTRICT JUDGE
Brian Schlesinger has filed suit against Defendant Joshua
Collins, doing business as xpresscapitalgroup.com,
asserting a violation of the federal Telephone Consumer
Protection Act (“TCPA”), see 47 U.S.C.
§ 227(b)(1)(A)(iii), and similar California law.
See Cal. Civ. Code § 1770(a)(22)(A). According
to Mr. Schlesinger, Mr. Collins violated these statutes
because he, or another person acting on his behalf, called
Mr. Schlesinger using an artificial or prerecorded voice
without Mr. Schlesinger’s prior express consent. Mr.
Schlesinger seeks relief not only for himself but also for a
nationwide class (for the TCPA claim) and a California class
(for the California claim). Currently pending before the
Court is Mr. Collins’s motion to dismiss or, in the
alternative, transfer. Having considered the papers
submitted, the Court deems the matter suitable for
disposition without oral argument. The motion to dismiss is
DENIED but the motion to transfer –
specifically, to the Middle District of Florida where Mr.
Collins resides, see Compl. ¶ 10; Collins Decl.
¶ 1 – is GRANTED.
to Mr. Collins, the instant case against him must be
dismissed for lack of personal jurisdiction. See
Fed. R. Civ. P. 12(b)(2) (providing that a defendant may file
a motion to dismiss based on lack of personal jurisdiction).
Where, as here, there is no applicable federal statute
governing personal jurisdiction, the district court applies
the law of the state in which the district court sits.
Because California's long-arm jurisdictional statute is
coextensive with federal due process requirements, the
jurisdictional analyses under state law and federal due
process are the same. For a court to exercise personal
jurisdiction over a nonresident defendant, that defendant
must have at least "minimum contacts" with the
relevant forum such that the exercise of jurisdiction
"does not offend traditional notions of fair play and
Schwarzenegger v. Fred Martin Motor Co., 374 F.3d
797, 800-01 (9th Cir. 2004).
plaintiff bears the burden of establishing personal
jurisdiction. See Id . at 800. Where a “motion
is based on written materials rather than an evidentiary
hearing, ‘the plaintiff need only make a prima facie
showing of jurisdictional facts.’” Id.
“Although the plaintiff cannot ‘simply rest on
the bare allegations of its complaint, ’ uncontroverted
allegations in the complaint must be taken as true”; in
addition, “[c]onflicts between parties over statements
contained in affidavits must be resolved in the
plaintiff’s favor.” Id.
support of his claim that there is no personal jurisdiction,
Mr. Collins has submitted a declaration. The bulk of that
declaration is directed to his assertion that this Court
lacks general jurisdiction over him. See Id . at 801
(stating that, “[f]or general jurisdiction to exist
over a nonresident defendant . . ., the defendant must engage
in ‘continuous and systematic general business
contacts’ that ‘approximate physical
presence’ in the forum state” – “an
exacting standard . . . because a finding of general
jurisdiction permits a defendant to be haled into court in
the forum state to answer for any of its activities anywhere
in the world”); Collins Decl. ¶¶ 2-13.
response, Mr. Schlesinger does not make any claim that this
Court has general jurisdiction over Mr. Collins. Rather, Mr.
Schlesinger argues only that there is specific jurisdiction.
Ninth Circuit has a three-prong test for analyzing a claim of
specific personal jurisdiction:
(1) The non-resident defendant must purposefully direct his
activities or consummate some transaction with the forum or
resident thereof; or perform some act by which he
purposefully avails himself of the privilege of conducting
activities in the forum, thereby invoking the benefits and
protections of its laws;
(2) the claim must be one which arises out of or relates to
the defendant's forum-related activities; and
(3) the exercise of jurisdiction must comport with fair play
and substantial justice, i.e. ...