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Jessop v. Penn National Gaming, Inc.

United States District Court, M.D. Florida, Orlando Division

October 28, 2019

MAT JESSOP, Plaintiff,


          Roy B. Dalton Jr. United States District Judge.

         Defendant Penn National Gaming, Inc. (“Penn National”) moves to dismiss Count I of Plaintiff Mat Jessop's Third Amended Complaint (Doc. 80 (“Complaint”)). (Doc. 87 (“Motion”).) Plaintiff responds. (Doc. 92) On review, the Court grants the Motion, dismissing Count I with prejudice.

         I. Background

         On June 24, 2017, Plaintiff Mat Jessop entered the Sanford Orlando Kennel Club (“Sanford Club”), a gaming establishment, and used his credit card. (Doc. 80, ¶ 59.) Upon completion of the transaction in this den of identity thieves, Plaintiff was presented a receipt bearing both the first four and the last four digits of his credit card-more digits than the Fair Credit Reporting Act, 15 U.S.C. § 1681c(g) (“FACTA”), allows.[1] (Doc. 80, ¶ 60; see also Id. ¶¶ 34-41.) For this privilege, Plaintiff was charged a hefty fee. (Id. ¶ 61.)

         Penn National avers, and Plaintiff does not dispute, Sanford Club is owned by subsidiaries of Penn National (“Owners of the Sanford Club”). (Doc. 87, ¶ 14; see also Doc. 80, ¶¶ 13-15.) Also undisputed, Defendant Everi Payments, Inc. (“Everi”) provides products and services such as ATM cash withdrawals and debit card and credit card cash access transaction services (collectively “cash access services”) to the Sanford Club. (Doc. 80, ¶ 17; Doc. 87, ¶ 20.) But critical facts are missing from the Complaint. Where did this FACTA-violative receipt come from? In Count I of the Complaint, Plaintiff says it was “ presented by Defendants” with out explaining which Defendants or how . (Doc . 8 0, ¶ 6 0 .) Did Plaintiff use an ATM to withdraw cash or was the transaction with Sanford Club employees? Plaintiff alleges the receipt was printed by a “machine, ” that was “designed, programmed, maintained and operated by Everi, ” but the Complaint is silent on what kind of machine (e.g. ATM or a credit card reader), who owns the machine, and if employees were involved in the transaction. (See Id. ¶ 63.) Plaintiff variously claims it was Penn National, or Everi, or employees of the Sanford Club who are responsible for the provision of these services. (See Id. ¶¶ 20-23.) It is unclear why, if Everi provided the receipt, Plaintiff only charged Penn National with a FACTA violation. (See Doc. 80.)

         Despite brief facts, the procedural history is long and exhausting. Plaintiff first sued Penn National only, alleging violations of FACTA. (Doc. 1.) Penn National then moved to dismiss the complaint for lack of personal jurisdiction and for failure to state a claim, and Plaintiff asked for leave to file an amended complaint. (Docs. 15, 28.) A telephonic hearing was held before U.S. Magistrate Judge Daniel C. Irick, who dismissed the complaint without prejudice and gave Plaintiff leave to file an amended complaint. (Docs. 31, 33.) Plaintiff then filed an amended complaint (Doc. 34), which was dismissed sua sponte by the Court as an impermissible shotgun pleading (Doc. 38), followed by a second amended complaint (Doc. 39). Plaintiff also moved for jurisdictional discovery, which was denied. (Docs. 40, 51.)

         On the second go-around, Plaintiff added a second count and a second defendant: unjust enrichment against Everi, alleging Plaintiff paid the transaction fee expecting the transaction would be performed in a secure and legally-compliant manner.[2] (Doc. 39, ¶¶ 88-95.) Both Penn National and Everi then moved to dismiss. (Docs. 41, 50.) Penn National again asserted lack of personal jurisdiction and failure to state a claim. (Doc. 41.) Everi argued Plaintiff had failed to state a claim for unjust enrichment. (Doc. 50.) The Court found Plaintiff stated a claim against Everi, but dismissed Penn National without prejudice, finding Plaintiff had failed to establish personal jurisdiction or that Everi was the agent of Penn National, as Plaintiff had argued. (Doc. 78.)

         Round this case goes again. Plaintiff filed a third amended complaint including additional agency allegations. (Doc. 80.) Specifically, Plaintiff alleges Penn National has acknowledged Everi is its agent, Penn National controls Everi, and Everi has acted as an agent of Penn National by processing cash action transactions at the Sanford Club. (Id. ¶¶ 19-22.) And for the third time, Penn National moves to dismiss for la ck of persona l jurisdiction and for failure to state a claim. (See Doc. 87; see also Docs. 15, 41.) With Plaintiffs response (Doc. 92), this matter is ripe for adjudication.

         II. Legal Standards

         On a motion to dismiss for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2), the plaintiff bears the burden to establish jurisdiction over the defendant. Posner v. Essex Ins. Co., Ltd., 178 F.3d 1209, 1214 (11th Cir. 1999). To that end, the plaintiff must plead sufficient facts to establish that: (1) a basis for jurisdiction exists under Florida's long-arm statute; and (2) the exercise of personal jurisdiction comports with the Due Process Clause of the Fourteenth Amendment. Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990).

         Unrefuted facts are accepted as true. Posner, 178 F.3d at 1215. If, however, “a defendant raises through affidavits, documents or testimony a meritorious challenge to personal jurisdiction, the burden shifts to the plaintiff to prove jurisdiction by affidavits, testimony or documents.” Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 627 (11th Cir. 1996) (quoting Jet Charter Serv., Inc. v. Koeck, 907 F.2d 1110, 1112 (11th Cir. 1990)); see also Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1350 (11th Cir. 2013) (explaining if the defendant refutes the well-pled jurisdictional facts, the burden “shifts back to the plaintiff to produce evidence supporting jurisdiction”) (quoting Madara, 916 F.2d at 1514). But in the face of conflicts, the Court construes “all reasonable inferences in favor of the plaintiff.” Meier ex rel. Meier v. Sun Int'l Hotels, Ltd., 288 F.3d 1264, 1269 (11th Cir. 2002) (citing Madara, 916 F.2d at 1514).

         III. Analysis

         From the starting gun, Penn National has asserted a lack of personal jurisdiction under Rule 12(b)(2). (See Doc. 15.) To survive a Rule 12(b)(2) motion to dismiss, Plaintiff must first show that jurisdiction is proper under Florida's long-arm statute, Florida Statute § 48.193. See Madara, 916 F.2d at 1514. Plaintiff has twice now argued jurisdiction stems only from an agency relationship between Everi and Penn National. (See Doc. 59, pp. 1-3; Doc. 92, p. 3.) And Plaintiff has twice now failed. (See Doc. 78.) Finding Plaintiff has failed to establish jurisdiction under Florida's long-arm statute, the Court will not reach the constitutional inquiry nor will it address Penn National's Rule 12(b)(6) arguments. See Madara, 916 F.2d at 1514.

         A. Conducting ...

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