United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER
Benson, United States District Judge
the court is Defendant's Motion to Dismiss pursuant to
Federal Rule of Civil Procedure 12(b). Dkt. No. 23. The
motion has been fully briefed by both parties, and the court
has considered the facts and arguments set forth in those
filings. Pursuant to civil rule 7-1(f) of the United States
District Court for the District of Utah Rules of Practice,
the court elects to determine the motion on the basis of the
written memoranda and finds that oral argument would not be
helpful or necessary. DUCivR 7-1(f).
following facts are taken from Alvord's complaint. For
purposes of Defendants' 12(b)(6) motion, they are
accepted as true and viewed in the light most favorable to
the plaintiff as the non-moving party. GFF Corp. v.
Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384
(10th Cir. 1997). For purposes of Defendants'
12(b)(2) motion, “all factual disputes are resolved in
the plaintiff's favor and the plaintiff's prima facie
showing is sufficient notwithstanding the contrary
presentation by the moving party.” Behagen v.
Amateur Basketball Ass'n of the United States, 744
F.2d 731, 733 (10th Cir. 1984).
Thomas Alvord brings these claims under the Telephone
Consumer Protection Act (TCPA), 47 U.S.C. § 227. Dkt.
No. 19 ¶ 1. Alvord is the sole owner of the mobile phone
number 801-735-1968, which is registered on the national Do
Not Call List. Id. ¶¶ 14-15. Between
February 2019 and May 2019, Alvord received 17 unsolicited
calls from seemingly related phone numbers. Id.
¶ 16. After answering one of the calls, Alvord
identified Defendant Hardwick Investors Group, LLC dba Quick
Fi Capital (Quick Fi), a New York company, as the source of
the phone calls. Id. ¶¶ 17-25. He also
alleges that the calls were made with an automated dialing
system, in violation of the TCPA. Id. Quick Fi later
sent an email to Alvord claiming that the calls had been made
by Defendant Texnicha Outsourcing Solutions (Texnicha), a
telemarketing company incorporated in the Philippines.
Id. ¶¶ 27-29. Alvord alleges that either
Texnicha or Quick Fi made the calls, and if Texnicha made the
calls, they did so at Quick Fi's request and from a list
provided by Quick Fi. Id. ¶ 31. Alvord further
alleges that Defendant Daniel Hardwick personally manages
Quick Fi's dialing leads by (1) providing a list of
numbers to call, and (2) running the list through TCPA
compliance software before authorizing the calls.
Id. ¶ 29. Alvord alleges several injuries
resulting from the unsolicited calls and seeks statutory
damages. Id. ¶¶ 33-34, 46-47.
first move to dismiss the complaint on the basis that this
court lacks personal jurisdiction over either Quick Fi or
Daniel Hardwick. Dkt. No. 23 at 6. In considering a motion to
dismiss based on lack of personal jurisdiction pursuant to
Rule 12(b)(2), “[t]he plaintiff bears the burden of
establishing personal jurisdiction, but where, as here, the
issue is raised early on in litigation, based on pleadings .
. . and affidavits, that burden can be met by a prima facie
showing.” Shrader v. Biddinger, 633 F.3d 1235,
1239 (10th Cir. 2011) (citing Dudnikov v. Chalk &
Vermillion Fine Arts, Inc., 514 F.3d 1063, 1069-70 (10th
Cir. 2008)). The plaintiff's allegations are “taken
as true to the extent they are uncontroverted by the
defendant's affidavits.” Behagen, 744 F.2d
at 733. “If the parties present conflicting affidavits,
all factual disputes are resolved in the plaintiff's
favor, and the plaintiff's prima facie showing is
sufficient notwithstanding the contrary presentation by the
moving party.” Id.
undisputed that the TCPA does not authorize nationwide
service of process. Where the federal statue does not
authorize nationwide service of process, Federal Rule of
Civil Procedure 4(k)(1)(a) “commands the district court
. . . to apply the law of the state in which the district
court sits.” Dudnikov, 514 F.3d at 1069-70.
Utah's long arm statute provides that it “should be
applied so as to assert jurisdiction over nonresident
defendants to the fullest extent permitted by the due process
clause of the Fourteenth Amendment to the United States
Constitution.” Utah Code Ann. § 78B-3-201(3). The
Utah Supreme Court has stated that “any set of
circumstances that satisfied due process will also satisfy
the long-arm statute.” SII MegaDiamond, Inc. v. Am.
Superabrasives Corp., 969 P.2d 430, 433 (Utah 1998).
“This collapses the Utah standard into the more general
‘due process' standard for jurisdiction.”
Rusakiewicz v. Lowe, 556 F.3d 1095, 1100 (10th Cir.
due-process analysis of specific personal jurisdiction is a
two-step inquiry. First, this court must consider whether the
defendant has sufficient “minimum contacts” with
the forum state “that he should reasonably anticipate
being haled into court there.” World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 297
(1980). Second, “if the defendant's actions create
sufficient minimum contacts, the court must then consider
whether the exercise of personal jurisdiction over the
defendant offends traditional notions of fair play and
substantial justice.” OMI Holdings, Inc. v. Royal
Ins. of Can., 149 F.3d 1086, 1091 (10th Cir. 1998)
(internal citations and quotation marks omitted).
addition to their jurisdictional arguments, Defendants move
to dismiss the claims related to Daniel Hardwick on the basis
that the allegations fail to state a claim upon which relief
can be granted. In considering a motion to dismiss pursuant
to Rule 12(b)(6), all well-pleaded factual allegations, as
distinguished from conclusory allegations, are accepted as
true and viewed in the light most favorable to the non-moving
party. GFF Corp. v. Associated Wholesale Grocers,
Inc., 130 F.3d 1381, 1384 (10th Cir. 1997). Plaintiff
must provide “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). This requires
“more than an unadorned,
Iqbal, 556 U.S. at 678 (2009). This court's role
“is not to weigh potential evidence that the parties
might present at trial, but to assess whether the
plaintiff's complaint alone is legally sufficient.”
Miller v. Glanz, 948 F.2d 1526, 1565
(10th Cir. 1991). In doing so, “courts must
consider the complaint in its entirety, as well as other
sources courts ordinarily examine when ruling on Rule
12(b)(6) motions to dismiss, in particular, documents
incorporated into the complaint by reference, and matters of
which a court may take judicial notice.” Tellabs,
Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308,
322 (2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S.
Motion to Dismiss for Lack of Personal Jurisdiction
Fi and Hardwick contend that they are not subject to personal
jurisdiction in Utah because they do not have sufficient
minimum contacts with the state. The minimum-contacts
standard may be met through a finding of either general
jurisdiction or specific jurisdiction. Helicopteros
Nacionales v. Hall, 466 U.S. 408, 415 (1984). Alvord
does not contend that Quick Fi or Hardwick are subject to
general personal jurisdiction in Utah. Dkt. No. 26 at 7. The
relevant question, then, is whether the defendants are
subject to specific personal jurisdiction in the state.
“The minimum contacts necessary for specific personal
jurisdiction may be established where the defendant has
purposefully directed its activities toward the forum
jurisdiction and where the underlying action is based upon
activities that arise out of or relate to the defendant's
contacts with the forum.” Trujillo v.
Williams, 465 F.3d 1210, 1218 (10th Cir.2006) (citations
and internal quotation marks omitted).
alleges that Quick Fi either made the calls or provided
Texnicha with the list of phone numbers and requested that
they call those numbers in order to generate business for
Quick Fi. That list included Alvord's number, which has a
Utah area code and is therefore identifiable as a Utah phone
number. Alvord further alleges that Daniel Hardwick manages
Quick Fi's telephone leads and personally provided the
list to Texnicha after taking responsibility for TCPA
compliance. These factual allegations support the conclusion
that Quick Fi and Hardwick directed specific activities-phone
calls marketing Quick Fi's services-at citizens of Utah,
and Alvord's claims arise out of those activities. Quick
Fi and Hardwick dispute these factual allegations, yet for
purposes of this motion, “all factual ...