N.D. Ill Dismisses Defendants for Lack of Personal Jurisdiction

In Shanahan v. Nat’l Auto Prot. Corp., 2020 U.S. Dist. LEXIS 101031 (N.D. Unwell. June 9, 2020), the court docket dismissed three defendants for lack of private jurisdiction, rejecting plaintiff’s conclusory allegations {that a} fourth defendant who referred to as plaintiff was appearing as an agent for the opposite three defendants.

On June 3, 2019, plaintiff acquired an unsolicited telephone name from Nationwide Auto concerning prolonged vehicle warranties, which plaintiff finally bought. After plaintiff bought and acquired some materials concerning the auto guarantee she bought, in keeping with the grievance, she realized that her service plan was with the three different defendants, together with two Matrix firms and Nationwide Motor (collectively, the “Non-Calling Defendants”). She then sued all 4 entities for violations of the TCPA, (2) the Illinois Computerized Phone Dialers Act (ATDA); and (3) the Illinois Shopper Fraud and Misleading Enterprise Practices Act (ICFA).

The Non-Calling Defendants moved to dismiss for lack of private jurisdiction. The court docket initially discovered that there was no basic jurisdiction over any of the three defendants, which weren’t included in Illinois nor did they’ve their principal locations of enterprise there.

Plaintiff argued that there was particular private jurisdiction over the Non-Calling Defendants as a result of Nationwide Auto was their agent. The court docket famous that “[p]arties create an company relationship when a ‘particular person (a “principal”) manifests assent to a different particular person (an “agent”) that the agent shall act on the principal’s behalf and topic to the principal’s management, and the agent manifests assent or in any other case consents so to behave.’” An agent’s authority could be precise or obvious. The court docket moreover discovered that to be held vicariously liable below the TCPA, an agent will need to have both specific or obvious authority.

As to plaintiff’s company concept on this case, the court docket first rejected plaintiff’s rivalry that Nationwide Auto had precise authority from the Matrix firms or Nationwide Motor. The settlement she relied upon to make that argument was with solely one in all these defendants, and extra importantly, the court docket discovered that though the contract grants “some management over Nationwide Auto, it doesn’t present enough management to confer company below an precise authority concept.” Following the Seventh Circuit’s resolution in Warciak v. Subway Rests., Inc., 949 F.3d 354 (seventh Cir. 2020), the court docket discovered that “’whereas an company relationship could be created by contract, not all contractual relationships type an company.’” The court docket additionally discovered {that a} declaration submitted by defendants additional undermined plaintiff’s concept that the contract created an precise company relationship.

The court docket contrasted the contract on this case with that in Karon v. CNU On-line Holdings, LLC, No. 18 C 7360, 2019 U.S. Dist. LEXIS 117925, 2019 WL 3202822, at *3 (N.D. Unwell. July 16, 2019), the place “the plaintiff alleged enough information to determine vicarious legal responsibility as a result of the defendant instructed its contracted telemarketer ‘the place to name, how typically to name, and the place to direct clients through the name.’” The court docket discovered that on this case the plaintiff didn’t allege that Matrix exerted that stage of management over Nationwide Auto’s telephone calls or supplied any route as to how the advertising and marketing calls proceeded.

The court docket additionally rejected plaintiff’s assertions of obvious authority. Plaintiff argued that the Non-Calling Defendants manifested obvious authority via the service plan contract and brochure which “included their names and made them events to the Service Plan.” The court docket, nonetheless, was unpersuaded that merely receiving a service plan would trigger an inexpensive third-party to consider that the vendor will need to have been their agent. “Plaintiff doesn’t establish any statements made by the [Non-Calling Defendants] in her Service Plan supplies—or at every other time—representing that they made Nationwide Auto their agent. This failure defeats her concept based mostly upon obvious authority.” The court docket additionally famous that third events regularly encounter eventualities the place one get together sells or markets the products or providers of one other firm with out being an agent of that firm. Regardless of the supply of discovery, plaintiff provided nothing to counsel that this was not the case right here.

Lastly, the court docket rejected plaintiff’s argument that the Non-Calling Defendants created an company relationship with Nationwide Auto by ratifying its actions. The court docket discovered that Non-Calling Defendants submitted unrebutted affidavits that they didn’t know of Nationwide Auto’s calling practices, and thus, they didn’t ratify such practices.

For these of us in TCPAWorld defending in opposition to company and vicarious legal responsibility claims, this case demonstrates the significance of creating positive your contracts don’t inadvertently create an company relationship when one actually doesn’t exist and when you nonetheless change into a defendant in TCPA litigation, the significance of submitting proof to reveal the dearth of precise or obvious authority over your distributors. For those who comply with these finest practices, you not solely have merit-based defenses, nevertheless it additionally could provide help to on private jurisdiction.