1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KENNETH J. MOSER, Case No.: 19-cv-831-WQH-BLM
12 Plaintiff, ORDER 13 v. 14 LIFEWATCH INC., et al., 15 Defendants. 16 HAYES, Judge: 17 The matters before the Court are the Motions to Dismiss Plaintiff’s First Amended 18 Complaint filed by Defendants David Roman (ECF No. 9) and Lifewatch, Inc., and 19 Medguard Alert, Inc. (ECF No. 10). 20 I. BACKGROUND 21 On May 3, 2019, Plaintiff Kenneth J. Moser filed a Complaint against Defendants 22 Medguard Alert, Inc. (“Medguard”); Lifewatch, Inc. (“Lifewatch”) d/b/a Lifewatch USA, 23 Medical Alarm Systems, and Lifewatch Moto; Evan Sirlin; and David Roman. (ECF No. 24 1). Moser amended the Complaint on November 14, 2019. (ECF No. 7). In the First 25 Amended Complaint (“FAC”), Moser alleges that “Defendants transmitted seventeen pre- 26 recorded and auto-dialed telephone calls to Plaintiff’s cellular telephone number . . . 27 between May 4, 2015, and October 21, 2019.” (Id. ¶ 9). Moser alleges that he received calls 28 1 from various numbers on May 4, May 6, June 9, July 6, September 2, and November 5, 2 2015; January 14 and July 13, 2016; May 15, 2018; and October 21, 2019. Moser alleges 3 that all but the seventeenth call “used a non-natural robotic voice to play a pre-recorded 4 message” attempting to sell Moser “a personal medical alert system.” (Id. ¶ 15). Moser 5 alleges that the seventeenth call “used an automated Avatar system to ask questions before 6 transferring to a live operator.” (Id.). 7 Moser alleges that he knows the calls were made by Defendants “because he had 8 similar calls made to him using the same pre-recorded message which was linked back to 9 the Defendants in other [small claims] cases filed by Plaintiff.” (Id. ¶ 18). Moser alleges 10 that in order to find out who was calling him, Moser “went through the process of 11 purchasing Defendants[’] product on two occasions.” (Id. ¶ 21). Moser alleges that he made 12 the first purchase on December 10, 2014, “in [relation to] a previous [small claims] case.” 13 (Id. ¶ 22). Moser alleges that his credit card bill showed that “‘LIFEWATCH MOTO,’ a 14 dba of Lifewatch INC,” charged Moser for the purchase. (Id.). Moser alleges that he made 15 the second purchase on May 15, 2018. Moser alleges that his credit card bill showed that 16 “Med Guard Alert” charged Moser for the purchase. (Id. ¶ 23). Moser alleges that the 17 paperwork for both purchases came from “Medical Alarm Systems.” (Id. ¶ 38). 18 Moser alleges that on March 5, 2015, he “filed the first of twenty-five small claims 19 actions in the San Diego Superior Court . . . for alleged violations of the Telephone 20 Consumer Protection Act [(“TCPA”)], 47 U.S.C. [§] 227[,] and other laws regarding the 21 call he received by defendant [Lifewatch].” (Id. ¶ 27). Moser alleges that Lifewatch settled 22 one action but refused to settle the other actions, and Moser “continued to receive more 23 calls from Defendants even though he had requested to be put on their internal do-not-call 24 list.” (Id. ¶ 28). Moser alleges that he “filed two more small claims actions on October 22, 25 2015, in San Diego Superior Court . . . .” (Id. ¶ 29). Moser alleges that Lifewatch settled 26 the two actions in June 2016. Moser alleges that he “has since filed twenty-two other small 27 claims actions against some or all of the Defendants of which six are on calendar for future 28 1 trial, fifteen were adjudicated in favor of Plaintiff by default[,] and six of these have been 2 satisfied through collection efforts for calls not alleged in this case.” (Id. ¶ 31). 3 Moser alleges that Lifewatch and Medguard operate as “a common enterprise.” (Id. 4 ¶ 38). Moser alleges that the Lifewatch website transfers visitors to the Medguard website. 5 Moser alleges that the judgment in Moser’s favor in a previous case against Lifewatch was 6 paid with a check from Medguard. Moser alleges that Defendant Evan Sirlin is the 7 President of Lifewatch. Moser alleges that Defendant David Roman is the Vice-President 8 and Chairman of Lifewatch and the President, CEO, and Treasurer of Medguard. 9 Moser brings claims against Defendants for violations of the TCPA, 47 U.S.C. § 10 227(b)(1)(A)(iii) and 47 C.F.R. § 64.1200(c)(2). Moser seeks statutory damages, treble 11 damages, “[i]njunctive relief to prevent further illegal calls,” and costs. (Id. at 14). 12 On December 3, 2019, Defendants Roman, Lifewatch, and Medguard1 (collectively, 13 “Defendants”) filed Motions to Dismiss Moser’s FAC. (ECF Nos. 9, 10). Defendants move 14 to dismiss the FAC pursuant to Rules 12(b)(4), 12(b)(5), and 12(b)(6) of the Federal Rules 15 of Civil Procedure on the grounds that process was insufficient, service of process was 16 insufficient, and Moser fails to state a claim upon which relief can be granted. Defendant 17 Roman further moves to dismiss the FAC pursuant to Rule 12(b)(2) of the Federal Rules 18 of Civil Procedure on the ground that the Court lacks personal jurisdiction. On December 19 23, 2019, Moser filed Oppositions to the Motions to Dismiss. (ECF Nos. 13, 14). On 20 December 30, 2019, Defendants filed Replies. (ECF Nos. 15, 16). 21 II. SERVICE OF PROCESS 22 Defendants move to dismiss the FAC pursuant to Rule 12(b)(5) of the Federal Rules 23 of Civil Procedure on the grounds that Moser failed to serve the Summons and Complaint 24 within the 90-day period required by Rule 4(m) of the Federal Rules of Civil Procedure. 25 Defendants contend that they were served 147 days after Moser filed the Complaint. 26
27 1 Defendant Evan Sirlin has not appeared in this action, and the docket does not reflect that Sirlin has been 28 1 Defendants contend that, “[u]nder [Rule] 12(b)(5), the case should be dismissed because 2 plaintiff cannot demonstrate good cause for his service of process delay . . . .” (ECF No. 9 3 at 11; ECF No. 10 at 6). 4 Moser contends that he demonstrates good cause for the delay in service. Moser 5 contends that after filing the Complaint, he “diligently began looking for process servers . 6 . . but then was gone on a pre-planned trip in June.” (ECF No. 13 at 5). Moser contends 7 that he received a call back from a process server, but the individual “was a con man,” 8 never completed service, and “cost Moser a lot of time.” (Id. at 6). Moser contends that 9 “[o]nce he hired a new process server, on September 27, 2019[,] the documents were served 10 within three days on September 30, 2019.” (Id.). 11 Rule 12(b)(5) of the Federal Rules of Civil Procedure permits a defendant to move 12 to dismiss a plaintiff’s complaint for “insufficient service of process.” Fed. R. Civ. P. 13 12(b)(5). “A federal court does not have jurisdiction over a defendant unless the defendant 14 has been properly served under Fed. R. Civ. P. 4.” Direct Mail Specialists, Inc. v. Eclat 15 Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988) (citing Jackson v. Hayakawa, 16 682 F.2d 1344, 1347 (9th Cir. 1982)). Rule 4(m) provides, in relevant part: 17 If a defendant is not served within 90 days after the complaint is filed, the court— on motion or on its own after notice to the plaintiff—must dismiss the action without 18 prejudice against that defendant or order that service be made within a specified 19 time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. 20
21 To demonstrate good cause, the plaintiff must show that “‘(a) the party to be served 22 received actual notice of the lawsuit; (b) the defendant would suffer no prejudice; and (c) 23 plaintiff would be severely prejudiced if his complaint were dismissed.’” Oyama v. 24 Sheehan, 253 F.3d 507, 512 (9th Cir. 2001) (quoting Boudette v. Barnette, 923 F.2d 754, 25 756 (9th Cir. 1991)). The court further has discretion to grant an extension of time even 26 absent a showing of good cause. See Efaw v. Williams, 473 F.3d 1038, 1040 (9th Cir. 2007) 27 (“Rule 4(m), as amended in 1993, requires a district court to grant an extension of time 28 when the plaintiff shows good cause for the delay. Additionally, the rule permits the district 1 court to grant an extension even in the absence of good cause.” (citations omitted)). “In 2 making extension decisions under Rule 4(m), a district court may consider factors ‘like a 3 statute of limitations bar, prejudice to the defendant, actual notice of the lawsuit, and 4 eventual service.’” Id. at 1041 (quoting Troxell v. Fedders of N. Am., Inc., 160 F.3d 381, 5 383 (7th Cir. 1998)). “‘Rule 4 is a flexible rule that should be liberally construed so long 6 as a party receives sufficient notice of the complaint.’” Direct Mail Specialists, Inc., 840 7 F.2d at 688 (quoting United Food & Commercial Workers Union v. Alpha Beta Co., 736 8 F.2d 1371, 1382 (9th Cir. 1984), as amended). 9 In this case, Moser served the Summons and Complaint 147 days after the he filed 10 the Complaint. Moser stated that he “tried contacting numerous process servers” on the 11 East coast in July and August, but none of them returned Moser’s calls. (Moser Decl., ECF 12 No. 13-1 ¶¶ 12-13). Moser stated that, finally, a process server “assured [Moser] that he 13 could perform the service” by August 26, 2019. (Id. ¶¶ 13, 15). Moser stated that after the 14 process server charged Moser for the service, he stopped communicating with Moser. (Id. 15 ¶¶ 16, 25). Moser stated that on September 27, 2019, he hired another firm that was “able 16 to serve all the documents on all Defendants on September 30, 2019.” (Id. ¶ 26). 17 Defendants received actual notice of the lawsuit and suffered no prejudice from the delay 18 in service. In addition, “[t]his case was filed . . . two days before the beginning of the statute 19 of limitations on some of the calls.” (Id. ¶ 27; see Mann v. Am. Airlines, 324 F.3d 1088, 20 1090-91 (9th Cir. 2003) (explaining that the district court did not abuse its discretion in 21 granting an extension of time for service of process where the statute of limitations would 22 bar re-filing of the suit) (citing Fed. R. Civ. P. 4, Advisory Committee Note to 1993 23 Amendments, subdivision (m) (“Relief may be justified, for example, if the applicable 24 statute of limitations would bar the re-filed action.”))). The Court concludes that Moser has 25 demonstrated good cause for the delay in service. 26 Defendants’ Motions to Dismiss the FAC pursuant to Rule 12(b)(5) are denied. 27 /// 28 /// 1 III. INSUFFICIENT PROCESS 2 Defendants move to dismiss the FAC pursuant to Rule 12(b)(4) of the Federal Rules 3 of Civil Procedure on the grounds that the Summons failed to identify the Defendant being 4 served. Defendants contend that “[a] single copy of the original Summons and Complaint 5 was served upon David Roman, but the Summons does not identify the defendant, i.e., it 6 does not indicate whether Mr. Roman is being served as an individual or whether he is 7 being served as an agent of [ ] Lifewatch and/or Medguard.” (ECF No. 10 at 11; see ECF 8 No. 9 at 29). Defendants contend that “[t]his violation of Fed. R. Civ. P. 4(a) is prejudicial 9 inasmuch as it deprives defendants from knowing who has actually been served and 10 whether and when to respond to the Complaint or FAC.” (ECF No. 9 at 29; ECF No. 10 at 11 11). 12 Moser contends that “Defendants do not claim or identify any actual prejudice or 13 lack of notice. Mr. Roman . . . admits that all [Defendants] were made well aware of the 14 lawsuit and time to respond.” (ECF No. 13 at 4). Moser contends that Defendants’ filing 15 of the Motions to Dismiss is sufficient to prevent a technical error from invalidating the 16 process. 17 Rule 12(b)(4) allows a defendant to challenge the content of the summons by filing 18 a motion to dismiss for “insufficient process.” Fed. R. Civ. P. 12(b)(4). Rule 4(a) requires 19 that a summons “name the court and the parties;” “be directed to the defendant;” “state the 20 name and address of the plaintiff’s attorney or—if unrepresented—of the plaintiff;” “state 21 the time within which the defendant must appear and defend;” “notify the defendant that a 22 failure to appear and defend will result in a default judgment against the defendant for the 23 relief demanded in the complaint;” “be signed by the clerk;” and “bear the court’s seal.” 24 Fed. R. Civ. P. 4(a)(1). “Technical defects in a summons do not justify dismissal unless a 25 party is able to demonstrate actual prejudice.” Chan v. Soc’y Expeditions, Inc., 39 F.3d 26 1398, 1404 (9th Cir. 1994) (citation omitted). However, “neither actual notice nor simply 27 naming the defendant in the complaint will provide personal jurisdiction without 28 1 ‘substantial compliance with Rule 4.’” Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986) 2 (quoting Jackson, 682 F.2d at 1347), as amended. 3 In this case, the Summons provided a section for Moser to fill in the name and 4 address of the Defendant being served. (Ex. 1, Roman Decl., ECF No. 10-2 at 6). Moser 5 did not fill in any Defendant’s name or address. The Summons identified “Kenneth Moser” 6 as the Plaintiff, but stated only “See Attachment” for the Defendant. (Id.). The Summons 7 did not “name . . . the parties” and was not “directed to the defendant” as required by Rule 8 4(a)(1)(A)-(B). However, the Summons complied with the other six requirements of Rule 9 4(a), and the Complaint identifies each Defendant. Defendants filed timely responsive 10 pleadings. See United Food & Commercial Workers Union, 736 F.2d at 1382 (“[A] 11 defendant’s answer and appearance in an action ‘should be enough to prevent any technical 12 error in form from invalidating the process.’” (quoting 4 Charles Allen Wright & Arthur 13 R. Miller, Federal Practice and Procedure § 1088, at 155 (Supp. 1983)). The Court finds 14 that Moser “substantial[ly] compli[ed] with Rule 4.” Benny, 799 F.2d at 492 (quotation 15 omitted). Defendants have not demonstrated that they were prejudiced by the failure of the 16 Summons to identify each Defendant being served. See United Food & Commercial 17 Workers Union, 736 F.2d at 1382 (“Even if the summons fails to name all of the defendants 18 . . . dismissal is generally not justified absent a showing of prejudice.” (citations omitted)). 19 Defendants’ Motions to Dismiss the FAC pursuant to Rule 12(b)(4) are denied. 20 IV. PERSONAL JURISDICTION 21 Defendant David Roman moves to dismiss the FAC pursuant to Rule 12(b)(2) of the 22 Federal Rules of Civil Procedure on the ground that the Court lacks personal jurisdiction. 23 Roman contends that he is not subject to either general or specific jurisdiction in California. 24 Roman contends that he has no contact with the State of California and has not purposefully 25 availed himself of the privileges of conducting activities in California. Roman contends 26 that it would be burdensome for him to defend this case in California. Roman contends that 27 Moser’s allegations about Roman’s role as a corporate officer for Lifewatch and Medguard 28 “are simply too vague and conclusory to suggest that [Roman] has the requisite degree of 1 participation or control in the activities giving rise to plaintiff’s cause of action.” (ECF No. 2 9 at 22). 3 Moser “does not oppose dismissing Defendant, David Roman from the case on the 4 basis of personal jurisdiction.” (ECF No. 14 at 3). Moser contends that he “believe[s] that 5 Mr. Roman directed and/or made calls to the California residents” and “requests that 6 [Roman’s] dismissal be without prejudice to amend should facts come to light during 7 discovery that more conclusively prove his actions in directing or making the alleged 8 calls.” (Id.). 9 Under Rule 12(b)(2) of the Federal Rules of Civil Procedure, a defendant may move 10 to dismiss a complaint for “lack of personal jurisdiction.” Fed. R. Civ. P. 12(b)(2). In 11 opposing a defendant’s Rule 12(b)(2) motion, “the plaintiff bears the burden of establishing 12 that jurisdiction is proper.” Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008). 13 “Where, as here, the defendant’s motion is based on written materials rather than an 14 evidentiary hearing, the plaintiff need only make a prima facie showing of jurisdictional 15 facts to withstand the motion to dismiss.” Mavrix Photo, Inc. v. Brand Techs., Inc., 647 16 F.3d 1218, 1223 (9th Cir. 2011) (citing Brayton Purcell LLP v. Recordon & Recordon, 606 17 F.3d 1124, 1127 (9th Cir. 2010), abrogated on other grounds as recognized by Axiom 18 Foods, Inc. v. Acerchem Int’l, Inc., 874 F.3d 1064, 1070 (9th Cir. 2017)). “The plaintiff 19 cannot ‘simply rest on the bare allegations of its complaint,’ but uncontroverted allegations 20 in the complaint must be taken as true.” Id. (quoting Schwarzenegger v. Fred Martin Motor 21 Co., 374 F.3d 797, 800 (9th Cir. 2004)); see Ballard v. Savage, 65 F.3d 1495, 1498 (9th 22 Cir. 1995) (“[T]he plaintiff need only demonstrate facts that if true would support 23 jurisdiction over the defendant.” (citing Data Disc., Inc. v. Sys. Tech. Assocs., 557 F.2d 24 1280, 1285 (9th Cir. 1977)). “[W]e may not assume the truth of allegations in a pleading 25 which are contradicted by affidavit . . . but we resolve factual disputes in the plaintiff’s 26 favor.” Mavrix Photo, Inc., 647 F.3d at 1223 (alteration in original) (quotation and citation 27 omitted); see Boschetto, 539 F.3d at 1015 (“Absent an evidentiary hearing, this court ‘only 28 inquire[s] into whether [the plaintiff’s] pleadings and affidavits make a prima facie 1 showing of personal jurisdiction.’” (alterations in original) (quoting Caruth v. Int’l 2 Psychoanalytical Ass’n, 59 F.3d 126, 127-28 (9th Cir. 1995)). 3 “‘Federal courts apply state law to determine the bounds of their jurisdiction over a 4 party.’” Axiom Foods, Inc., 874 F.3d at 1067 (quoting Williams v. Yamaha Motor Co., 851 5 F.3d 1015, 1020 (9th Cir. 2017)). “California authorizes its courts to exercise jurisdiction 6 ‘to the full extent that such exercise comports with due process.’” Id. (quoting Williams, 7 851 F.3d at 1020); see Cal. Civ. Proc. Code § 410.10 (“A court of this state may exercise 8 jurisdiction on any basis not inconsistent with the Constitution of this state or of the United 9 States.”). “Accordingly, ‘the jurisdictional analyses under [California] state law and federal 10 due process are the same.’” Axion Foods, Inc., 874 F.3d at 1067 (alteration in original) 11 (quoting Mavrix Photo, Inc., 647 F.3d at 1223). 12 Absent one of the traditional basis for personal jurisdiction––domicile, presence, or 13 consent––due process requires that a defendant have “certain minimum contacts with [the 14 forum state] such that maintenance of the suit does not offend traditional notions of fair 15 play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). The 16 extent to which a federal court can exercise personal jurisdiction absent presence, domicile, 17 or consent depends on the nature and quality of the Defendant’s contacts with the state. 18 “There are two forms of personal jurisdiction that a forum state may exercise over a 19 nonresident defendant—general jurisdiction and specific jurisdiction.” Boschetto, 539 F.3d 20 at 1016. 21 Personal jurisdiction over individual corporate officers may not be based on the 22 court’s jurisdiction over the corporation itself. See Davis v. Metro Prods., Inc., 885 F.2d 23 515, 520 (9th Cir. 1989) (“Under the fiduciary shield doctrine, a person’s mere association 24 with a corporation that causes injury in the forum state is not sufficient in itself to permit 25 that forum to assert jurisdiction over the person.” (citations omitted)). However, the 26 defendant’s status as a corporate officer “does not somehow insulate them from 27 jurisdiction.” Calder v. Jones, 465 U.S. 783, 789-90 (1984). “Each defendant’s contacts 28 with the forum state must be assessed individually.” Id. “For claims sounding in tort, a 1 corporate officer can be subject to jurisdiction based on his own sufficient individual 2 contacts with the forum.” Boon Global Ltd. v. U.S. District Court, 923 F.3d 643, 652 (9th 3 Cir. 2019); see Davis, 885 F.2d at 522 (explaining that the court has personal jurisdiction 4 over corporate officers “as long as the court finds those officers have sufficient minimum 5 contacts with [the forum state]”); Roberts v. Obelisk, No. 18cv2898-LAB (BGS), 2019 6 U.S. Dist. LEXIS 72065, at *12 (S.D. Cal. Apr. 29, 2019) (“Individual [d]efendants cannot 7 take advantage of the so-called ‘fiduciary-shield doctrine’ if their contacts with California 8 would otherwise give rise to jurisdiction.”). 9 In some circumstances, the court may consider a corporation’s contacts with the 10 forum state, or a corporate officer’s acts on the corporation’s behalf, as a corporate officer’s 11 individual contacts with the forum state. A corporation’s contacts with the forum state may 12 be “imputed to [the individual defendant]” where the court would “‘pierce the corporate 13 veil . . . in liability contexts.’” Boon Global Ltd., 923 F.3d at 652 (quoting Davis, 885 F.2d 14 at 520). Courts pierce the corporate veil where the corporation is the agent or “alter ego” 15 of the individual defendant, Flynt Distrib. Co. v. Harvey, 734 F.2d 1389, 1393 (9th Cir. 16 1984), or where the individual defendant had control of, or direct participation in, the 17 alleged activities, Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001, 1021 18 (9th Cir. 1985). See Transgo, Inc., 768 F.2d at 1021 (“A corporate officer or director is, in 19 general, personally liable for all torts which he authorizes or directs or in which he 20 participates, notwithstanding that he acted as an agent of the corporation and not on his 21 own behalf.” (quotation omitted)). The Court of Appeals for the Ninth Circuit has 22 recognized that “[c]ases which have found personal liability on the part of corporate 23 officers have typically involved instances where the [corporate officer] was the guiding 24 spirit behind the wrongful conduct . . . or the central figure in the challenged corporate 25 activity.” Davis, 885 F.2d at 523 n. 10 (quotation omitted); see Aries Music Entm’t, Inc. v. 26 Angelica’s Record Distribs., 506 F. App’x 550, 552 (9th Cir. 2013) (finding a corporate 27 officer’s contacts on behalf of a corporation sufficient to subject the officer to personal 28 1 jurisdiction because the officer was a “‘primary participant’” in the alleged wrongdoing 2 (quoting Calder, 465 U.S. at 790)). 3 a. General Jurisdiction 4 “[A] finding of general jurisdiction permits a defendant to be haled into court in the 5 forum state to answer for any of its activities in the world.” Schwarzenegger, 374 F.3d at 6 801. The standard for general jurisdiction “is an exacting standard” that requires that a 7 defendant’s contacts “‘approximate physical presence’ in the forum state.” Id. (quoting 8 Bancroft & Masters, Inc, v. Augusta Nat’l, Inc., 223 F.3d 1082, 1086 (9th Cir. 2000)). For 9 general jurisdiction to exist, a defendant’s affiliations with the forum state must be “so 10 ‘continuous and systematic’ as to render them essentially at home in the forum State.” 11 Daimler AG v. Bauman, 571 U.S. 117, 127 (2014) (quoting Goodyear Dunlop Tires 12 Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)). “It is the nature and extent of the 13 contacts that determines whether they are ‘substantial’ or ‘continuous and systematic.’ 14 Longevity, continuity, volume, economic impact, physical presence, and integration into 15 the state’s regulatory or economic markets are among the indicia of such a presence.” 16 Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1163, 1172 (9th Cir. 2006). 17 In this case, Moser “alleges on information and belief that David Roman is the Vice- 18 President and Chairman of Lifewatch, and President, CEO, and Treasurer of Medguard . . 19 . .” (ECF No. 7 ¶ 49). Moser alleges that “Defendant Roman, in connection with the matters 20 alleged herein, transacts or has transacted business in this district and throughout the United 21 States.” (Id. ¶ 5). Moser alleges that Roman “formulated, directed, controlled, had the 22 authority to control, or participated in the acts and practices of the Corporate Defendants 23 that constitute a common enterprise.” (Id. ¶ 39). Moser alleges that Roman “ordered, 24 conducted, or allowed to be ordered the making of the illegal auto-dialed pre-recorded 25 telephone calls to Plaintiff” in California. (Id. ¶ 40). 26 Defendant Roman submitted a Declaration in support of his Motion to Dismiss. 27 (Roman Decl., Ex. B, ECF No. 9-2). Roman stated that he is an officer of Medguard and 28 Lifewatch. (Id. ¶¶ 1-2). Roman stated that he “perform[s] his job duties exclusively from 1 Connecticut.” (Id. ¶ 3). Roman stated that he has never resided in California, does not 2 maintain an office or own property in California, does not have any bank account in 3 California, does not have a P.O. box in California, does not pay taxes in California, does 4 not have any telephone listing in California, and does not have any agents, servants, or 5 employees in California.” (Id. ¶¶ 6-13). Roman stated that he “did not make the allegedly 6 violative telephone calls . . . [or] cause allegedly violative telephone calls to be made.” (Id. 7 ¶ 15). 8 Moser’s allegations regarding Roman’s contacts with California are conclusory. See 9 Mavrix Photo, 647 F.3d at 1223 (“The plaintiff cannot ‘simply rest on the bare allegations 10 of its complaint.’” (quoting Schwarzenegger, 374 F.3d at 800)). Moser fails to state facts 11 that support an inference that Roman has “continuous and systematic” contacts with 12 California. Daimler AG, 571 U.S. at 127 (quotation omitted). In addition, Roman has 13 presented evidence controverting Moser’s allegations that Roman transacts business in 14 California. Although Roman is a corporate officer of Medguard and Lifewatch, Moser fails 15 to state facts that support a reasonable inference that Medguard or Lifewatch is Roman’s 16 alter ego or that Roman would be subject to general jurisdiction if the Court imputed 17 Medguard or Lifewatch’s contacts with California to Roman. The Court finds that Moser 18 fails to present sufficient evidence to meet the “exacting standard” necessary to establish 19 general jurisdiction. Schwarzenegger, 374 F.3d at 801 (citation omitted). 20 b. Specific Jurisdiction 21 “The inquiry whether a forum State may assert specific jurisdiction over a 22 nonresident defendant ‘focuses on the relationship among the defendant, the forum, and 23 the litigation.’” Axiom Foods, Inc., 874 F.3d at 1068 (quoting Walden v. Fiore, 571 U.S. 24 277, 283-84 (2014)). “Two principles animate [this] ‘defendant-focused’ inquiry.” Id. 25 (quoting Walden, 571 U.S. at 284). “First, the relationship between the nonresident 26 defendant, the forum, and the litigation ‘must arise out of contacts that the defendant 27 himself creates with the forum State.’” Id. (quoting Walden, 571 U.S. at 284). “Second, the 28 minimum contacts analysis examines ‘the defendant’s contacts with the forum State itself, 1 not the defendant’s contacts with persons who reside there.’” Id. (quoting Walden, 571 2 U.S. at 285). “It follows that ‘a defendant’s relationship with a plaintiff or third party, 3 standing alone, is an insufficient basis for jurisdiction.’” Id. (quoting Walden, 571 U.S. at 4 286). 5 In order for a court to exercise specific jurisdiction over a nonresident defendant, 6 (1) the defendant must either “purposefully direct his activities” toward the forum or “purposefully avail[] himself of the privileges of conducting activities in the 7 forum”; (2) “the claim must be one which arises out of or relates to the defendant’s 8 forum-related activities”; and (3) “the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable.” 9
10 Id. (alteration in original) (quoting Dole Food Co., Inc. v. Watts, 303 F.3d 1104, 1111 (9th 11 Cir. 2002)). “The plaintiff bears the burden of satisfying the first two prongs of the test.” 12 Schwarzenegger, 374 F.3d at 802. “If the plaintiff meets that burden, ‘the burden then shifts 13 to the defendant to present a compelling case that the exercise of jurisdiction would not be 14 reasonable.’” Axiom Foods, Inc., 874 F.3d at 1068-69 (quoting Burger King Corp. v. 15 Rudzewicz, 471 U.S. 462, 476-78 (1985)). 16 Under the first prong of the specific jurisdiction analysis in a tort case, the court 17 inquires “whether a defendant ‘purposefully direct[s] his activities’ at the forum state, 18 applying an ‘effects’ test that focuses on the forum in which the defendant’s actions were 19 felt, whether or not the actions themselves occurred within the forum.” Yahoo! Inc. v. La 20 Ligue Contre Le Racisme, 433 F.3d 1199, 1206 (9th Cir. 2006). This “Calder effects test” 21 requires that “[t]he defendant must have ‘(1) committed an intentional act, (2) expressly 22 aimed at the forum state, (3) causing harm that the defendant knows is likely to be suffered 23 in the forum state.’” Axiom Foods, Inc., 874 F.3d at 1069 (citations omitted). Although 24 “[m]any cases in which the Calder effects test is used . . . involve wrongful conduct by the 25 defendant . . . Calder [does not] require in purposeful direction cases that all (or even any) 26 jurisdictionally relevant effects have been caused by wrongful acts.” Yahoo! Inc., 433 F.3d 27 at 1207-08 (citations omitted). “In any personal jurisdiction case we must evaluate all of 28 1 the defendant’s contacts with the forum state, whether or not those contacts involve 2 wrongful activity by the defendant.” Id. at 1207. 3 In this case, Moser “alleges on information and belief that David Roman is the Vice- 4 President and Chairman of Lifewatch, and President, CEO, and Treasurer of Medguard . . 5 . .” (ECF No. 7 ¶ 49). Moser alleges that “Defendant Roman, in connection with the matters 6 alleged herein, transacts or has transacted business in this district and throughout the United 7 States.” (Id. ¶ 5). Moser “alleges on information and belief that Defendant Roman knew 8 the calls [to Moser in California] were being made and did nothing, or was willfully and 9 recklessly ignorant of the fact his company or agents were making the calls . . . . This 10 included hiring in the ordering, procuring, and transmission of telemarketing calls 11 including those complained of [in the FAC]” (Id. ¶ 49). Moser alleges that Roman “ordered, 12 conducted, or allowed to be ordered the making of illegal auto-dialed pre-recorded 13 telephone calls to the Plaintiff” in California. (Id. ¶ 40). Moser alleges that “Roman was 14 put on notice of his illegal activity by demand letters and a plethora of lawsuits filed and 15 served on him prior to these calls being made.” (Id. ¶ 49). 16 Roman stated in his Declaration that he “do[es] not ha[ve] personal contacts with 17 California.” (Roman Decl., Ex. B, ECF No. 9-2 ¶ 4). Roman stated that he has never resided 18 in California, does not maintain an office or own property in California, does not have any 19 bank account in California, does not have a P.O. box in California, does not pay taxes in 20 California, does not have any telephone listing in California, and does not have any agents, 21 servants, or employees in California.” (Id. ¶¶ 6-13). Roman stated that he “did not make 22 the allegedly violative telephone calls [or] . . . cause allegedly violative telephone calls to 23 be made.” (Id. ¶ 15). Roman stated that he did not authorize or have any knowledge of the 24 wrongful acts alleged by Moser. Roman stated that he “do[es] not know the Plaintiff in this 25 lawsuit.” (Id. ¶ 16). 26 Moser does not allege that Defendant Roman has any personal contacts with 27 California. Moser alleges that Roman has contacts with California through his actions as a 28 corporate officer for Lifewatch and Medguard. Moser alleges that Roman committed 1 intentional acts by conducting business in California for Lifewatch and Medguard and by 2 ordering or conducting the alleged telephone calls to Moser. Moser’s allegation that Roman 3 conducts business in California is conclusory. Roman controverted Moser’s allegation that 4 Roman conducted or ordered the calls to Moser in California. The Court cannot conclude 5 that Roman committed any intentional act that was expressly aimed at California. Moser 6 fails to meet his burden to establish that Roman “purposefully direct[s] his activities” 7 towards California. Axiom Foods, Inc., 874 F.3d at 1068 (quotation omitted). The Court 8 concludes that it lacks personal jurisdiction over Defendant Roman. 9 Defendant Roman’s Motion to Dismiss Moser’s FAC is granted. 10 V. FAILURE TO STATE A CLAIM 11 Defendants move to dismiss the FAC pursuant to Rule 12(b)(6) of the Federal Rules 12 of Civil Procedure on the grounds that Moser fails to state a claim upon which relief can 13 be granted. Defendants contend that Moser’s claims are barred by the doctrine of res 14 judicata. Defendants contend that “plaintiff’s FAC demonstrates on its face that plaintiff 15 asserted or could have asserted the same TCPA claim against defendants in the dozens of 16 small claims matters plaintiff initiated against defendants on 10/22/2015 and ‘since 17 10/22/2015.’” (ECF No. 10 at 9). 18 Moser contends that “[t]he FAC twice expressly states that the calls at issue in this 19 case are new and were not part of the prior small claims actions with this Defendant.” (ECF 20 No. 13 at 7). Moser contends that Defendants “could have simply noticed a small claims 21 filing if any of the calls were overlapping, but they did not because they could not because 22 there is no overlap.” (Id.). 23 “The doctrine of claim preclusion (res judicata) provides that a final judgment on 24 the merits bars a subsequent action between the same parties or their privies over the same 25 cause of action.” FDIC v. Alshuler, 92 F.3d 1503, 1506 (9th Cir. 1996) (citing Davis & 26 Cox v. Summa Corp., 751 F.2d 1507, 1518 (9th Cir. 1985)). “Claim preclusion bars a party 27 in successive litigation from pursuing claims that ‘were raised or could have been raised in 28 [a] prior action.’” Media Rights Techs., Inc. v. Microsoft Corp., 922 F.3d 1014, 1020 (9th 1 Cir. 2019) (alteration in original) (quoting Owens v. Kaiser Found. Health Plan, Inc., 244 2 F.3d 708, 713 (9th Cir. 2001)); see United States ex rel. Barajas v. Northrop Corp., 147 3 F.3d 905, 909 (9th Cir. 1998) (“Res judicata bars relitigation of all grounds of recovery 4 that were asserted, or could have been asserted, in a previous action between the parties, 5 where the previous action was resolved on the merits. It is immaterial whether the claims 6 asserted subsequent to the judgment were actually pursued in the action that led to the 7 judgment; rather, the relevant inquiry is whether they could have been brought.” (citations 8 omitted)). 9 “Claim preclusion ‘applies when there is (1) an identity of claims; (2) a final 10 judgment on the merits; and (3) an identity or privity between the parties.’” Cell 11 Therapeutics, Inc. v. Lash Grp., Inc., 586 F.3d 1204, 1212 (9th Cir. 2009) (quoting Stewart 12 v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002)). 13 Whether the two suits involve the same claim or cause of action requires us to look at four criteria, which we do not apply mechanistically: (1) whether the two suits 14 arise out of the same transactional nucleus of facts; (2) whether rights or interests 15 established in the prior judgment would be destroyed or impaired by prosecution of the second action; (3) whether the two suits involve infringement of the same right; 16 and (4) whether substantially the same evidence is presented in the two actions. 17 18 Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985, 987 (9th Cir. 2005) (citing Chao v. A- 19 One Med. Servs., Inc., 346 F.3d 908, 921 (9th Cir. 2003)). “The party asserting a claim 20 preclusion argument ‘must carry the burden of establishing all necessary elements.’” 21 Garity v. APWU Nat’l Labor Org., 828 F.3d 848, 855 (9th Cir. 2016) (quoting Taylor v. 22 Sturgell, 553 U.S. 880, 907 (2008)). 23 In this case, Moser bases his TCPA violation claim on “seventeen pre-recorded and 24 auto-dialed telephone calls to Plaintiff . . . from between May 4, 2015, and October 21, 25 2019.” (ECF No. 7 ¶ 9). Moser alleges that he “filed the first of twenty-five small claims 26 actions in the San Diego Superior Court on or about March 5, 2015 . . . for alleged 27 violations of [the TCPA] . . . regarding the calls he received by defendant Life Watch INC.” 28 (Id. ¶ 27). Moser alleges that Lifewatch “settled the one matter . . . [but] Plaintiff continued 1 to receive more calls from Defendants even though he had requested to be put on their 2 internal do-not-call list.” (Id. ¶ 28). Moser alleges that he filed two more small claims 3 actions on October 22, 2015 “concerning calls not alleged in this complaint.” (Id. ¶ 29). 4 Moser alleges that he “has since filed twenty-two other small claims actions against some 5 or all of the Defendants of which six are on calendar for future trial, fifteen were 6 adjudicated in favor of Plaintiff by default and six of these have been satisfied through 7 collection efforts for calls not alleged in this case.” (Id. ¶ 32). 8 To state a claim for violation of the TCPA, a plaintiff need only allege facts from 9 which the court can infer that the defendant made a single call that violated the TCPA’s 10 provisions. See 47 U.S.C. § 227(b)(3) (“A person or entity may, if otherwise permitted by 11 the laws or rules of court of a State, bring in an appropriate court of that State—(A) an 12 action based on a violation of this subsection or the regulations prescribed under this 13 subsection to enjoin such violation[.]”). Moser alleges facts that, if true, support an 14 inference that Defendants made seventeen calls in violation of the TCPA. Five of the calls 15 alleged by Moser occurred after October 22, 2015, the last date certain that Moser alleges 16 he filed a small claims action. See Media Rights Techs., 922 F.3d at 1021 (“The rule in this 17 circuit, and others, is that ‘claim preclusion does not apply to claims that accrue after the 18 filing of the operative complaint’ in the first suit.” (quoting Howard v. City of Coos Bay, 19 971 F.3d 1032, 1039-40 (9th Cir. 2017)). The Court cannot infer from the facts alleged that 20 Moser could have brought a claim for every call alleged in the FAC in a previous action. 21 Defendants fail to “establish[ ] all necessary elements” of claim preclusion at this stage in 22 the litigation. Garity, 828 F.3d at 855 (quotation omitted). 23 Defendants Lifewatch and Medguard’s Motion to Dismiss the FAC is denied. 24 VI. CONCLUSION 25 IT IS HEREBY ORDERED that the Motion to Dismiss Plaintiff’s First Amended 26 Complaint filed by Defendant David Roman (ECF No. 9) is granted. The Complaint against 27 Defendant David Roman is dismissed without prejudice. The Motion to Dismiss Plaintiff’s 28 First Amended Complaint filed by Defendants Lifewatch, Inc., and Medguard Alert, Inc. 1 || ECF No. 10), is denied. Any request to file a motion for leave to amend the Complaint 2 || must be made within thirty (30) days from the date of this Order and comply with all federal 3 || and local rules. 4 || Dated: April 13, 2020 BME: ie Z. A a 5 Hon. William Q. Hayes 6 United States District Court 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28