Keim v. ADF MidAtlantic, LLC
199 F. Supp. 3d 1362
S.D. Fla.2016Background
- Plaintiff Brian Keim, a Florida resident, received unsolicited Pizza Hut text messages in Florida and brought a TCPA class action against Pizza Hut and several related ADF Companies, including three non-Florida entities (the Moving Defendants).
- The ADF Companies jointly market stores and hired third-party text-marketing vendors (Songwhale and later Cellit) to run national SMS campaigns; the vendors collected and sent text messages to phone numbers (including Florida numbers).
- Keim alleges the vendors acted as agents of the ADF Companies, so the Moving Defendants are vicariously liable for the allegedly unlawful texts under the TCPA.
- The Moving Defendants moved to dismiss for lack of personal jurisdiction; the court allowed jurisdictional discovery and addressed whether Florida’s long-arm statute and due process permit jurisdiction.
- The court found the tortious-act long-arm provision satisfied because the texts were tortious acts directed into Florida (attributed via agency), and that exercising specific jurisdiction also satisfies due process under the “effects” test.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Florida's long-arm statute reaches TCPA claims based on texts sent into Florida | Keim: texts sent into Florida by vendors (agents) are tortious acts in Florida and thus invoke Fla. Stat. § 48.193(1)(a)(2) | Moving Defs: they do not operate in Florida and had nothing to gain; texts to Florida cannot establish long-arm jurisdiction | Held: Yes — tortious-act provision applies; agency attribution brings vendors’ texts to Moving Defs, satisfying the long-arm statute |
| Whether agency/vicarious liability can be used to attribute agents’ torts to nonresident defendants for jurisdictional purposes | Keim: vendors acted as agents of all ADF Companies; TCPA incorporates agency principles | Moving Defs: challenge attribution and relevance to jurisdiction | Held: Agency principles apply; Fla. long-arm expressly covers acts done "personally or through an agent," so agency suffices to attribute acts |
| Whether specific jurisdiction satisfies due process for texts sent to a Florida number | Keim: texts were intentional, aimed at Florida (national campaign included Florida numbers), and caused foreseeable harm in Florida (effects test) | Moving Defs: receipt in Florida was fortuitous; burden of defending here is undue | Held: Effects test satisfied (intentional, aimed at forum, foreseeable harm); traditional notions of fair play and substantial justice weigh in favor of jurisdiction |
| Whether plaintiff must show additional contacts (e.g., owning Florida stores) to obtain jurisdiction | Keim: not necessary when tortious communications are aimed at forum and agents sent texts there | Moving Defs: absence of Florida operations undermines jurisdiction | Held: Irrelevant — ownership of Florida stores is not required once tortious acts into Florida are established via agency |
Key Cases Cited
- Posner v. Essex Ins. Co., 178 F.3d 1209 (11th Cir.) (plaintiff’s prima facie burden on personal jurisdiction)
- Internet Solutions Corp. v. Marshall, 557 F.3d 1293 (11th Cir.) (defendant must make meritorious jurisdictional challenge; burden-shifting)
- Madara v. Hall, 916 F.2d 1510 (11th Cir.) (accept complaint allegations unless controverted)
- Stubbs v. Wyndham Nassau Resort & Crystal Palace Casino, 447 F.3d 1357 (11th Cir.) (construe inferences in plaintiff’s favor)
- Wendt v. Horowitz, 822 So.2d 1252 (Fla.) (tort by telephonic/electronic communication into Florida satisfies long-arm)
- Meier ex rel. Meier v. Sun Int’l Hotels, Ltd., 288 F.3d 1264 (11th Cir.) (agency relevant to jurisdiction)
- Louis Vuitton Malletier S.A. v. Mosseri, 736 F.3d 1339 (11th Cir.) (three-part specific-jurisdiction test; effects test articulation)
- Licciardello v. Lovelady, 544 F.3d 1280 (11th Cir.) (fair play and substantial justice factors)
- Calder v. Jones, 465 U.S. 783 (U.S.) (effects test for purposeful availment)
- Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110 (11th Cir.) (courts must accept FCC interpretations of the TCPA)