416 F.Supp.3d 580
N.D.W. Va.2019Background
- Plaintiff Diana Mey, a West Virginia resident, alleges she received 25 unsolicited calls to her West Virginia phone number over four months in 2018 in violation of the National Do Not Call registry and brings claims under the TCPA, WVCCPA, WVCCAA, West Virginia UTPA, and for intentional infliction of emotional distress.
- Defendant Judson Phillips (pro se) was served, removed the case to federal court, and filed a motion to dismiss under Fed. R. Civ. P. 12(b)(2) (lack of personal jurisdiction) and 12(b)(6) (failure to state a claim).
- Mey opposed, arguing personal jurisdiction and venue are proper in the Northern District of West Virginia, that Phillips waived jurisdictional defenses by filing late under Rule 81(c)(2), and that her complaint sufficiently pleads direct and vicarious liability.
- The court found Phillips’s motion untimely under Rule 81(c)(2) but exercised discretion to reach the merits rather than dismiss on procedural grounds.
- On the merits the court denied Phillips’s 12(b)(6) motion, holding the complaint plausibly states the enumerated claims, and denied the 12(b)(2) motion, finding specific personal jurisdiction based on the alleged calls into West Virginia; venue was found proper under 28 U.S.C. § 1391(b)(2).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness / waiver of jurisdictional defense | Mey: Phillips waived personal jurisdiction and venue defenses by filing his motion after the Rule 81(c)(2) deadline | Phillips: filed motion June 14; argues merits regardless of timing | Motion was untimely, but court declined to dismiss on procedural grounds and reached the merits |
| Failure to state a claim (Rule 12(b)(6)) | Mey: Complaint pleads sufficient facts to give fair notice for TCPA, WVCCPA, WVCCAA, UTPA, IIED | Phillips: Allegations are speculative and lack factual acts tying him to the communications | Complaint deemed plausible and sufficiently specific; 12(b)(6) denied |
| Personal jurisdiction (Rule 12(b)(2)) | Mey: Sending unsolicited calls into WV (25 calls) constitutes purposeful availment and supports specific jurisdiction | Phillips: No contacts with WV; never transacted business or derived income there | Specific jurisdiction exists based on alleged calls; exercise of jurisdiction is reasonable |
| Venue / transfer | Mey: Northern District of WV is proper where a substantial part of events occurred (calls received in Ohio County) | Phillips: alternatively argued transfer (or challenged venue) | Venue proper under 28 U.S.C. § 1391(b)(2); transfer denied |
Key Cases Cited
- Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250 (4th Cir. 2009) (pleading standard—accept well‑pled facts but not legal conclusions)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (legal conclusions not entitled to the assumption of truth)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (complaint must state a plausible claim for relief)
- Int'l Shoe Co. v. Washington, 326 U.S. 310 (1945) (minimum contacts / due process for personal jurisdiction)
- Owens-Illinois, Inc. v. Rapid Am. Corp. (In re The Celotex Corp.), 124 F.3d 619 (4th Cir. 1997) (plaintiff bears burden to prove jurisdiction; West Virginia long‑arm reaches full due process limits)
- Carefirst of Md., Inc. v. Carefirst Pregnancy Centers, Inc., 334 F.3d 390 (4th Cir. 2003) (framework for specific vs. general jurisdiction)
- ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707 (4th Cir. 2002) (factors for purposeful availment and specific jurisdiction)
- Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408 (1984) (continuous and systematic contacts for general jurisdiction)