Pfister v. Selling Source, LLC
2013 U.S. Dist. LEXIS 38659
D. Nev.2013Background
- Pfister sues under TCPA alleging unsolicited text messages by LeadRev and Selling Source.
- Pfister is an Ohio resident; she claims a spam text from 240-529-8117; she does not allege Nevada residency or sending source in Nevada.
- LeadRev is a Delaware corporation with principal place in Florida; no Nevada offices; employees in Florida; not registered to do business in Nevada.
- Selling Source is a Delaware corporation with Nevada address for the owner; interacted with LeadRev in Nevada; maintains some corporate separation from LeadRev.
- Publisher agreement between LeadRev and publishers includes Nevada choice-of-law/forum selection and an arbitration provision, but Pfister is not a party to that agreement; Nevada is designated as default arbitration location, with potential mutually convenient alternatives.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether LeadRev is subject to personal jurisdiction in Nevada | Pfister contends LeadRev has sufficient forum contacts in Nevada. | LeadRev argues lack of general/specific jurisdiction; no Nevada offices or incidental contacts; arbitration clause does not bind Pfister. | No general or specific jurisdiction over LeadRev; jurisdiction absent. |
| Does the publisher arbitration/forum clause create consent to Nevada jurisdiction for Pfister's claims | Arbitration/forum clause shows LeadRev consent to Nevada by contract. | Arbitration clause is with nonparty publishers and does not bind Pfister; cannot establish purpose. | Arbitration/forum clause does not confer jurisdiction over LeadRev for Pfister's claims. |
| Should jurisdictional discovery be allowed | Discovery could uncover Nevada contacts; seek to establish jurisdiction. | Discovery requested is speculative; no basis to infer alter ego or agency with Selling Source. | Jurisdictional discovery denied. |
| Whether transfer under 28 U.S.C. § 1631 or 1406(a) is appropriate; and venue overall | If Nevada lack of jurisdiction, transfer to Florida would be appropriate. | Northern District of Florida is proper; venue improper in Nevada; transfer in interest of justice. | Case transferred to Northern District of Florida in the interest of justice. |
Key Cases Cited
- Unocal Corp. v. Gillette, 248 F.3d 922 (9th Cir. 2001) (prima facie jurisdiction standard for lack of personal jurisdiction)
- Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co., 284 F.3d 1114 (9th Cir. 2002) (due process governs Nevada long-arm jurisdiction)
- Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007 (9th Cir. 2002) (long-arm jurisdiction analysis under due process)
- Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797 (9th Cir. 2004) (three-prong test for specific jurisdiction)
- Harris Rutsky & Co. Ins. Servs., Inc. v. Bell & Clements Ltd., 328 F.3d 1122 (9th Cir. 2003) (purposeful availment and minimum contacts)
- Fireman’s Fund Insurance Co. v. National Bank of Cooperatives, 103 F.3d 888 (9th Cir. 1996) (arbitration clause cannot bind nonparties to jurisdiction)
- Freudensprung v. Offshore Tech. Servs., Inc., 379 F.3d 327 (5th Cir. 2004) (arbitration clause cannot establish jurisdiction over nonparties)
- Dow Chemical Co. v. Calderon, 422 F.3d 827 (9th Cir. 2005) (a party’s consent in one case does not bind another)
- Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218 (9th Cir. 2011) (highly interactive website does not create general jurisdiction)