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Wallach v. Whetstone Partners, LLC

United States District Court, E.D. Missouri, Eastern Division

July 26, 2016

ROGER W. WALLACH, individually and on behalf of all others similarly situated, Plaintiff,
v.
WHETSTONE PARTNERS, LLC, et al., Defendants.

          MEMORANDUM AND ORDER

          CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE.

         Plaintiff Roger Wallach alleges that he received an unwanted solicitation on his cell phone from defendants. He purports to bring claims against defendants under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227 et seq., for himself and on behalf of a nationwide class. Defendants move to dismiss plaintiff’s complaint for lack of personal jurisdiction under Fed.R.Civ.P. 12(b)(2). Plaintiff opposes dismissal and requests jurisdictional discovery. Because I lack personal jurisdiction over defendants, plaintiff’s complaint will be dismissed without prejudice, and the motion for discovery will be denied.

         Legal Standard: Rule 12(b)(2) Motion to Dismiss

         To survive a motion to dismiss for lack of personal jurisdiction, a plaintiff must make a prima facie showing of personal jurisdiction by pleading facts sufficient to support a “reasonable inference that the defendant[] can be subjected to jurisdiction within the state.” K-V Pharm. Co. v. J. Uriach & CIA, S.A, 648 F.3d 588, 59-92 (8th Cir. 2011); see also, Viasystems, Inc. v. EBM-Papst St. Georgen GmbH & Co., KG, 646 F.3d 589, 592 (8th Cir. 2011); Miller v. Nippon Carbon Co., Ltd., 528 F.3d 1087, 1090 (8th Cir. 2008); Dever v. Hentzen Coatings, 380 F.3d 1070, 1072 (8th Cir. 2004); Epps v. Stewart Info. Servs. Corp., 327 F.3d 642, 647 (8th Cir. 2003). A plaintiff’s prima facie showing “must be tested, not by the pleadings alone, but by affidavits and exhibits supporting or opposing the motion.” K-V Pharm., 648 F.3d at 592 (quoting Dever, 380 F.3d at 1072-73). I must view the evidence in a light most favorable to the plaintiff and resolve factual conflicts in the plaintiff's favor; however, plaintiff carries the burden of proof and that burden does not shift to defendants. Epps, 327 F.3d at 647.

         Background Facts

         Defendants Whetstone Partners, LLC and Whetstone Holdings, LLC (together, Whetstone) are Delaware limited liability companies based in Florida. Whetstone is not registered to do business in Missouri, does not conduct business in Missouri, and has no offices, property, or employees in Missouri. Nevertheless, plaintiff Roger Wallach has sued Whetstone in Missouri, claiming that Whetstone violated the TCPA by using an automatic dialing system to call him on his cell phone without his permission. Wallach alleges as follows:

20. On or about February 5, 2016, Wallach received a call on his cell phone in St. Louis County, Missouri from Whetstone Partners, Whetstone Holdings or someone acting on their behalf.
21. Upon answering the cell phone, Wallach heard a brief pause before hearing the voice of Whetstone Partners and/or Whetstone Holdings’ representative.
22. Whetstone Partners and/or Whetstone Holdings’ representative advised Wallach that they were interested in providing him a business loan. This phone call advertised Whetstone Partners and/or Whetstone Holdings’ products and services . . . .
24. The person acting on behalf of Whetstone Partners and/or Whetstone Holdings advised that the name of the company interested in providing the business loan to Wallach was “Price Funding.” The person further advised Wallach that the website for “Price Funding” was www.pricefunding.com and that the company was located at 2001 N.W. 107th Avenue in Miami, Florida.

         Wallach’s complaint goes on to allege that Whetstone’s offices are also located at 2001 N.W. 107th Avenue in Miami, Florida and that Price Funding’s website administrative contact is helpdesk@ws-hold.com. Based on that that allegation in the complaint, Wallach argues that the companies share the same website administrator.

         In support of their motion to dismiss, Whetstone provided the affidavit of Scott Crockett, the managing member of both Whetstone entities. In addition to explaining Whetstone’s lack of ties to Missouri, Crockett also avers that Whetstone does not own or use an automatic telephone dialing system and did not place a telephone call to Wallach’s telephone number, either directly or through Price Funding. (Doc. #21-1). Crockett further avers that Price Funding is a wholly owned subsidiary of Whetstone Holdings, but that is has separate employees and corporate formalities, including a separate profit and loss statement, an independent sales force, and its own loan management system which is not used by Whetstone. Price Funding also has its own phone system and customer service management software. However, Crockett consulted with Price Funding, which has no record of making a telephone call to Wallach’s number on the date alleged in the complaint.

         In opposition to dismissal, Wallach provided his own affidavit, in which he avers as follows:

6. One of the persons who spoke to me about the business loan advised me that the business address of the company was 2001 N.W. 107th Avenue in Miami, Florida. The person also advised me that the ...

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