United States District Court, E.D. Missouri, Eastern Division
ROGER W. WALLACH, individually and on behalf of all others similarly situated, Plaintiff,
WHETSTONE PARTNERS, LLC, et al., Defendants.
MEMORANDUM AND ORDER
CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE.
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
Standard: Rule 12(b)(2) Motion to Dismiss
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
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
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.
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 email@example.com. Based on that that
allegation in the complaint, Wallach argues that the
companies share the same website administrator.
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.
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 ...