United States District Court, E.D. Missouri, Eastern Division
GABRIELLE FIGUEROA and DAISY FRANKLIN, on behalf of themselves and Others similarly situated Plaintiffs,
EVERALBUM, INC., Defendant.
MEMORANDUM AND ORDER
L. WHITE, UNITED STATES DISTRICT JUDGE
matter is before the court on Defendant's Motion to
Dismiss or Transfer (ECF No. 20) and Defendant's Motion
for Attorneys' Fees and Costs (ECF No. 23). These matters
are fully briefed and ready for disposition.
Gabrielle Figueroa is a citizen of the State of New Jersey.
(Amended Complaint, ECF No. 17, ¶5). Plaintiff Daisy
Franklin is a citizen of the State of Missouri. (Amended
Complaint, ¶6). Defendant Everalbum, Inc.
("Ever") is a corporation organized under the laws
of the State of Delaware with its corporate headquarters in
San Francisco, California. (Amended Complaint, ¶7). It
owns and operates the Ever app, a photo sharing app that
allows users to conserve storage space on their Apple and
Android mobile devices by automatically backing up their
photos and videos and saving them to a cloud. After a new
user downloaded the app, the user could earn up to 1, 000 GB
of premium storage for free by inviting her friends and
family to also download the app. If the user wished to invite
someone, the app required the user to (i) grant the app
access to the user's contact list; (ii) either approve
the invitations to all the users contacts or, alternatively,
select which contacts, if any, to whom the user wished to
send an invitation; and (iii) affirmatively process a button
to cause invitation text messages to be sent to the
user's desired contacts. Plaintiffs' cause of action
arises out of allegedly unsolicited text messages that they
received inviting them to download Ever's photo storage
app for mobile devices.
Gabrielle Figueroa received an advertising text message on
October 27, 2016 at 11:02 a.m. on her cellular telephone that
stated: "Kathie Rose just recommended you check out your
photos on Ever. Link expires tomorrow: Tap to Load
Preview." (Amended Complaint, ¶42). Figueroa states
that she did not consent to receiving text messages from Ever
or its agent. (Amended Complaint, ¶43). Newly added
Plaintiff Daisy Franklin alleges that she received two
unsolicited text messages: one on October 22, 2016 and one on
October 23, 2016. On October 22, 2016, Franklin received a
text message: "Dana Kirksey just recommended you check
your photos on Ever. Click here: Tap to Load Preview."
(Amended Complaint, ¶61). On October 23, 2016, Franklin
received another text message: "Elatris Van Hook just
recommended you check your photos on Ever. Link expires
tomorrow: Tap to Load Preview." (Amended Complaint,
¶69). Plaintiffs claim that these text messages violated
the Telephone Consumer Protection Act, 47 U.S.C.
§§227 et seq. because it prohibits the use
of an automated telephone dialing system. ("ATDS").
Motion to Dismiss
Standard of Review
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 plaintiffs 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). The Court must view the
evidence in a light most favorable to the plaintiff and
resolve factual conflicts in the plaintiffs favor; however,
plaintiff carries the burden of proof and that burden does
not shift to defendants. Epps, 327 F.3d at 647;
Wallach v. Whetstone Partners, LLC, No. 4:16 CV 450
CDP, 2016 WL 3997080, at *1 (E.D. Mo. July 26, 2016).
process requires that a non-resident have minimum contacts
with the forum state such that the maintenance of the lawsuit
does not offend traditional notions of fair play and
substantial justice. World-Wide Volkswagen v.
Woodson, 444 U.S. 286, 291-92 (1980); Int'l Shoe
Co. v. Washington, 326 U.S. 310, 316 (1945);
Guinness Import Co. v. Mark VII Distribs., Inc., 153
F.3d 607, 614 (8th Cir. 1998). Minimum contacts is based on
the notion that "those who live or operate primarily
outside a State have a due process right not to be subjected
to judgment in its courts as a general matter." J.
Mclnlyre Mack, Ltd. v. Nicastro, 131 S.Ct. 2780, 2787
(2011). A defendant's contacts with the forum state must
be sufficient so that a non-resident defendant should
reasonably anticipate being haled into court there.
World-Wide Volkswagen, AAA U.S. at 297; Stanton
v. St. Jude Med, Inc., 340 F.3d 690, 694 (8th Cir.
2003); Epps, 327 F.3d at 648. Sufficient minimum
contacts requires some act by which the defendant
"purposely avails itself of the privilege of conducting
activities within the forum State, thus invoking the benefits
and protections of its laws." J. Mclntyre, 131
S.Ct. at 2787 (quoting Hanson v. Denckla, 357 U.S.
235, 253 (1958)); see Romak USA, Inc. v. Rich, 384
F.3d 979, 984 (8th Cir. 2004).
"purposeful availment requirement ensures that a
defendant will not be haled into a jurisdiction solely as the
result of random, fortuitous, or attenuated contacts or of
the unilateral activity of another party or a third
person." Stanton, 340 F.3d at 693-94 (quoting
Burger King v. Rvdzewicz, 471 U.S. 462, 475 (1985)).
"For a State to exercise jurisdiction consistent with
due process, the defendant's suit-related conduct must
create a substantial connection with the forum State."
Walden v. Fiore, 134 S.Ct. 1115, 1121 (2014). This
means that "the relationship must arise out of contacts
that the defendant himself creates with the forum
State." Id. at 1122 (quoting Burger
King, 471 U.S. at 475). Contacts between the plaintiff
and the forum State do not satisfy this inquiry.
Id., "Jurisdiction is proper, however, where
the contacts proximately result from actions by the defendant
himself that create a substantial connection with the forum
state." Stanton, 340 F.3d at 694 (quoting
Burger King, 471 U.S. at 475).
apply a five-factor test to determine the sufficiency of a
non-resident defendant's contacts with the forum state.
Dever, 380 F.3d at 1073. The five factors are: 1)
the nature and quality of contacts with the forum state; 2)
the quantity of the contacts; 3) the relation of the cause of
action to the contacts; 4) the interest of the forum state in
providing a forum for its residents; and 5) convenience of
the parties. Id. at 1073-74 (quoting Burlington
Indus., Inc. v. Maples Indus., Inc., 97 F.3d 1100, 1102
(8th Cir. 1996)). The Court gives significant weight to the
first three factors. Id., at 1074; Fastpath,
Inc. v. Arbela Techs. Corp., 760 F.3d 816, 821 (8th Cir.
Court holds that it lacks personal jurisdiction over
Defendant Ever and dismisses this action without prejudice.
There is no evidence that Ever has and any contact with
Missouri, let alone contacts sufficient to establish personal
jurisdiction in this case. Ever is a company headquartered in
San Francisco, California, with no offices, employees or
assets in Missouri. Ever is not registered to do business in
Missouri. Likewise, Plaintiffs' causes of action have no
connection to this jurisdiction. Plaintiffs offer bare
allegations in their Amended Complaint that Ever contacted
them, but these allegations are refuted by their own
allegations. Figueroa acknowledges that her invitation to use
Ever was initiated by Kathie Rose, her friend in New
Hampshire. Likewise, Franklin admits that her invitation to
use the Ever app was initiated by her friends Dana Kirksey
and Elatris Van Hook. See Perkins v. Linkedln Corp.,
53 F.Supp.3d 1190, 1215 (N.D. Cal. 2014) ("a reasonable
user would have understood that her name would be used in
invitations to join Linkedln that would be sent to her
contacts who were not already Linkedln users");
Pratt v, Everalbum, Inc., No. 17 C 1600, 2017 WL
4161685, at *3 (N.D. Ill. Sept. 20, 2017). This Court cannot
exercise personal jurisdiction over Ever simply because some
of Plaintiffs' friends utilized the invitation process
provided by Ever to invite Plaintiffs to use its app.
Therefore, the Court holds that it lacks sufficient contacts
with Ever and dismisses this action without prejudice.