United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE.
a putative class action filed by Swinter Group, Inc.
("Swinter"), seeking relief under the Telephone
Consumer Protection Act, 47 U.S.C. § 227
("TCPA"), for an allegedly unsolicited fax it
received. One of the two defendants,  Douglas Scott Kaiser, has
moved to dismiss for lack of jurisdiction. In turn, Swinter
has moved for jurisdictional discovery and for a stay of a
ruling on the motion to dismiss.
alleges in its amended complaint that Kaiser and Service of
Process Agents, Inc. ("SPA") - the other defendant
- sent an unsolicited advertisement to Plaintiffs telephone
facsimile machine in August 2015. (Am.Compl. ¶ 14, ECF
No. 26.) The faxed advertisement does not include a
"clear and conspicuous opt-out notice, " in
violation of the TCPA and 47 C.F.R § 64.1200(a)(4)(iii).
(Id. ¶¶ 23, 31.)
Scott Kaiser, a resident of Virginia, "performs work for
SPA." (Id. ¶10-11.) The fax at issue
informs the recipient, "'If you have any questions,
please feel free to call Doug or Nancy at
800-338-8893.'" (Id. Â¶ 16; Am.Compl. Ex.
1.) The "Doug" referred to is Kaiser. (Id.
¶ 17.) "Kaiser is the only person work[ing]
for SPA whose first name is 'Doug' or
'Douglas.'" (Id. Â¶ 18.) Additionally, a
subpage on SPA's website directs people to contact
"Douglas S. Kaiser" at the telephone number listed
on the fax if they have any questions about SPA's broker
services. (Id. ¶ 19.) A copy of SPA's home
page is attached as Exhibit 2 to the Amended Complaint and
simply reads, "Still have Questions? Please do not
hesitate to call us at 800-338-8883." (Id.
¶ 24 and Ex. 2.)
motion to dismiss, Kaiser argues that he does not have the
requisite minimum contacts with Missouri to satisfy due
process. Specifically, he avers that he is a resident of
Virginia; has never conducted business in, or travelled to,
Missouri; does not own, rent, or have an interest in property
in Missouri and has not done so; does not hold a professional
license issued by Missouri and has not done so; and is not
employed by a company incorporated or doing business in
Missouri. (Kaiser Mem. Ex. at ¶¶ 4, 17-21, ECF No.
13.) Also, he is not an employee, owner, officer, director,
manager, supervisor, or team leader for SPA; he is not an
investor, creditor, partner, or joint venturer with SPA; and
he has never drafted or sent any advertising faxes by or on
behalf of SPA, nor has he participated in doing so.
(Id. Â¶Â¶ 3, 11-12, 16.) He is an independent
contractor working part-time for SPA. (Id. ¶
9.) He answers SPA's phone lines. (Id.)
seeks discovery relating to Kaiser's averments and to
"uncover evidence not addressed in Kaiser's
declaration." (PL's Mot. at 2, ECF No. 16.)
decision whether to grant jurisdictional discovery in a case
is left to the trial court's sound discretion."
Clockwork IP, LLC v. Clearview Plumbing & Heating
Ltd., 127 F.Supp.3d 1020, 1030 (E.D. Mo. 2015) (interim
quotations omitted). "Numerous cases hold that district
courts have the discretion to deny jurisdictional discovery
when ... the complaint fails to make a prima facie case of
personal jurisdiction." Id.
Missouri's long-arm statute, the exercise of personal
jurisdiction over Kaiser must be permissible under the due
process clause. See Aly v. Hanzada for Import &
Export Co., 864 F.3d 844, 849 (8th Cir.
2017). To determine whether it is, "this [C]ourt
considers five factors '(1) the nature and quality of the
contacts with the forum state; (2) the quality of those
contacts; (3) the relationship of those contacts with the
cause of action; (4) Missouri's interest in providing a
forum for its residents; and (5) the convenience or
inconvenience to the parties.'" Id.
(quoting Eagle Tec. v. Expander Americas, Inc., 783
F.3d 1131, 1136 (8th Cir. 2015)). Based on the
averments in Kaiser's affidavit, consideration of these
factors seems to militate against the assertion of personal
jurisdiction over Kaiser. Swinter, however, urges this Court
to allow it to engage in discovery relating to those
support of its motion, Swinter cites 1st
Tech., LLC v. Digital Gaming Solutions, 71 Fed.R.Serv.3d
1399, 2008 WL 4790347 (E.D. Mo. 2008). Swinter's
reliance on this case is misplaced. The plaintiff in
1st Technology brought a patent
infringement case against seven companies, including a
company in Norway, the chairman of which submitted an
affidavit detailing the company's lack of any contacts
with the State of Missouri. Id. at * 1. The
plaintiff contended that the Norway company's website
provided interactive links to an allegedly infringing website
of the company's subsidiary. Id. The latter
website was interactive, accessible in Missouri, and included
several references to the Norway company. The court held that
"[j Jurisdictional discovery is appropriate where the
existing record is inadequate to support personal
jurisdiction, but the plaintiff demonstrates it can
supplement it jurisdictional allegations through discovery.
Jurisdictional discovery is also appropriate where the
parties dispute the relevant facts surrounding the
jurisdictional issue, or where the parties have not made a
satisfactory showing of the relevant facts."
Id. at *6 (interim citations omitted). Noting that
the plaintiff "had pointed to some ambiguity" about
the Norwegian's company's ownership and supervision
of the allegedly infringing website, the court allowed
jurisdictional discovery on the limited issue of the
relationship between the two. Id.
instant case, however, without pointing to any
ambiguity in Kaiser's affidavit, Swinter seeks discovery
on the veracity of the affidavit, on "whether Kaiser was
aware SPA was involved in a junk-fax campaign, " on any
prior knowledge of Kaiser of such a campaign, and whether he
demonstrated apparent authority or ratified such campaign.
Swinter adds that the foregoing "are but [a] few of the
relevant topics Plaintiff Swinter seeks to discover."
(PI. Mem. at 4, ECF No. 4.)
court in 1st Technology further held
that, "[j]urisdictional discovery is inappropriate when
the plaintiff pushes for jurisdiction based only on bare
assertions. Where a plaintiffs claim of personal jurisdiction
appears to be both attenuated and based on bare allegations
in the face of specific denials made by defendants, the Court
need not permit even limited discovery." Id. at
*6 (interim citations and quotations omitted).
alleges only that Kaiser works for SPA and his first name is
given on the complained-of fax as someone to call. The first
name of "Nancy" is also given on that fax. And, on
the copy of the website attached to the amended complaint,
only a phone number is given as a contact if there are any
questions. The allegations cited in Swinter's supporting
memorandum are in its original complaint and simply refer to
"Defendants." "Defendants" then included
the ten "John Does." The allegations are not, as