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Taylor v. KC VIN, LLC

United States District Court, W.D. Missouri, Western Division

December 3, 2019

MCKENZI TAYLOR, individually and on behalf of all others similarly situated, Plaintiff,



         Before the Court is Defendants' motion to dismiss Plaintiff's first amended class action Complaint alleging violations of the Telephone Consumer Protection Act. Doc. 40. Defendants KC VIN, LLC, d/b/a Pizza Bar, Entertainment Consulting International, LLC, and the Cordish Companies, Inc., assert Plaintiff's claims should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(2) and (6), for lack of personal jurisdiction and failure to state a claim. For the reasons discussed below, Defendants' motion to dismiss is denied.[1] Plaintiff's motion for leave to file supplemental authority, Doc. 74, is denied as moot.

         I. BACKGROUND

         a. The Telephone Consumer Protection Act

         In 1991, Congress enacted the Telephone Consumer Protection Act in response to concerns from constituents over intrusive and unwanted telephone calls from telemarketers. Pub. L. No. 102-243, 105 Stat. 2394. The TCPA targeted automated or prerecorded calls and directed the Federal Communications Commission to implement rules consistent with the statute's goals. Id. The purpose of the statute was “to protect residential telephone subscriber privacy rights by restricting certain commercial solicitation and advertising uses of the telephone and related telecommunications equipment.” H. R. Rep. No. 102-317, at 5 (1991).

         The TCPA prohibits “any person within the United States, or any person outside the United States if the recipient is within the United States” from using an automated telephone dialing system (ATDS) to make a non-emergency call without the prior express consent of the recipient. 47 U.S.C. § 227(b)(1). A text message qualifies as a “call” within the scope of the Act. Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663, 667 (2016), as revised (Feb. 9, 2016). Though the TCPA does not define “person, ” the Communications Act, which the TCPA amended, states “[t]he term ‘person' includes an individual, partnership, association, joint-stock company, trust or corporation.” 47 U.S.C. § 153(39). The TCPA defines an ATDS as “equipment which has the capacity-(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). In 2015, Congress amended the ATDS definition by adding an exemption for calls “made solely to collect a debt owed to or guaranteed by the United States.” Bipartisan Budget Act of 2015, Pub. L. No. 114-74, §301(a), 129 Stat. 584 (2015).

         In addition to regulating the use of an ATDS, the TCPA also directed the FCC to engage in rulemaking regarding “the need to protect residential telephone subscribers' privacy rights to avoid receiving telephone solicitations to which they object.” 47 U.S.C. § 227(c)(1)-(2). Exempted from the statute's definition of “telephone solicitation” are calls or messages “by a tax exempt nonprofit organization.” 47 U.S.C. § 227(a)(4)(C). The FCC has subsequently promulgated regulations imposing liability for making telephone solicitations to persons who register their number with the national do-not-call registry, using the same definition of “telephone solicitation” included in the TCPA. 47 C.F.R. § 64.1200(c)(2). The FCC has also promulgated regulations prohibiting initiating “any call for telemarketing purposes to a residential telephone subscriber unless such person or entity has instituted procedures for maintaining a list of persons who request not to receive telemarketing calls made by or on behalf of that person or entity, ” and prescribing certain minimum standards for such internal procedures, but exempting tax-exempt nonprofit organizations from its scope. 47 C.F.R. § 64.1200(d).

         The TCPA also provides for a private right of action for violations of the § 227(b) ATDS prohibition and its corresponding regulations, 47 U.S.C. §227(b)(3), as well as a private right of action for violations of the regulations prescribed pursuant to § 227(c), 47 U.S.C. § 227(c)(5).

         b. The Current Litigation

         Plaintiff McKenzi Taylor brings a class action suit against Defendants. The first amended Complaint states that between July 30, 2014, and April 4, 2018, Plaintiff and putative class members received text messages that they had not consented to from Defendants advertising Pizza Bar's products and services.

         Defendants are KC VIN, LLC, d/b/a Pizza Bar (“Pizza Bar”), a limited liability company with its principal place of business in Kansas City, Missouri; the Cordish Companies, Inc. (“Cordish”), a Maryland corporation with its principal place of business in Maryland; and Entertainment Consulting International, LLC (“ECI”), a Maryland limited-liability company with its principal place of business in Maryland. Pizza Bar is a drinking establishment located within the Kansas City Live! entertainment block of the Kansas City Power & Light District, which is a retail, entertainment, office, and residential district located in downtown Kansas City, Missouri. Plaintiff alleges that Cordish and ECI effectuate and oversee all, or substantially all, of the marketing decisions of Pizza Bar and other venues, and that in that capacity Defendants have caused promotional text messages and calls to be made to Plaintiff using the ATDS systems SendSmart and Txt Live! without consent.

         Plaintiff has alleged two counts against all Defendants and defined a putative class corresponding to each count:

• Count I (the “227(b)(1)(A)(iii) Class”) - violations of 47 U.S.C. § 227(b)(1)(A)(iii) for using an ATDS to send text messages without consent;
• Count II (the “64.1200(d) Class”) - violations of 47 U.S.C. § 227(c) and 47 C.F.R. § 64.1200(d) for failing to implement adequate procedures to prevent calls or text messages to persons who request not to receive calls or text messages by that entity.

         Plaintiff and the putative classes seek statutory damages for each violation as well as injunctive relief against future calls pursuant to 47 U.S.C. § 227(b)(3).

         Defendants ECI, Cordish, and Pizza Bar together file a motion to dismiss. Defendants ECI and Cordish move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction. All Defendants move to dismiss pursuant to Rule 12(b)(6) for failure to state a claim, asserting that the statute upon which Plaintiff's claims rely contain unconstitutional provisions that are not severable. Specifically, Defendants assert that by exempting calls made pursuant to a federal government debt from the definition of ATDS, by exempting government speakers from ATDS prohibitions, and by exempting non-profits from the definition of telephone solicitation and from prohibitions on certain calls made for telemarketing purposes, the TCPA places content-based restrictions on free speech that cannot survive strict scrutiny and are therefore in violation of the First Amendment and Equal Protection. Moreover, they argue the statutory definition of “ATDS” is unconstitutionally vague in violation of the Fifth Amendment Due Process Clause.

         Federal Rule of Civil Procedure 24 permits a non-party to intervene when the non-party “is given an unconditional right to intervene by a federal statute.” Fed.R.Civ.P. 24(a). Rule 5.1(c) permits the United States Attorney General to intervene in an action where the constitutionality of a federal statute is challenged. Fed.R.Civ.P. 5.1(c). Accordingly, the Attorney General (the “Government”) has intervened in this action for the purpose of defending the constitutionality of the TCPA.


         Defendants Cordish and ECI move to dismiss the first amended Complaint, arguing the Court lacks personal jurisdiction over them as non-resident entities. In response, Plaintiff asserts that both ECI and Cordish have the requisite minimum contacts with Missouri to make personal jurisdiction proper, and that in the alternative, Pizza Bar's contacts with Missouri can be imputed to them through an alter-ego or agency theory.[2]

         To survive a motion to dismiss for lack of personal jurisdiction, “a plaintiff must make a prima facie showing that personal jurisdiction exists, which is accomplished by pleading sufficient facts 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, 591-92 (8th Cir. 2011) (internal quotations omitted). “The allegations in the Complaint must be taken as true to the extent they are uncontroverted by the defendant's affidavits. If the parties present conflicting affidavits, all factual disputes are resolved in the plaintiff's favor, and the plaintiff's prima facie showing is sufficient notwithstanding the contrary presentation by the moving party.” Cantrell v. Extradition Corp. of Am., 789 F.Supp. 306, 308-09 (W.D. Mo. 1992); see also Dever v. Hentzen Coatings, Inc., 380 F.3d 1070, 1076 (8th Cir. 2004). Although “[t]he evidentiary showing required at the prima facie stage is minimal, ” Johnson v. Arden, 614 F.3d 785, 794 (8th Cir. 2010) (quotations omitted), it “must be tested, not by the pleadings alone, but by the affidavits and exhibits” supporting or opposing the motion to dismiss, Dever, 380 F.3d at 1072 (quotations omitted).

         For non-residents ECI and Cordish to be subject to personal jurisdiction in Missouri, personal jurisdiction must be proper under both the Missouri long-arm statute and the Due Process Clause. Where, as here, a court's subject matter jurisdiction is based upon a federal statute that is silent regarding service of process, the Court “may exercise personal jurisdiction only to the extent permitted by the forum state's long-arm statute.” Velez v. Portfolio Recovery Assocs., Inc., 881 F.Supp.2d 1075, 1082 (E.D. Mo. 2012). In relevant part, Missouri's long-arm statute authorizes personal jurisdiction over defendants who transact business or commit a tort within the state, as to any cause of action arising from the commission of such acts. Mo. Rev. Stat. § 506.500.1. “A person or firm transacts business by visiting Missouri or sending its product or advertising here.” Dairy Farmers of Am., Inc. v. Bassett & Walker Int'l, Inc., 702 F.3d 472, 476 (8th Cir. 2012). Missouri courts have interpreted the “tortious act” prong to include “[e]xtraterritorial acts that produce consequences in the state.” Bryant v. Smith Interior Design Grp., Inc., 310 S.W.3d 227, 232 (Mo. 2010). These categories are construed broadly, such that if a defendant commits one of the acts specified in the long-arm statute, the statute will be interpreted “to provide for jurisdiction . . . to the full extent permitted by the [D]ue [P]rocess [C]lause.” Viasystems, Inc. v. EBM-Papst St. Georgen GmbH & Co., 646 F.3d 589, 593 (8th Cir. 2011) (quotations omitted).

         To satisfy due process a defendant must have “sufficient minimum contacts” with the forum state so as not to “offend traditional notions of fair play and substantial justice.” Romak USA, Inc. v. Rich, 384 F.3d 979, 984 (8th Cir. 2004) (quotations omitted). Personal jurisdiction can be specific or general.[3] For specific jurisdiction to exist, “the injury giving rise to the lawsuit [must have] occurred within or had some connection to the forum state, meaning that the defendant[s] purposely directed [their] activities at the forum state and the claim arose out of or relates to those activities.” Johnson, 614 F.3d at 795 (citation omitted). In determining whether a nonresident defendant's contacts with Missouri are sufficient to subject it to personal jurisdiction, the Court considers five factors, the first three of which are the most important: “(1) the nature and quality of the contacts with the forum state; (2) the quantity of the contacts; (3) the relationship of the cause of action to the contacts; (4) the interest of [the forum state] in providing a forum for its residents; and (5) the convenience or inconvenience to the parties.” Id. at 794.

         Although “[e]ach defendant's contacts with the forum State must be assessed individually, ” Calder v. Jones, 465 U.S. 783, 790 (1984), “[n]aturally, the parties' relationships with each other may be significant in evaluating their ties to the forum, ” Rush v. Savchuk, 444 U.S. 320, 332 (1980).

         a. Whether Plaintiff has made a prima facie showing that ECI and Cordish fall within the Missouri long-arm statute

         As an initial matter, Plaintiff has made a prima facie showing that ECI's and Cordish's alleged conduct giving rise to Plaintiff's cause of action falls within the Missouri long-arm statute.[4] Plaintiff has alleged Defendants “transact significant amounts of business within this District, ” Doc. 24, ¶ 8, and provided evidence that ECI and Cordish maintain offices and officers or employees in Kansas City, and that ECI is registered as a foreign limited liability corporation with the state of Missouri and has executed an operating agreement with Pizza Bar to provide marketing services. See Doc. 54, pp. 4-9. Plaintiff has further alleged that all Defendants, including Cordish and ECI, and/or their agents, utilized SendSmart and Txt Live! to send unconsented text messages in Missouri to advertise the services of Pizza Bar to the putative class using an ATDS, giving rise to this cause of action. See Doc. 24, ¶¶ 48-60. These allegations sufficiently state a claim of a tortious act that has produced in-state consequences under the TCPA.

         Defendants have not argued the behavior alleged here falls outside of the scope of Missouri's long-arm statute. The affidavits they present do not rebut Plaintiff's contention that they have transacted business in Missouri or that their actions, even if extraterritorial, may have produced consequences in the state. To the extent that the affidavit presented by Defendants stating that Cordish is a “passive company” without employees may imply it could not engage in tortious conduct, this is countered by Plaintiff's showing that Cordish owns and manages businesses around the country, and the Court must resolve this factual conflict in the nonmovant's favor at this stage of the proceedings. Therefore, Plaintiff has made a prima facie showing that Defendants' conduct falls within the scope of the Missouri long-arm statute. See Schwartz & Assocs. v. Elite Line, Inc., 751 F.Supp. 1366, 1369 (E.D. Mo. 1990) (finding allegations that a Defendant fraudulently induced Missouri plaintiff to perform legal services from out-of-state were sufficient to support exercise of personal jurisdiction under the Missouri long-arm statute); KCI Auto Auction, Inc. v. Anderson, No. 5:17-CV-06086-NKL, 2018 WL 665313, at *4 (W.D. Mo. Feb. 1, 2018) (“KCI argues that the consequences of Anderson's tortious acts were primarily felt by KCI, in Missouri. Anderson has provided no defense, and thus KCI presents a sufficient prima facie showing that Anderson is within the reach of Missouri's long-arm statute.”) Because “‘the Missouri long-arm statute authorizes the exercise of jurisdiction over non-residents to the extent permissible under the due process clause,' this court considers ‘whether the assertion of personal jurisdiction would violate' due process.” Aly v. Hanzada for Imp. & Exp. Co., LTD, 864 F.3d 844, 849 (8th Cir. 2017) (quoting Eagle Tech. v. Expander Americas, Inc., 783 F.3d 1131, 1136 (8th Cir. 2015)).

         b. Whether Plaintiff has made a prima facie showing that ECI has sufficient minimum contacts with Missouri

         Defendants argue that ECI lacks sufficient minimum contacts with Missouri and thus should not be subject to personal jurisdiction here because none of the alleged conduct took place in Missouri as ECI is headquartered in Maryland, no ECI employee directly engaged in sending the text messages at issue, and ECI directs its consulting services to venues across the country, not specifically toward Missouri.[5] Therefore, ECI has not aimed its conduct into the forum state. Plaintiff responds that personal jurisdiction over ECI is proper because ECI was heavily involved in developing, instituting, and overseeing the data collection and text message campaigns carried out by Pizza Bar and other Kansas City Power & Light venues, including coordinating the SendSmart and Txt Live! programs and providing materials for data collection. Further, ECI is registered to do business in Missouri as a foreign limited liability corporation and has employees living and working out of Kansas City in concert with Kansas City Power & Light district venues, including Pizza Bar.

         As an initial matter, Defendants' assertion that because ECI is incorporated in Maryland, “none of their actions took place in Missouri” is unavailing. ECI's headquarters location does not prevent them from acting in other locations, and even if it did, the Supreme Court has “consistently rejected the notion that an absence of physical contacts can defeat personal jurisdiction there.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985).

         As to the nature, quality, and quantity of ECI's contacts with Missouri, Plaintiff has demonstrated a number of contacts between ECI and the state. She points to ECI's registration as a foreign limited liability company with Missouri; ECI employees who operate out of Kansas City and participated in the coordination of the SendSmart and Txt Live! programs with Kanas City Power & Light venues; ECI President Reed Cordish's appointment of an ECI employee as a non-managing member of Pizza Bar and other venues in the Kansas City Live! block of the Power & Light district who also participated in the coordination of marketing programs; testimony from a Kansas City Live! employee that she communicated with ECI employees as frequently as “daily” regarding marketing programs; testimony from a Kansas City Power & Light employee that he worked with two ECI employees to develop Txt Live!, and reported directly to an ECI Senior Vice President; the operating agreement between ECI and Pizza Bar stating the agreement was “negotiated, executed, delivered, and intended to be performed” in the Western District of Missouri, as the location of Pizza Bar; ECI's contract with a Kansas City software developer to create the Txt Live! program; testimony that the data cards venues used to collect contact information were provided to venues by ECI; and finally, a variety of emails between ECI employees, Kansas City Power & Light employees, and employees of individual venues including Pizza Bar, communicating policies with respect to marketing and implementation of the alleged ATDS systems at issue. See Doc. 54, pp. 4-9. These contacts demonstrate that ECI was in consistent communication with Kansas City Power & Light venues in order to develop, implement, and coordinate the SendSmart and Txt Live! systems, including having employees working from Kansas City and the President of ECI Reed Cordish signing off on the marketing programs being implemented. Doc. 54, pp. 7-8. These contacts are not random or fortuitous but purposeful and directed at the Missouri venues here, including Pizza Bar.

         As to the third factor, Plaintiff has also demonstrated a direct relationship between the contacts and the cause of action here. ECI executed an operating agreement with Pizza Bar in which it agreed to “provide web-based and paid advertising and marketing services [for Pizza Bar]”. Doc. 54, p. 11. Plaintiff alleges that “[a]mong the suite of services that ECI coordinates and directs for all Cordish bars and restaurants, including Pizza Bar, is the ability to mass text message potential customers.” Doc. 24, ¶ 43. Plaintiff also provides evidence that ECI was an account holder of SendSmart and the coordinator of Txt Live!, the two systems Plaintiff contends were used to send the messages at issue here. Doc. 54, pp. 6-7. The evidence Plaintiff cites indicates that ECI manages the website that venue employees use to upload consumer cell phone numbers and create text message campaigns, and that ECI developed and enforced the policies and procedures for executing text messaging campaigns and collecting lists of consumers' names and phone numbers for use in campaigns for Kansas City Power & Light venues, including Pizza Bar. Doc. 24, ¶¶ 44-46; Doc. 54, pp. 6-8. These are the campaigns that Plaintiff alleges she was contacted through. Though Defendants present an affidavit stating it was ECI's policy to not send text messages, Doc. 41-3, that ECI employees did not themselves send the text messages is not determinative of personal jurisdiction. Due process only requires the cause of action to arise out of or relate to a defendant's contacts with the forum state. Johnson, 614 F.3d at 795. Plaintiff's claim that she received text messages from Pizza Bar as part of mass text message campaigns directly relates to ECI's development and coordination of Pizza Bar's text message campaigns. Thus, the first three factors of the jurisdictional inquiry weigh in favor of the Court's exercise of specific personal jurisdiction over ECI.

         As to the final two factors, Plaintiff has provided evidence that Defendants sent almost thirty-thousand text messages to phones with Missouri area codes, some of which belong to class members. Doc. 54, p. 9. Missouri “obviously has an interest in providing a forum for [its] resident[s] . . .” K-V Pharm. Co., 648 F.3d at 595; see also Frank v. Gold's Gym of N. Augusta, No. CV 18-447(DSD/KMM), 2018 WL 3158822, at *3 (D. Minn. June 28, 2018) (finding it “generally true” that a forum state “has an interest in providing a forum for its citizens harmed by violations of the TCPA”). Plaintiff also contends the venue is convenient for all other parties because Pizza Bar, evidence, witnesses, ECI employees, and the bulk of the putative class are located in Missouri. Defendants do not argue otherwise. Therefore, these two factors support Plaintiff's prima facie showing.

         Plaintiff's uncontroverted allegations in conjunction with the evidence offered establish a prima facie showing that ECI has sufficient minimum contacts with Missouri. All five factors weigh in Plaintiff's favor, and Defendants' evidence does not diminish this showing. ECI purposefully directed its activities at Missouri when it registered to do business in Missouri, installed employees in Missouri, and substantially involved itself with developing and implementing, through consistent and prolonged communication with Pizza Bar and other Missouri venues, the alleged text message system at issue. ECI's contacts with Missouri are such that ECI “should reasonably anticipate being haled into court” here. Burger King Corp., 471 U.S. at 747. At this stage of the proceedings, Plaintiff has satisfied the “minimal” burden of making a prima facie showing that personal jurisdiction exists as to ECI. ECI's motion to dismiss for lack of personal jurisdiction is denied.

         c. Whether Plaintiff has made a prima facie showing that Cordish has sufficient minimum contacts with Missouri

         In their motion to dismiss, Defendants argue Cordish does not have sufficient minimum contacts with Missouri, because none of the alleged conduct took place in Missouri, Cordish does not have any employees and therefore could not have been engaged in sending text messages, and Cordish does not own any property but rather is a passive company with a “trade name [that] is often used to describe real estate developments located around the country”. Doc. 41, p. 8. Plaintiff argues personal jurisdiction over Cordish is proper, because not only did they participate in the oversight, development, and use of the ATDS as well as creation of the data collection policy used to promote Missouri venues to Missouri customers, but Cordish also has a physical presence in the state through its executives, office, and ownership interests located here.

         The only evidence Defendants provide to counter Plaintiff's allegations with respect to Cordish is the affidavit by Robert Fowler who is an attorney for CTR Management, Inc., a Maryland corporation that provides real estate development services, including to properties associated with Cordish. In relevant part, the Fowler affidavit states Cordish “is a passive company that does not have any employees and does not own any property, including in the state of Missouri, ” and that rather, “Cordish functions primarily as a trade name often used to describe real estate developments around the country, which are each owned by a separate and distinct legal entity.” Doc. 41-2. At this stage, the Court must take Plaintiff's allegations as true to the extent they are uncontroverted by Defendants' affidavits. Cantrell, 789 F.Supp. at 308-09. However, Plaintiff does not rely solely on allegations to support her contention that Cordish operates out of Kansas City and owns and manages businesses there; rather, she rests these allegations on Cordish's own statements asserting those facts.[6] See Doc. 24, ¶¶ 38-39; Doc. 54, pp. 5-6. In addition, Defendants' contention that “Cordish has no employees and therefore no individual could possibly be engaged in sending text messages, ” Doc. 41, p. 7, is countered to some degree by Plaintiff's showing that Cordish does have individuals working on its behalf in some capacity, including Cordish's website listing Reed Cordish as a Cordish principal and Nick Benjamin as a Cordish executive, as well as individuals using an email address with the domain. At this stage, the Court is required to resolve these factual conflicts in Plaintiff's favor.

         Turning to the minimum contacts analysis, with respect to the nature, quality, and quantity of Cordish's contacts with Missouri, Plaintiff has demonstrated a variety of contacts. Plaintiff produced evidence that Cordish claims to own and manage several developments in Missouri, including the Kansas City Power & Light District, citing to Cordish's website stating that it “owns and manages virtually every business it has created, ” as well as other Cordish statements claiming the Power & Light District as a “Development[] Owned and Managed, ” Doc. 24, ¶ 38-39, and listing Kansas City Live, LLC, which is a part of the Power & Light District, as well as Defendant KC VIN, LLC, as its “subsidiaries.” Id. at ¶ 11. Cordish's website also states that Cordish has a Kansas City office out of which it manages the Kansas City Live! entertainment block, and that Cordish has an executive operating out of Kansas City. Doc. 54, p. 5-6. Plaintiff points to multiple individuals with an email address utilizing the domain name who are also in prominent positions at ECI or Kansas City Power & Light, and who are in daily contact with an employee of Kansas City Power & Light about marketing strategies for local venues. Doc. 54, p. 6. Plaintiff further alleges Cordish and ECI have exclusive and complete control over Pizza Bar's operation, including its marketing and promotion, Doc. 24, ¶ 14, and that Cordish uses its self-proclaimed asset Txt Live! to provide mobile marketing services to Pizza Bar and other venues, Doc. 24, ¶ 43. These services include the ability to mass text message potential customers. Id.

         Plaintiff's showing concerning Cordish's relationship with ECI is also relevant. Though the Court does not impute ECI's contacts onto Cordish, the nature of Plaintiff's allegations about Cordish's organization indicate that “the parties' relationships with each other may be significant in evaluating their ties to the forum.” Rush, 444 U.S. at 332. Though Plaintiff acknowledges ECI is a separate entity, she alleges ECI was created by Cordish and functions “part and parcel of Cordish itself. Cordish uses [ECI], along with numerous holding corporations or ‘subsidiary entities,' such as Kansas City Live, LLC, to develop, implement, manage, and operate multiple entertainment district (and dozens of bars and restaurants within those districts) across the country, including Pizza Bar.” Doc. 24, ¶ 41. A principal of Cordish, Reed Cordish, is also the President of ECI and has overseen the development of the Txt Live! policies and software that Pizza Bar used. Doc. 54, p. 7-8. This assortment of contacts indicates that there are Cordish executives or affiliates working closely with, and even as a part of, both ECI and Kansas City Power & Light, and exercising control over the development and implementation of the messaging system and campaigns, all in the service of the entities Cordish claims to own and manage.

         It is true that generally, “telephone calls, written communications, and . . . wire-transfers to and from a forum state do not create sufficient contacts to comport with due process such that” a court can properly exercise personal jurisdiction over a foreign defendant. Eagle Tech. v. Expander Ams., Inc., 783 F.3d 1131, 1137 (8th Cir. 2015). However, Plaintiff has presented evidence of more than just calls, written communications, or wire-transfers. Rather, the evidence presented indicates Cordish may have a physical presence in Kansas City through its executive and office, and may own and manage Kansas City Power & Light and Kansas City Live!, the entertainment district that houses Pizza Bar. Taken together, Cordish's contacts permit the first two factors to weigh in favor of finding personal jurisdiction is proper over Cordish. Cf. Austad Co. v. Pennie & Edmonds, 823 F.2d 223, 226 (8th Cir. 1987) (holding personal jurisdiction was not proper over Defendant and finding of particular significance that defendant law firm “does not maintain an office in South Dakota nor do any of its attorneys reside there or maintain a license to practice law there, ” “never advertised or solicited business in South Dakota, ” and “did not actively seek out [the South Dakota plaintiff] as a client”).

         As to the third factor, specific jurisdiction requires that “the litigation results from alleged injuries that ‘arise out of or relate to' [Defendants'] activities.” Myers v. Casino Queen, Inc., 689 F.3d 904, 912-13 (8th Cir. 2012). The Eighth Circuit has “not restricted the relationship between a defendant's contacts and the cause of action to a proximate cause standard. Rather, we have said specific jurisdiction is warranted when the defendant purposely directs its activities at the forum state and the litigation ‘result[s] from injuries ... relating to [the defendant's] activities [in the forum state.]'” Id. (quoting Steinbuch v. Cutler, 518 F.3d 580, 586 (8th Cir.2008)).

         Cordish's own statements indicate it owns and manages Kansas City Power & Light and Kansas City Live!, entities which Plaintiff's exhibits demonstrate were involved in crafting and orchestrating the text message policies. Plaintiff also provides evidence that Cordish was an account holder of SendSmart, the first text messaging system allegedly used to send messages to consumers. Doc. 54, p. 6. Moreover, Plaintiff has shown individuals affiliated with Cordish were included in conversations with Pizza Bar on executing the text message campaign. Id. at 6- 7.

         Defendants contend that the contacts Plaintiff has demonstrated are “irrelevant” because “none of these purported contacts evidence any involvement by [ECI and Cordish] with the text messages allegedly sent to Plaintiff.” Doc. 57, p. 5. However, the “arise out of or relate to” standard is not so strict. In Myers, the Eighth Circuit found an Illinois casino's advertisements targeting customers in Missouri were sufficiently related to a tort action arising from injuries incurred after Plaintiff visited the casino, because although the “injuries did not arise out of Casino Queen's advertising activities in a strict proximate cause sense, his injuries are nonetheless related to Casino Queen's advertising activities because he was injured after responding to the solicitation.” Myers, 689 F.3d at 913. Plaintiff's assertion that Cordish, through and in concert with ECI and Pizza Bar, developed and executed a mass text messaging system to target Pizza Bar customers and expand their customer base “relates to” Plaintiff's cause of action claiming she and the putative class received a mass text message from Pizza Bar using that same system. Plaintiff provides emails between ECI, Pizza Bar, individuals with email addresses, Reed Cordish, and other Kansas ...

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