United States District Court, W.D. Missouri, Western Division
MCKENZI TAYLOR, individually and on behalf of all others similarly situated, Plaintiff,
KC VIN, LLC, d/b/a PIZZA BAR, THE CORDISH COMPANIES, INC., ENTERTAINMENT CONSULTING INTERNATIONAL, LLC, Defendants.
NANETTE K. LAUGHREY UNITED STATES DISTRICT JUDGE.
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. Plaintiff's motion for leave
to file supplemental authority, Doc. 74, is denied as moot.
The Telephone Consumer Protection Act
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).
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).
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.
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.
The Current Litigation
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.
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!
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.
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).
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.
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.
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
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).
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).
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. 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.
“[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).
Whether Plaintiff has made a prima facie showing that ECI and
Cordish fall within the Missouri long-arm statute
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. 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.
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)).
Whether Plaintiff has made a prima facie showing that ECI has
sufficient minimum contacts with Missouri
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. 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.
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).
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.
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.
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.
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
Whether Plaintiff has made a prima facie showing that Cordish
has sufficient minimum contacts with Missouri
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.
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. 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 @cordish.com
domain. At this stage, the Court is required to resolve these
factual conflicts in Plaintiff's favor.
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 @cordish.com 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.
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.
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
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)).
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.
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 @cordish.com email
addresses, Reed Cordish, and other Kansas ...