Betz v. Aidnest

NAEEM BETZ, Plaintiff, v. AIDNEST, Defendant.

No. 1:18-cv-0292 (KBJ)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

October 26, 2018

MEMORANDUM OPINION ADOPTING REPORT & RECOMMENDATION OF THE MAGISTRATE JUDGE

Pro se plaintiff Na'eem Betz has filed the instant lawsuit against Aidnest ("Defendant"), a California student loan relief company, claiming that Aidnest violated the federal Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, when it placed multiple calls to Betz's cell phone between November 7, 2017, and December 5, 2017, even though his D.C. cell phone number was listed on the National Do Not Call registry. (See Compl., ECF No. 1 ¶¶ 1, 10, 19.) Betz contends that Aidnest's phone calls were a "direct invasion of privacy[,]"and that they caused him "emotional damage, extra electricity usage, extra battery usage[,] lost time, aggravation, and continued distress." (Id. ¶ 19.) After Aidnest failed to file a timely answer to Betz's complaint, Betz requested an entry of default (see Aff. For Default, ECF No. 5), which the Clerk entered on March 30, 2018 (see Entry of Default, ECF No. 6). On April 2, 2018, Betz filed a motion for entry of default judgment against Aidnest (see Pl.'s Mot. for Entry of Default J. ("Pl.'s Mot."), ECF No. 7), and this Court referred the matter to a magistrate judge for full case management. (See Minute Order of April 3, 2018; Minute Entry of April 3, 2018.)

On June 7, 2018, Magistrate Judge Harvey ordered Betz to show cause why his motion for default judgment should not be denied, and his action dismissed, for failure to establish that this Court has personal jurisdiction over Defendant. (See Order to Show Cause, ECF No. 9, at 3 (noting that Betz's submissions "fail[ed] to establish a prima facie showing demonstrating personal jurisdiction over Defendant").)¹ Magistrate Judge Harvey specifically pointed to Betz's failure to show that Aidnest (1) regularly does or solicits business in the District of Columbia, (2) engages in any persistent course of conduct in the District, or (3) derives substantial revenue from goods used or consumed, or services rendered, in the District. (See id. at 2.) The show-cause order required Betz to address this defect by setting out "the factual and legal basis for [his] belief as to why this Court has personal jurisdiction over Defendant." (Id. at 3.) Furthermore, to the extent that Betz alleged new facts in any response to the Order, Magistrate Judge Harvey instructed Betz to "aver these facts under oath or otherwise demonstrate them by admissible evidence." (Id.) On July 20, 2018, Betz responded to the Order and provided additional exhibits. (See Pl.'s Resp. to Order to Show Cause ("Pl.'s Resp."), ECF No. 11.)

Before this Court at present is the Report and Recommendation ("R&R") that Magistrate Judge Harvey filed on August 24, 2018, with respect to Betz's motion for a default judgment. (See R&R, ECF No. 12.)² The R&R reflects Magistrate JudgeHarvey's opinion that Betz's motion should be denied, and that Betz's complaint should be dismissed, for lack of personal jurisdiction. (See id. at 3-12.) The R&R evaluates Betz's submissions and concludes that Aidnest's alleged contact with the District of Columbia is insufficient to establish the requirements of D.C.'s long-arm statute, see D.C. Code § 13-423(a)(1)-(4), and in particular, that Betz failed to establish that Aidnest "(i) regularly does or solicits business in the District, (ii) engages in any other persistent course of conduct in this jurisdiction, or (iii) derives substantial revenue from goods used or consumed, or services rendered, in the District[,]" see id. § 13-423(a)(4); (R&R, at 8-12.) The R&R further informs the parties that either party may file written objections to its conclusions (see id. at 12-13), and that by failing to do so, the aggrieved party "may waive [its] right of appeal from an order of the District Court that adopts such findings and recommendation[s]." (Id. at 13 (citing Thomas v. Arn, 474 U.S. 140 (1985)).)

Under this Court's local rules, any party who objects to a report and recommendation of a magistrate judge must file a written objection with the Clerk of the Court within 14 days of the party's receipt of the report, and any such written objection must specify the portions of the findings and recommendations to which each objection is made and the basis for each such objection. See LCvR 73.2(b). As of the date of the instant Memorandum Opinion—nearly two months after Magistrate Judge Harvey's R&R was issued—Betz has not filed any such objection.

This Court has reviewed Magistrate Judge Harvey's report and recommendation, and agrees with its careful and thorough analysis and conclusions. In particular, the Court agrees that Betz's assertion that Aidnest called his cell phone to "solicit business" in the District—for the purposes of (a)(4)(i)—is defective on its face sinceBetz concedes that Defendant never left a message, making any effort to ascertain the purpose of these allegedly illegal telephone calls speculative at best. (See R&R, at 9.) Aidnest's status as a student loan forgiveness business, standing alone, does not necessarily establish that its phone calls were business solicitations. (See id. (citing Burman v. Phoenix Worldwide Industries, Inc., 437 F. Supp. 2d 142, 153-56 (D.D.C. 2006)).) Nor do "five-plus" phone calls from an out-of-state defendant constitute a "persistent course of conduct" in the District for the purposes of (a)(4)(ii). (See id. (citing Tavoulareas, 720 F.2d at 193-94 (quoting D.C. Code provisions)); see also id. at 11 (noting that a persistent course of conduct requires conduct "separate from and in addition to the in-state injury" (citing Crane, 814 F.2d at 762)).)

This Court also concurs with Magistrate Judge Harvey's rejection of Betz's contention that Aidnest used a District of Columbia area code to call his cell phone, since the area code alone does not prove a caller's location. (See id. at 10 (collecting cases).) And the fact that Aidnest directly targets consumers in the District via its online presence (website, Facebook page, and Twitter account) is insufficient under (a)(4)(i) or (a)(4)(ii) (see id. at 11-12), because use of online or web-based resources by District of Columbia residents does not constitute "purposeful availment" by a defendant for the purpose of the minimum contacts test; rather, it is an "unavoidable side-effect of modern internet technology." (See id. (citing Doe v. Israel, 400 F. Supp. 2d 86, 121 (D.D.C. 2005)).)

In short, Betz has failed to show that this Court has personal jurisdiction over Aidnest, and given the lack of any objection to Magistrate Judge Harvey's R&R, this appears to be a conclusion with which Betz himself agrees. As a result, the instant casefares no better than Betz's other unsuccessful attempts to bring TCPA claims against out-of-state-defendants.³

For all these reasons, Magistrate Judge Harvey's R&R is ADOPTED in its entirety. As a result, Betz's Motion for Entry of Default Judgment must be DENIED, and this case, too, must be DISMISSED.

A separate Order accompanies this Memorandum Opinion.

DATE: October 26, 2018

/s/_________

KETANJI BROWN JACKSON

United States District Judge

NAEEM BETZ Plaintiff,

v.

AIDNEST Defendant.

No. 1:18-cv-00292 (KBJ/GMH)

REPORT AND RECOMMENDATION

This matter was referred to the undersigned for a Report and Recommendation on Plaintiff Na'eem Betz's motion for default judgment. [Dkt. 7]. In this case, Plaintiff, a District of Columbia resident appearing pro se, seeks to recover damages from Aidnest ("Defendant") for its alleged violations of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227 et seq. [Dkt. 1, ¶ 1]. Upon consideration of Plaintiff's complaint, motion for default judgment, and the supporting affidavits and documentary evidence, the undersigned RECOMMENDS that Plaintiff's motion for default judgment be DENIED and that the complaint be DISMISSED for lack of personal jurisdiction over Defendant.

I. BACKGROUND

According to the facts alleged in the complaint and Plaintiff's motion for default judgment, Defendant, a California student loan relief company, called Plaintiff's cell phone number in the District of Columbia "five plus" times between November 7, 2017, and December 5, 2017, even though Plaintiff's cell phone number had been on the National Do Not Call registry since April 2012. [Dkt. 1, ¶¶ 10, 19]. Believing the calls constituted violations of the TCPA, on December20, 2017, Plaintiff called the phone number that had been calling him, and spoke to a call center customer service representative for Defendant who informed Plaintiff that his cell phone number was collected by "some type of contact made online through some third party by internet searching or browsing." Id. at ¶ 19. The customer service representative agreed to remove Plaintiff's cell phone number from Defendant's dialing system. Id.

Two months later, Plaintiff filed this lawsuit against Defendant alleging violations of the TCPA. In his complaint, he contends that the calls caused him "emotional damage, extra electricity usage, extra battery usage, . . . lost time, aggravation, and continued distress," and that they were "a direct invasion of privacy."⁴ [Dkt. 1 at ¶ 19]. On February 12, 2018, Defendant was served with the compliant via certified mail. [Dkt. 4; Dkt. 4-1, Ex. E]; Fed. R. Civ. P. 4(h). When Defendant failed to file an answer within 21 days as required by Federal Rule of Civil Procedure 12(a)(1)(A), Plaintiff requested an entry of default. [Dkt. 5]. On March 30, 2018, the Clerk entered default. [Dkt. 6]. On April 2, 2018, Plaintiff filed the instant motion seeking entry of a default judgment. [Dkt. 7]. To date, Defendant has failed to file any response to the complaint or Plaintiff's motion for default judgment.

II. LEGAL STANDARD

A default judgment is normally available where "the adversary process has been halted because of an...