Cunningham v. Nationwide Sec. Solutions, Inc.

CRAIG CUNNINGHAM, Plaintiff, v. NATIONWIDE SECURITY SOLUTIONS, INC., ET AL., Defendants.

No. 3:17-cv-337-S-BN

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

August 31, 2018

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

This case has been referred to the United States magistrate judge for pretrial management pursuant to 28 U.S.C. § 636(b) and a standing order of reference from United States District Judge Karen Gren Scholer.

Defendant Nationwide Security Solutions, Inc. ("Nationwide") has filed its First Motion to Dismiss Second Amended Complaint, Alternatively, Motion to Strike Second Amended Complaint. See Dkt. No. 101.

Plaintiff Craig Cunningham has filed a response. See Dkt. No. 105. Nationwide has not filed a reply, and its time to do so has passed. See Dkt. No. 103.

Defendant Micah Davis has filed a Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(2), (b)(6) and Joinder in Nationwide's Motion to Dismiss for Improper Venue. See Dkt. No. 112.

Plaintiff Craig Cunningham has filed a response, see Dkt. No. 116, and Defendant Davis has filed a reply, see Dkt. No. 118.

For the reasons and to the extent explained below, the Court should deny Defendant Nationwide's First Motion to Dismiss Second Amended Complaint, Alternatively, Motion to Strike Second Amended Complaint [Dkt. No. 101] and should grant Defendant Davis's Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(2), (b)(6) and Joinder in Nationwide's Motion to Dismiss for Improper Venue [Dkt. No. 112].

Background

This case arises out several unsolicited phone calls that Plaintiff Craig Cunningham alleges that he received in 2016 and 2017.

On February 4, 2017, Mr. Cunningham filed this action against Nationwide and other defendants asserting violations of the Telephone Consumer Protection Act ("TCPA"). See Dkt. No. 1. Mr. Cunningham later amended his complaint to include two additional claims for violation of the Fair Credit Reporting Act ("FCRA") and common law invasion of privacy. See Dkt. No. 15 (the "First Amended Complaint").

On May 31, 2017, Nationwide moved to dismiss Mr. Cunningham's First Amended Complaint under Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6). See Dkt. No. 22. The Court granted Nationwide's motion to dismiss in part, holding that Mr. Cunningham had sufficiently alleged his TCPA and common law invasion of privacy claims but that Mr. Cunningham had failed to state a claim under the FCRA. See Dkt. No. 42 at 11. The Court granted Mr. Cunningham three weeks to replead his FCRA claim. See id.

Mr. Cunningham never filed an amended complaint, and Nationwide never filedan answer to Mr. Cunningham's remaining TCPA and common law invasion of privacy claims.

But, after a series of motions that Mr. Cunningham filed to compel discovery and secure a default judgment, Nationwide filed a Second Motion to Dismiss, see Dkt. No. 58 at 1, again seeking to dismiss Mr. Cunningham's First Amended Complaint -including the FCRA claim that had already been dismissed without prejudice - for failure to effectuate proper service. Mr. Cunningham did not respond to the Second Motion to Dismiss.

On January 18, 2018, the Court granted the parties' Agreed Motion to Amend Scheduling Order, which, according to the parties' agreement, resolved all then-pending motions in the case, including Nationwide's Second Motion to Dismiss. See Dkt. No. 80.

Nationwide then filed its Third Motion to Dismiss First Amended Complaint, again seeking to dismiss Mr. Cunningham's First Amended Complaint, which was still the live pleading, for three reasons - the first and second of which were already considered by the Court in deciding Nationwide's first motion to dismiss: (1) improper venue; (2) insufficient service of process; and (3) failure to state a claim under the FCRA. See Dkt. No. 82.

Instead of responding to Nationwide's Third Motion to Dismiss, Mr. Cunningham filed a Motion for Leave to File a Second Amended Complaint (the "Motion for Leave"), which sought to add new defendants and promised to "resolve [Nationwide's] complaints in their now third motion to dismiss." See Dkt. No. 89.

On March 22, 2018, the Court granted Mr. Cunningham's Motion for Leave and directed the Clerk of Court to file Mr. Cunningham's Second Amended Complaint on the docket. See Dkt. No. 95 at 3.

Mr. Cunningham's Second Amended Complaint repleaded Mr. Cunningham's FCRA, TCPA, and common law invasion of privacy claims against Nationwide. See Dkt. No. 96. The Second Amended Complaint further alleged that two newly-added defendants, Jason Cane and Mairin Cane, "are liable for each and every illegal telemarketing call placed by the defendants, as well as the invasion of privacy claims and FCRA violations against the Plaintiff," id. at 11 of 31; and that the third newly-added defendant, Micah Davis, "is liable for the FCRA violations and invasion of privacy damages as a result of the credit inquiry," id.

In light of Mr. Cunningham's filing a Second Amended Complaint, the Court ordered Nationwide to file a report advising the Court of the status of its Third Motion to Dismiss. See Dkt. No. 95 at 4.

Nationwide filed its Status Report as ordered, but Nationwide did not assert that their Third Motion to Dismiss could be directed to the Second Amended Complaint. As the Court explained in its Order Regarding Defendant's Status Report on Its Third Motion to Dismiss First Amended Complaint, see Dkt. No. 99,

Nationwide ... contends [in its Status Report] that Mr. Cunningham's Second Amended Complaint should be stricken from the record, see id. at 1, and that Mr. Cunningham's "First Amended Complaint [Dkt. No. 15] was not superseded by his Second Amended Complaint [Dkt. No. 96]," id. at 2.

Nationwide gives five reasons for its position that the SecondAmended Complaint should not supersede the First Amended Complaint: (1) the Second Amended Complaint violates Federal Rule of Civil Procedure 11; (2) the Second Amended Complaint "merely adds information regarding alleged business contacts" without establishing proper venue; (3) the Second Amended Complaint "is mostly identical to that of Plaintiff's First Amended Complaint"; (4) Mr. Cunningham's new vicarious liability claim incorrectly applies the doctrine of vicarious liability; and (5) Mr. Cunningham "requested leave to amend [his] complaint, not to join parties." Id. at 1-2.

Id. at 2.

The Court rejected Nationwide's arguments, and, construing Nationwide's Status Report as a motion for reconsideration, the Court declined to reverse its previous order allowing Mr. Cunningham to file his Second Amended Complaint. See id. at 2-5. The Court further ordered Nationwide to respond to Mr. Cunningham's Second Amended Complaint by April 18, 2018. See id. at 5.

On April 18, 2018, Nationwide filed its First Motion to Dismiss Second Amended Complaint, Alternatively, Motion to Strike Second Amended Complaint that is before the Court. See Dkt. No. 101 ("Nationwide's MTD").

In its supporting brief, Nationwide makes many of the same arguments that Nationwide advanced in its previous motions to dismiss and in Nationwide's Status Report. Nationwide argues that Mr. Cunningham's Second Amended Complaint should be dismissed because (1) "the appropriate venue for this case is in the Western District of Washington," Dkt. No. 102 at 4; (2) Mr. Cunningham has failed to effectuate proper service of the Second Amended Complaint on Nationwide, see id; and (3) Mr. Cunningham has failed to state a claim under the FCRA, see id. at 4-5. Alternatively,Nationwide argues that the Second Amended Complaint should be stricken from the record because the Second Amended Complaint is unsigned in violation of Federal Rule of Civil Procedure 11(a). See id. at 5-6.

On April 4, 2018, Mr. Cunningham filed Plaintiff's Corrected Second Amended Complaint, which is substantively the same as his Second Amended Complaint but bears Mr. Cunningham's signature. See Dkt. No. 104. Although Plaintiff's Corrected Second Amended Complaint was filed without attachments, in light of the circumstances under which Mr. Cunningham filed his corrected pleading, the Court will consider the attachments to Plaintiff's Second Amended Complaint as attached to Plaintiff's Corrected Second Amended Complaint.

On June 22, 2018, the Court terminated Nationwide's Third Motion to Dismiss First Amended Complaint [Dkt. No. 82] "as superseded by the First Motion to Dismiss Second Amended Complaint, Alternatively, Motion to Strike Second Amended Complaint that is before the Court [Dkt. No. 101], which is directed specifically to the now-live complaint, the Second Amended Complaint." Dkt. No. 110 at 2-3.

On July 5, 2018, Defendant Micah Davis filed his Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(2), (b)(6) and Joinder in Nationwide's Motion to Dismiss for Improper Venue. See Dkt. No. 112 ("Davis's MTD").

Legal Standards

I. Rule 12(b)(2) Motion to Dismiss for Lack of Personal Jurisdiction

When a non-resident defendant moves to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of establishing that the court hasjurisdiction over the nonresident. See Monkton Ins. Servs., Ltd. v. Ritter, 768 F.3d 429, 431 (5th Cir. 2014); Johnston v. Multidata Sys. Int'l Corp., 523 F.3d 602, 609 (5th Cir. 2008). If the court decides the matter without an evidentiary hearing, the plaintiff may meet its burden by presenting a prima facie case for personal jurisdiction. See Gardemal v. Westin Hotel Co., 186 F.3d 588, 592 (5th Cir. 1999); Wilson v. Belin, 20 F.3d 644, 648 (5th Cir. 1994).

A federal district court may exercise personal jurisdiction over a non-resident defendant if (1) the long-arm statute of the forum state permits the exercise of personal jurisdiction over the defendant and (2) the exercise of jurisdiction by the forum state is consistent with due process under the United States Constitution. See Mullins v....