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Kopff v. Battaglia

March 29, 2006


The opinion of the court was delivered by: John D. Bates United States District Judge


Plaintiffs Judy Kopff, John Hoffman, and the Guatemala Human Rights Commission/USA ("GHRC") have brought this civil action against sixteen defendants, alleging violations of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, and the District of Columbia Consumer Protection and Procedures Act ("CPPA"), D.C. Code § 28-3901 et seq., arising out of plaintiffs' receipt of dozens of unwanted facsimile transmissions. Defendant Michael Franklin moves to dismiss the claims against him for want of personal jurisdiction. See Fed. R. Civ. P. 12(b)(2). Defendant Robert Battaglia moves to dismiss the claims against him because, he asserts, they fail to state a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). Defendants Ahmed Sadiq and Garry Anzaroot move to dismiss the claims against them based on the absence of personal jurisdiction and the failure to state a claim. For the reasons discussed below, the Court concludes that (1) the claims against ten still-unserved defendants must be dismissed for want of prosecution; (2) the claims against defendants Sadiq, Anzaroot, and Franklin must be dismissed because the Court lacks jurisdiction over those individuals; and (3) the claims against defendant Battaglia under the CPPA and the claims against him under the TCPA for allegedly transmitting faxes in violation of sender identification regulations must be dismissed for failure to state a claim upon which relief may be granted, but the claims against Battaglia under the TCPA for allegedly sending unsolicited fax advertisements survive.


Plaintiffs brought this action against fourteen individuals and two corporations for sending, conspiring to send, or aiding and abetting the sending of approximately one hundred unsolicited advertisements to plaintiffs' facsimile machines without their prior express invitation, permission, or consent. The faxes advertised, among other things, travel services, loans, printer cartridges, stocks, cellular phone equipment and services, and money-making opportunities. Plaintiffs assert that Kopff received at least seventy-five faxes, Hoffman received at least twenty-one faxes, and GHRC received at least "several" faxes. Compl. at ¶ 19.

The TCPA expressly prohibits the sending of unsolicited fax advertisements, 47 U.S.C. § 227(b)(1)(C), and it confers upon recipients of such prohibited faxes a private right of action to seek injunctive relief and a monetary award of $500 per violation (or actual damages, whichever is greater), 47 U.S.C. § 227(b)(3). The damages may be increased to a maximum of $1,500 per violation for willful and knowing violations. Id.*fn1

The faxes involved in this case allegedly were sent by, a now-defunct California-based company whose business included sending advertisements via facsimile. Compl. at ¶¶ 9, 29, 30, 31, 36.*fn2 allegedly utilized a "Faxcaster" computer network that randomly dialed phone numbers to determine whether a fax machine was connected. Id. at ¶ 23. When the computer identified a fax machine on the line, the phone number was added to a database for the purpose of sending additional faxes in the future. Id. The database included telephone numbers for fax machines located in the District of Columbia. Id. at ¶ 43. Plaintiffs allege that each defendant in this action "played a separate but important role in aiding and abetting the overall scheme of sending unsolicited faxes, and each profited from the scheme." Id. at ¶ 44. Plaintiffs seek damages, jointly and severally, from defendants for their "personal actions and/or inactions and involvement in assisting with, facilitating, allowing and causing the violations or torts complained of ... and not solely because of their titles or positions as an employee, manager, officer, or director of [a] corporate entit[y]." Id. at ¶¶ 15, 78-80.


I. Failure to Prosecute

Plaintiffs filed their complaint on April 20, 2005. The Federal Rules of Civil Procedure require that service of the summons and complaint be made upon a defendant within one hundred and twenty days after the filing of the complaint. See Fed. R. Civ. P. 4(m). If it is not, the Court may dismiss the action without prejudice as to the unserved defendants or direct that service be accomplished within a specified time. Id. Because it appeared from the record that at least ten of the named defendants had not been served within the period prescribed by Rule 4(m), the Court issued an order on November 18, 2005, that required plaintiffs to file with the Court by December 19, 2005, either (1) proof that these ten defendants had been served with the summons and complaint, or (2) a written explanation as to why plaintiffs had failed to complete service within one hundred and twenty days.

On December 20, 2005, plaintiffs submitted a statement confirming that, for a variety of reasons, they had been unable to serve these ten defendants "despite attempts to do so." See Pls.' Response to Court Order Regarding Service at 1. In light of plaintiffs' statement and the absence of any subsequent proof of service, the Court concludes that the claims against these ten unserved defendants -- Jeffrey Dupree, Frank Frappier, Joseph A. Garson, Kevin Katz, Erwin Dass, Doug Keller, Matt Clemente, Chris Ricca, Global Communications Consulting Corp., and Florida Reservations, Inc. -- should be dismissed without prejudice for want of prosecution, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.

II. Personal Jurisdiction over Defendants Sadiq, Anzaroot, and Franklin

A. Legal Requirements

Defendants Sadiq, Anzaroot, and Franklin have moved to dismiss plaintiffs' claims against them for lack of personal jurisdiction. See Fed. R. Civ. P. 12(b)(2). Personal jurisdiction -- the power of the Court to impose judgment on a particular defendant in the event liability is established -- is a threshold matter for the Court to resolve. The inquiry is independent of, and logically antecedent to, any determination of the sufficiency of the complaint. Whether or not the allegations would support a finding of liability if proven, there still must be a judicial determination (absent consent or waiver by the defendant) that each defendant is properly subject to the jurisdiction of the forum. Indeed, for purposes of resolving a challenge to personal jurisdiction, the Court may assume that the claims are meritorious.*fn3

Plaintiffs bear the burden of establishing personal jurisdiction over each defendant. In order to meet that burden, plaintiffs must allege "specific facts upon which personal jurisdiction may be based," Blumenthal v. Drudge, 992 F. Supp. 44, 53 (D.D.C. 1998), and they cannot rely on conclusory allegations, see GTE New Media Servs., Inc. v. Ameritech Corp., 21 F. Supp. 2d 27, 36 (D.D.C. 1998), remanded on other grounds sub nom.GTE New Media Servs., Inc. v. BellSouth Corp., 199 F.3d 1343 (D.C. Cir. 2000). Moreover, plaintiffs cannot aggregate factual allegations concerning multiple defendants in order to demonstrate personal jurisdiction over any individual defendant. See Rush v. Savchuk, 444 U.S. 320, 331-32 (1980) (rejecting aggregation of co-defendants' forum contacts in determining personal jurisdiction because the requirements for personal jurisdiction "must be met as to each defendant over whom a state court exercises jurisdiction"). When considering challenges to personal jurisdiction, the Court need not treat all of plaintiffs allegations as true and "may receive and weigh affidavits and any other relevant matter to assist it in determining the jurisdictional facts." United States v. Philip Morris Inc., 116 F. Supp. 2d 116, 120 n.4 (D.D.C. 2000). See also Novak-Canzeri v. Al Saud, 864 F. Supp. 203, 206 (D.D.C. 1994) ("[T]he Court must accept Plaintiff's claims as true in ruling on a 12(b)(2) motion, unless they are directly contradicted by an affidavit.").

Personal jurisdiction comes in two distinct forms: "(1) general, 'all purpose' adjudicatory authority to entertain a suit against a defendant without regard to the claim's relationship vel non to the defendant's forum-linked activity, and (2) specific jurisdiction to entertain controversies based on acts of a defendant that touch and concern the forum." Steinberg v. Int'l Criminal Police Org., 672 F.2d 927, 928 (D.C. Cir. 1981). This civil action implicates only the latter form, as there is no suggestion that any of the defendants -- each of whom resides outside the District of Columbia -- has a connection to the District of Columbia that would be strong enough to support general jurisdiction. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415-16 (1984) (explaining that, where a defendant's contacts with the forum are "continuous and systematic," the forum will have jurisdiction over any matter involving the defendant).

In order to establish specific jurisdiction over a non-resident defendant in a diversity case such as this, plaintiffs must plead facts that (1) bring the case within the scope of the District of Columbia's long-arm statute, D.C. Code § 13-423, and (2) satisfy the constitutional requirement of due process. United States v. Ferrera, 54 F.3d 825, 828 (D.C. Cir. 1995); Crane v. Carr, 814 F.2d 758, 762 (D.C. Cir. 1987). The District's long-arm statute states, in pertinent part, that courts may exercise jurisdiction over any person who, acting directly or through an agent,*fn4 engages in the following conduct:

(1) transacts any business in the District of Columbia;

(2) contracts to supply services in the District of Columbia;

(3) causes tortious injury in the District of Columbia by an act or omission in the ...

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