MEMORANDUM OPINION ADOPTING REPORT &
RECOMMENDATION OF THE MAGISTRATE JUDGE
KETANJI BROWN JACKSON UNITED STATES DISTRICT 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 Judge Harvey'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 since Betz
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 case fares 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.
REPORT
AND RECOMMENDATION
G.
MICHAEL HARVEST UNITED STATES MAGISTRATE JUDGE
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
etseq. [Dkt. 1, ¶ 1]. Upon consideration of
Plaintiff s complaint, motion for default judgment, and the
supporting affidavits and documentary evidence, the
undersigned RECOMMENDS that Plaintiffs
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 Plaintiffs motion
for default judgment, Defendant, a California student loan
relief company, called Plaintiffs cell phone number in the
District of Columbia "five plus" times between
November 7, 2017, and December 5, 2017, even though
Plaintiffs 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 December 20, 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 ...