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Asher & Simons, P.A., v. J2 Global Canada, Inc.

United States District Court, Fourth Circuit

August 28, 2013

ASHER & SIMONS, P.A., et al., Plaintiffs
v.
J2 GLOBAL CANADA, INC., et al., Defendants

MEMORANDUM

James K. Bredar, United States District Judge.

Asher & Simons, P.A. and Dr. Stuart T. Zaller, LLC (“Plaintiffs”) brought this suit against j2 Global, Inc., j2 Global Canada, Inc., Wellington Wreaths, LLC, and several individuals (“Defendants”) alleging violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, and the Maryland Consumer Protection Act (“MCPA”), Md. Code Ann. Com. Law § 14-3201. Now pending before the Court are Defendant j2 Global, Inc.’s (“j2 Global”) motion to dismiss for lack of personal jurisdiction (ECF No. 30), Plaintiffs’ motion to strike Defendant j2 Global Canada Inc.’s (“j2 Canada”) affirmative defenses (ECF No. 44), Plaintiffs’ motion for partial summary judgment (ECF No. 45), and Plaintiff Asher & Simons’ motion for default judgment against Wellington Wreaths, LLC (“Wellington”) (ECF No. 52). The issues have been briefed and no hearing is required. Local Rule 105.6. For the reasons set forth below, j2 Global’s motion to dismiss for lack of personal jurisdiction will be GRANTED, Plaintiffs’ motion to strike j2 Canada’s affirmative defenses will be DENIED, Plaintiffs’ motion for partial summary judgment will be GRANTED, and Asher & Simons’ motion for default judgment will be GRANTED.

I. BACKGROUND

Plaintiffs allege that Defendants “sent, or aided and abetted or conspired to send” unsolicited facsimile advertisements to Plaintiffs during the period from May 11, 2010 through January 31, 2013. (See Am. Compl., ECF No. 12.) The fax messages allegedly did not include the legally required opt-out notice. Plaintiffs allege that they “suffered actual damages including the loss of paper and toner, and nuisance, as a result of the receipt of unsolicited fax ads.” (Id. ¶ 31.)

Plaintiffs allege that j2 Global is the parent company of j2 Canada, which “regularly transmits large numbers of fax ads into Maryland, with the knowledge and approval of” j2 Global. (Id. ¶ 39.) According to the amended complaint, j2 Global “is regularly updated on, has knowledge of, and directs [j2 Canada]’s regular business of sending large numbers of fax ads and related services as described above and herein, including through [j2 Canada] employee Allen Tough.” (Id. ¶ 57.) Plaintiffs allege that j2 Global is the alter ego of j2 Canada, “at least with respect to sending unsolicited fax ads.”

II. LEGAL STANDARD

A motion to dismiss under Fed.R.Civ.P. 12(b)(2) is a test of the court’s personal jurisdiction over the defendant. “[W]hen, as here, the court addresses the question [of personal jurisdiction] on the basis only of motion papers, supporting legal memoranda and the relevant allegations of a complaint, the burden on the plaintiff is simply to make a prima facie showing of a sufficient jurisdictional basis to survive the jurisdictional challenge.” New Wellington Fin. Corp. v. Flagship Resort Dev. Corp., 416 F.3d 290, 294 (4th Cir. 2005) (quoting Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989)). The court must construe the relevant allegations in the light most favorable to the plaintiff. Id.

Fed. R. Civ. P. 12(f) permits district courts to “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Motions under Rule 12(f) are generally disfavored and should be granted infrequently. Waste Mgmt. Holdings v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001); Renaissance Greeting Cards, Inc. v. Dollar Tree Stores, 227 Fed. App’x. 239, 247 (4th Cir. 2007). “Nevertheless, a defense that might confuse the issues in the case and would not, under the facts alleged, constitute a valid defense to the action can and should be deleted.” 5C Wright & Miller, Fed. Prac. Proc. Civ. § 1380, 647 (3d ed. 2011). Furthermore, “the disfavored character of Rule 12(f) is relaxed in the context of scandalous allegations, ” i.e., those that “improperly cast a derogatory light on someone.” Id. § 1382. The decision to grant or deny a motion under Rule 12(f) is discretionary. Renaissance Greeting Cards, 227 Fed. App’x. at 246.

A party seeking summary judgment must show “that there is no genuine dispute as to any material fact” and that he is “entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). If a party carries this burden, then the court will award summary judgment unless the opposing party can identify specific facts, beyond the allegations or denials in the pleadings, that show a genuine issue for trial. Fed.R.Civ.P. 56(e)(2). To carry these respective burdens, each party must support its assertions by citing specific evidence from the record. Fed.R.Civ.P. 56(c)(1)(A). The court will assess the merits of the motion, and any responses, viewing all facts and reasonable inferences in the light most favorable to the opposing party. Scott v. Harris, 550 U.S. 372, 378 (2007); Iko v. Shreve, 535 F.3d 225, 230 (4th Cir. 2008).

Except in limited circumstances, parties “must apply to the court for a default judgment.” Fed.R.Civ.P. 55(b)(2). The district judge is required to exercise sound judicial discretion in determining whether the judgment should be entered. 10A Wright & Miller, Fed. Prac. Proc. Civ. § 2685 (3d ed. 2011). “If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice of the application at least 7 days before the hearing” to resolve the default issue. Fed.R.Civ.P. 55(b)(2).

III. ANALYSIS

A. j2 Global’s Motion to Dismiss for Lack of Personal Jurisdiction

Defendant j2 Global moves to dismiss the claims against it for lack of personal jurisdiction. At a minimum, Plaintiffs must make a prima facie showing that personal jurisdiction exists, “which must be based on affirmative proof beyond the pleadings, such as affidavits, testimony or other competent evidence of specific facts.” 4 Wright & Miller, Fed. Prac. Proc. Civ. § 1067.6 (collecting cases).

Plaintiffs have failed to meet their burden, because they have not offered any evidence beyond the allegations in the pleadings to establish that the Court has personal jurisdiction over j2 Global. In their response to j2 Global’s motion, Plaintiffs assert that j2 Global is not a party to this suit. (Pls. Opp. to Mot. to Dismiss for Lack of Personal Jurisdiction at 1-2, ECF No. 32.) They state that the party that filed the motion is named j2 Global, Inc., and the party named in the amended complaint is j2 Global Communications, Inc. (Id.) Plaintiffs also allege that they have evidence that the party that is a defendant in this action received regular reports from representatives of its co-Defendants about the misconduct alleged in this case. (Id.) ...


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