United States District Court, M.D. Georgia, Columbus Division
KEITH HOBBS and JEREMY JACKSON, individually and on behalf of others similarly situated, Plaintiffs,
ENTREVOICE VIRTUAL SOLUTIONS, INC. and JOSELYN CORNEJO, Defendants.
D. LAND CHIEF U.S. DISTRICT COURT JUDGE
Keith Hobbs and Jeremy Jackson filed this class action
complaint against Entrevoice Virtual Solutions, Inc. and its
CEO, Joselyn Cornejo. They allege that Entrevoice and Cornejo
violated the Telephone Consumer Protection Act
(“TCPA”), 47 U.S.C. § 227, by making
autodialed solicitations to cellular telephone numbers.
Because neither Entrevoice nor Cornejo answered or otherwise
defended in this action, the Clerk entered a default against
them. Plaintiffs now ask the Court to certify the class
identified in their complaint before entering default
judgment (ECF No. 9).
the issue has not been squarely addressed in this Circuit,
the Court notes preliminarily that Defendants' default
likely does not preclude the Court from certifying a class
against them if class certification is appropriate under
Federal Rule of Civil Procedure 23. See Acticon AG v.
China N.E. Petroleum Holdings Ltd., 687 Fed.Appx. 10, 12
(2d Cir. 2017) (finding a district court abused its
discretion by denying as moot a plaintiff's motion for
class certification against a defendant in default). But,
because a “defendant may defeat subsequent enforcement
of a default judgment in another forum by demonstrating that
the judgment issued from a court lacking personal
jurisdiction, ” the Court finds it prudent to address
the issue of personal jurisdiction before deciding whether to
certify a class action in this case. Rash v. Rash,
173 F.3d 1376, 1381 (11th Cir. 1999); see Lipofsky v.
N.Y. State Workers Comp. Bd., 861 F.2d 1257, 1258 (11th
Cir. 1988) (“In the absence of a waiver, a district
court may raise on its own motion an issue of defective venue
or lack of personal jurisdiction; but the court may not
dismiss without first giving the parties an opportunity to
present their views on the issue.”). Plaintiffs'
counsel, at the Court's direction, has now submitted a
brief on the issue of the Court's personal jurisdiction
over both Entrevoice and Cornejo in this action. See
Order (June 21, 2019), ECF No. 10; Resp. to Order to Show
Cause, ECF No. 12.
explained in the remainder of this Order, the Court finds
that it can exercise personal jurisdiction over Entrevoice,
but not Cornejo. Accordingly, this action is dismissed as to
Cornejo, and Plaintiffs are directed to file an amended
motion for class certification only as to Entrevoice within
twenty-one days of today's Order.
Entrevoice nor Cornejo is a resident of Georgia. The Court
may exercise personal jurisdiction over a non-resident
defendant only if (1) jurisdiction is appropriate under the
long-arm statute of Georgia (the state where the Court sits)
and (2) the exercise of jurisdiction does not violate the Due
Process Clause of the Fourteenth Amendment to the United
States Constitution. Diamond Crystal Brands, Inc. v. Food
Movers Int'l, Inc., 593 F.3d 1249, 1257-58 (11th
Cir. 2010); Louis Vuitton Malletier, S.A. v.
Mosseri, 736 F.3d 1339, 1350 (11th Cir. 2013) (applying
this test in a federal question action). Plaintiffs have the
burden of presenting “sufficient facts to make out a
prima facie case of jurisdiction.” Id. at 1257
(quoting United Techs. Corp. v. Mazer, 556 F.3d
1260, 1274 (11th Cir. 2009)).
Process Clause of the Fourteenth Amendment requires that
“individuals have ‘fair warning that a particular
activity may subject [them] to the jurisdiction of a foreign
sovereign[.]'” Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 472 (1985) (first alteration in
original) (quoting Shaffer v. Heitner, 433 U.S. 186,
218 (1977) (Stevens, J., concurring in judgment)). With this
“fair warning” requirement, “the Due
Process Clause ‘gives a degree of predictability to the
legal system that allows potential defendants to structure
their primary conduct with some minimum assurance as to where
that conduct will and will not render them liable to
suit[.]'” Id. (quoting World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)).
The courts recognize two types of jurisdiction that are
consistent with the Due Process Clause: “general or
all-purpose jurisdiction, and specific or case-linked
jurisdiction.” Goodyear Dunlop Tires Operations,
S.A. v. Brown, 564 U.S. 915, 919 (2011). The Court may
exercise general jurisdiction over a nonresident if the
nonresident has contacts with Georgia that “are so
‘continuous and systematic' as to render [her]
essentially at home in” Georgia. Id. (quoting
Int'l Shoe Co. v. Washington, 326 U.S. 310, 317
(1945)). “For an individual, the paradigm forum for the
exercise of general jurisdiction is the individual's
domicile[.]” Id. at 924.
Defendants' Contacts with Georgia
no discovery has been conducted in this action, the
Court's jurisdiction decision is based upon the factual
allegations in Plaintiffs' complaint, which the Court
accepts as true given that Defendants are in default. Here,
Plaintiffs allege that Cornejo and Entrevoice had three
contacts with Georgia. The first contact is Entrevoice's
autodialed phone call to the Georgia Plaintiff who has a cell
phone number with a Georgia area code (706). Compl.
¶¶ 30, 32-38, ECF No. 1. The Georgia Plaintiff hung
up on this call after a man named Robert with Entrevoice came
on the line. Id. ¶¶ 39-40. There is no
allegation that Cornejo placed that call. The second contact
is Cornejo's subsequent follow-up call to the Georgia
Plaintiff advertising Entrevoice services. Id.
¶ 41. There is no allegation that this phone call
violated the TCPA. The third contact is Cornejo's
follow-up email to the Georgia Plaintiff. Id. ¶
42. There is no allegation that this email violated the TCPA.
Personal Jurisdiction Over Cornejo
these minimal contacts satisfy Georgia's long-arm
statute, the exercise of personal jurisdiction over Cornejo
based on these limited contacts would offend due process.
Plaintiffs allege no facts to support general jurisdiction
over Cornejo. It appears undisputed that her domicile is not
Georgia. Therefore, jurisdiction can only be exercised over
her if the Court has specific jurisdiction arising from the
claims against her in this action.
specific personal jurisdiction cases, [the Court] appl[ies]
the three-part due process test, which examines: (1) whether
the plaintiff's claims ‘arise out of or relate
to' at least one of the defendant's contacts with the
forum; (2) whether the nonresident defendant
‘purposefully availed' [herself] of the privilege
of conducting activities within the forum state, thus
invoking the benefit of the forum state's laws; and (3)
whether the exercise of personal jurisdiction comports with
‘traditional notions of fair play and substantial
justice.'” Louis Vuitton Malletier, S.A.,
736 F.3d at 1355. Plaintiffs do not allege sufficient facts
to establish that any of their claims arise from or relate to
any of Cornejo's contacts with Georgia. “In this
Circuit, . . . a tort ‘arise[s] out of or relate[s]
to' the defendant's [contact with the forum state] if
the [contact] is a ‘but-for' cause of the
tort.” Waite v. All Acquisition Corp., 901
F.3d 1307, 1314 (11th Cir. 2018) (alterations in original)
(quoting Oldfield v. Pueblo De Bahia Lora, S.A., 558
F.3d 1210, 1222-23 (11th Cir. 2009)).
the only contacts that Plaintiffs allege Cornejo herself
purposefully made with Georgia are her follow-up phone call
and email to the Georgia Plaintiff. Both these contacts
occurred after the Georgia Plaintiff suffered the harm
underlying his cause of action in this case-receiving the
first phone call which was an autodialed solicitation from
another Entrevoice employee. Therefore, Cornejo's
follow-up phone call and email were not the but-for cause of
the Georgia Plaintiff's harm; thus Cornejo's contacts
with Georgia do not arise out of or relate to ...