Jance v. Homerun Offer, LLC

Jance v. Homerun Offer, LLC

Opinion

ORDER

Plaintiff brings this action against Defendants Homerun Offers LLC and All Star Investments alleging violations of the Telephone Consumer Protection Act (TCHomerun Offer, LLCPA), 47 U.S.C. § 227. Plaintiff alleges Homerun Offer made 29 calls to Plaintiff in violation of the Act and alleges All Star Investments is vicariously liable for Homerun Offer's phone calls. Pending before the Court is Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint (SAC) for failure to state a claim and lack of personal jurisdiction over Defendant All Star Investments. (Doc. 19.) Plaintiff filed a Response (Doc. 22), and Defendants filed a Reply. (Doc. 23.) Defendants also filed a Notice of Supplemental Authority, to which Plaintiff responded. (Doc. 25.) For the following reasons, the Court will grant in part and deny in part Defendants' motion to dismiss.

BACKGROUND

Plaintiff's SAC contains the following allegations. Plaintiff is a resident of Tucson, Arizona. (Doc. 16, ¶ 18.) Between [*2]  January 16 and July 6, 2020, Plaintiff received 29 calls on his cell phone from a caller purporting to represent a "local investor," and inquiring if Plaintiff had any interest in selling his property. (Doc. 16, ¶¶ 11-12, 18.) Each call came from a 520-402-10xx number, with the last two digits ranging from 17-29. (Id.) For each call he answered, Plaintiff alleges that he heard "a brief hesitation of several seconds" before the caller spoke to him. (Id. at 19.) After hearing the content of the call, which Plaintiff describes as "a generic and cursory inquiry" into purchasing his house, Plaintiff would give a standard response that included requesting to be placed on the company's do-not-call list. (Id. ¶¶ 11, 15-16.) Plaintiff also alleges that "at no point" did the caller specifically identify on whose behalf he was calling or provide company contact information. (Id. ¶¶ 16-17.) Plaintiff alleges that on those occasions when he called back the numbers of the caller shown on his phone, an automated answering system played an identical message for all of the different phone numbers.¹ (Id. ¶ 75.)

When Plaintiff searched the phone numbers on www.whitepages.com, the website categorized the [*3]  phone numbers as "Non-Fixed VoIP," or Voice over Internet Protocol. (Id. ¶¶ 20-21.) VoIP is "a category of hardware and software that enables people to use the internet as the transmission medium for telephone calls, sending voice data in packets using internet protocols (IP) rather than by traditional circuit transmissions of the [public switched telephone network] PSTN." (Id. ¶ 21.)² When Plaintiff searched the phone numbers on www.reportedcalls.com, the website attributed the telephone number prefix 520-402 to "Location: Arizona" and "Rate Center: Benson." (Id. ¶ 23.) Plaintiff alleges that Defendants do not currently, nor during the time the calls were made, operate or contract with a call center in Benson, Arizona. (Id. ¶ 24.) Plaintiff also alleges that because the calls came from what he claims is a non-existent call center in Benson, the 520-402-10xx telephone numbers were "spoofed,"³ which would require specialized telephone equipment like an automatic telephone dialing system (ATDS). (Id. ¶¶ 27-28.)

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