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UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

Troy K. Scheffler,

Case No. 15-cv-4504 (RHK/TNL) Plaintiff,

v. Tapfury LLC; Tapfury, Inc.; Kickback, Inc.; and Prankdial, LLC,

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

Defendants.

INTRODUCTION Defendants KickBack, Inc., PrankDial, LLC, Tapfury, LLC, and Tapfury, Inc. (collectively, “Defendants”) submit this Memorandum of Law in support of their Motion to Dismiss or, in the Alternative, for Summary Judgment. Plaintiff’s Amended Complaint should be dismissed for lack of jurisdiction, failure to state a claim, and insufficient service of process pursuant to Federal Rules of Civil Procedure 12(b)(2), 12(b)(6), and 12(b)(5). Alternatively, Defendants are entitled to judgment as a matter of law pursuant to Federal Rule of Civil Procedure 56. This case involves a dispute between a serial plaintiff, Troy Scheffler, and an acquaintance who decided to play a trick on him. It is not, as Plaintiff has asserted, a case involving mass unsolicited commercial solicitations that would

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trigger the Telephone Consumer Protection Act (“TCPA”) any more than it is a Minnesota False Statement in Advertisement Act (“MFSAA”) or invasion-ofprivacy matter for which Defendants bear any responsibility. Put simply, Defendants did not call Plaintiff—Plaintiff’s own acquaintance did. Plaintiff’s Amended Complaint therefore fails to state a claim against Defendants upon which relief may be granted. More problematic for him, Plaintiff has failed to allege and cannot demonstrate that the Court has personal jurisdiction over Defendants. For these reasons, as explained below, Defendants request that the Court grant their motion and dismiss Plaintiff’s Amended Complaint with prejudice. STATEMENT OF FACTS Background of Kickback, Tapfury, and PrankDial KickBack, Inc. (“KickBack”) was founded in 2015 to develop mobile and web-based entertainment applications. (Declaration of Joseph Delfino (“Delfino Decl.”) ¶ 2.) Tapfury, Inc. (“Tapfury”) was founded in 2016 to develop mobile and web-based entertainment applications. Both Kickback and Tapfury are headquartered in New York. (Id.) Tapfury, LLC, formerly known as PrankDial, LLC, is an inactive company that dissolved in April 2016. (See Amended Complaint (“Am. Compl.”) ¶ 5.) Kickback owns and operates the PrankDial website, application, and services. (Delfino Decl. ¶ 4.) The PrankDial application allows users to initiate 2

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prank telephone calls to their friends with prerecorded scripted pranks for entertainment purposes only. (Id.) Users must download the application in order to initiate a call. (Id. ¶ 5.) The application is available for download on the website www.PrankDial.com and through GooglePlay and Apple iTunes, both of which require applications to meet stringent requirements in order to be published and available for download from their stores. (Id.) To make a prank call, users select a prank and enter the recipient’s phone number they wish to call. (Id. ¶ 6.) Users can only enter one phone number at a time to call. (Id.) Users then press “send” to initiate a call to the recipient’s number they entered with the prank script they selected. (Id.) Once users hit “send,” the message is instantaneously sent to a third-party vendor that transmits the message. (Id.) Neither the PrankDial application itself nor Defendants have the option to delay or otherwise control the timing of when the call is placed. (Id.) Without the user completing the steps described above, the PrankDial application does not, cannot, and will not transmit calls. (Id.) At the end of a prank call, an audible identifier states, “You’ve Been Pranked By PrankDial.com,” to inform the recipient that they have been pranked. (Id.) Users may opt out of this audible identifier to make the prank seem more authentic if they purchase “tokens.” (Id.) If call recipients request to

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be placed on PrankDial’s “do not call” list, future calls to their phone number will be blocked from selection on the user interface. (Id. ¶ 7.) Residents of Minnesota can access the PrankDial application only through the Internet. (See id. ¶ 5.) Defendants have not deliberately marketed or advertised the PrankDial application in Minnesota. (Id. ¶ 9.) Although the PrankDial website and application are accessible worldwide, including in the District of Minnesota, the website and application only provide users with the means to initiate a call, which can be made anywhere in the world. (Id. ¶¶ 5–6.) The alleged calls to Plaintiff Plaintiff, a resident of Minnesota, alleges that he received unsolicited phone calls from PrankDial on July 25, 2015, and July 26, 2015. (See Am. Compl. ¶¶ 4, 13, 19, 23, 36, 39.) Plaintiff alleges that he received a message on July 25, 2015, at 12:01 a.m. that included the audible identifier “You’ve Been Pranked By PrankDial.com” at the end of the message (id. ¶ 13); a message on July 25, 2015, at 1:01 a.m. (id. ¶ 19); a second call with no message on the same time and date (id. ¶ 23); a call with no message on July 25, 2015, at 10:00 a.m. (id. ¶ 30); a message on July 26, 2015, at 12:54 a.m. (id. ¶¶ 36–37); and a message on July 26, 2015 at 1:00 a.m. (id. ¶ 39). Plaintiff alleges that on July 31, 2015, he discovered that each of these calls originated from PrankDial. (Id. ¶ 43).

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Plaintiff’s claims and requested relief Plaintiff asserts five claims against Defendants for purported violations of the TCPA and its implementing regulations (Counts I–V), one claim against Defendants for purported violation of the MFSAA (Count VI), and one claim against Defendants for purported common-law violation of privacy (Count VII). (See id. ¶¶ 103–50.) The sole basis for Plaintiff’s claims is his allegation that he received unsolicited phone calls through the PrankDial application. (See generally id.) Plaintiff seeks statutory and punitive damages as well as injunctive and declaratory relief. (Id. at 21–22.) ARGUMENT

I.

Legal standard A.

Dismissal under Rule 12(b)

Under Rule 12(b)(2), courts grant motions to dismiss when a plaintiff fails to make a prima facie showing of personal jurisdiction over a defendant. See Pecoraro v. Sky Ranch for Boys, Inc., 340 F.3d 558, 561 (8th Cir. 2003); Fed. R. Civ. P. 12(b)(2). “To survive a motion to dismiss for lack of personal jurisdiction, a plaintiff must make a prima facie showing that personal jurisdiction exists, which is accompanied by pleading sufficient facts to support a reasonable inference that the defendant[] can be subjected to jurisdiction within the state.”

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K-V Pharm. Co. v. J. Uriach & CIA, S.A., 648 F.3d 588, 591–92 (8th Cir. 2011) (internal citation and quotation omitted). Courts also grant motions to dismiss when a complaint fails to state a claim upon which relief may be granted. See Northstar Indus. v. Merrill Lynch & Co., 576 F.3d 827, 831–32 (8th Cir. 2009); Fed. R. Civ. P. 12(b)(6). To survive such a motion, a complaint must contain sufficient facts, accepted as true, to “state a claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). Claims for false statements in advertising must be plead with particularity. See Kinetic Co. v. Medtronic, Inc., 672 F. Supp. 2d 933, 944 (D. Minn. 2009); Fed. R. Civ. P. 9(b). The principle that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Iqbal, 556 U.S. at 678. Thus, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). Courts also commonly grant motions to dismiss when a plaintiff fails to properly serve a summons. See Hinz v. Wash. Mut. Home Loans, No. 03-3203, 2004 U.S. Dist. LEXIS 5713, at *5–6 (D. Minn. Apr. 2, 2004); Fed. R. Civ. P. 12(b)(5).

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When a defendant moves for dismissal pursuant to Rule 12(b)(5), “the plaintiff must establish prima facie evidence that there was sufficient . . . service of process.” Hahn v. Bauer, No. 09-2220, 2010 U.S. Dist. LEXIS 6900, at *15 (D. Minn. Jan. 8, 2010). B.

Summary judgement under Rule 56

To the extent that the Court relies on declarations and other accompanying documents in assessing Defendants’ motion to dismiss, it can convert the motion to one for summary judgment under Rule 56. See Fed. R. Civ. P. 12(d). Summary judgment is appropriate when there are no material facts in dispute and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Fed. R. Civ. P. 56. The non-moving party may not rest upon the allegations set forth in the pleadings but instead must produce significant probative evidence that demonstrates a genuine issue for trial. See Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249–50 (1986). If the non-moving party fails to carry that burden or fails to establish an essential element of its case, summary judgment is warranted. See Celotex, 477 U.S. at 322.

II.

Plaintiff’s allegations do not establish personal jurisdiction over Defendants. The Court should dismiss the Amended Complaint for lack of personal

jurisdiction over Defendants. See Fed. R. Civ. P. 12(b)(2). Personal jurisdiction is

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proper over an out-of-state defendant only if (1) such jurisdiction is authorized by the forum state’s long-arm statute; and (2) maintaining such jurisdiction over the defendant is consistent with the Due Process Clause of the Fourteenth Amendment. Pecoraro, 340 F.3d 558 at 561. Because Minnesota’s long-arm statute permits jurisdiction to the extent permitted by the Due Process Clause, these inquiries merge into one. Wessels, Arnold & Henderson v. Nat’l Med. Waste, Inc., 65 F.3d 1427, 1431 (8th Cir. 1995). Thus, the Court must determine whether the exercise of personal jurisdiction over Defendants in this case comports with due process. To meet that standard, a defendant must have “certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal citation and quotation omitted). Personal jurisdiction over a defendant may be “specific” or “general.” See Viasystems, Inc. v. EBM-Papst St. Georgen GmbH & Co., KG, 646 F.3d 589, 593 (8th Cir. 2011). Specific jurisdiction refers to jurisdiction over causes of action that “arise out of” or “relate to” a defendant’s activities within a state. Lakin v. Prudential Secs., 348 F.3d 704, 707 (8th Cir. 2003). General jurisdiction “refers to the power of a state to adjudicate any cause of action involving a particular defendant, regardless of where the cause of action arose.” Sondergard v. Miles,

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Inc., 985 F.2d 1389, 1392 (8th Cir. 1993). Plaintiff bears the burden of proving the minimum contacts necessary to satisfy due process. Bible & Gospel Trust v. Wyman, 354 F. Supp. 2d 1025, 1028 (D. Minn. 2005). A.

Plaintiff cannot establish specific jurisdiction over Defendants because they did not purposefully direct their conduct at Minnesota residents.

Plaintiff has failed to allege facts to support a finding of specific jurisdiction over Defendants based on their activities in Minnesota. Lakin, 348 F.3d at 707. Plaintiff has not alleged that Defendants purposely direct their activities at Minnesota, actively solicit and target Minnesota residents, or focus on Minnesota application users more or in a different manner than potential users elsewhere across the country or world. (See generally Am. Compl.) Likewise, Plaintiff has not alleged that the PrankDial application’s availability on the Internet constitutes sufficient contacts with Minnesota to establish specific jurisdiction or that Minnesota residents download the application at a higher rate than residents of other states. (See generally id.) In fact, the PrankDial website is passive and does not target or focus on Minnesota users, and Defendants do not make the PrankDial application exclusively available to Minnesota residents or specifically advertise the application to Minnesota residents. (Delfino Decl. ¶ 9.)1 In addition, the user—

Although the Court may dismiss Plaintiff’s Amended Complaint based on the insufficiency of Plaintiff’s allegations alone, Defendants include references to 1

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not Defendants—determines whether the ultimate contact will occur in Minnesota or any other state; Defendants do not direct the calls at the forum state. (Id. ¶ 6.) Defendants did not design the application software specifically for any state’s regulations, and PrankDial does not have an established network of communication with consumers in Minnesota. (Id. ¶¶ 9–10.) Finally, Defendants have no employees or offices in Minnesota and do not direct advertising to Minnesota residents. (Id.) Courts have held that there is no personal jurisdiction over a defendant based on similar circumstances. For example, in Intercarrier Communications LLC v. WhatsApp, Inc., the court dismissed a TCPA claim where the plaintiff failed to allege that the defendant “purposefully availed” itself of the privilege of conducting business in Virginia even though a Virginia resident could download the product directly from the defendant’s website or use the software within that forum. No. 3:12-cv-776, 2013 U.S. Dist. LEXIS 131318, at *4–5, *20 (E.D. Va. Sept. 13, 2013). In this case, Plaintiff similarly fails to allege that Defendants “purposefully availed” themselves of the privilege of conducting business in Minnesota. Because the mere fact that Defendants’ application is available for use by Minnesota residents is insufficient to establish specific jurisdiction, the Court

Mr. Delfino’s Declaration in the event that the Court considers Defendants’ motion as one brought under Rule 56. 10

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should conclude that it lacks personal specific jurisdiction over Defendants in this case. B.

Plaintiff cannot establish general jurisdiction over Defendants because they lack continuous and systematic contacts with Minnesota.

“[G]eneral jurisdiction over a defendant is subject to a higher due-process threshold.” Viasystems, 646 F.3d at 595. “General jurisdiction arises when a defendant maintains continuous and systematic contacts with the forum state even when the cause of action has no relation to those contacts.” Era Marine Prods. v. Jet Dock Sys., No. 09-3050, 2010 U.S. Dist. LEXIS 104222, at *10 (D. Minn. Sept. 30, 2010) (internal citation and quotation omitted). Plaintiff has not alleged—nor can he—that Defendants have “continuous and systematic general business contacts” with Minnesota such that general jurisdiction exists. Plaintiff has not alleged that Defendants have any offices in Minnesota. And they do not have any. (Delfino Decl. ¶ 10.) In addition, Plaintiff has not alleged (and cannot plausibly allege) that Defendants have contracts with and do business with Minnesota companies. (Id.) Further, the worldwide availability of PrankDial’s website and application does not equate to “continuous” or “systematic” business contacts with Minnesota. See, e.g., Bible & Gospel Trust, 354 F. Supp. 2d at 1031 (finding that “the evidence appears undisputed that the website at issue and its contents were not specifically directed to Minnesota residents”). Therefore, the Court should find that 11

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Plaintiff’s allegations cannot support a finding of general jurisdiction over Defendants. C.

Plaintiff has not met his burden of showing that exercising jurisdiction over Defendants would comport with the Court’s traditional notions of fair play and substantial justice.

Plaintiff has additionally not met his burden of establishing that the exercise of personal jurisdiction over Defendants comports with traditional notions of fair play and justice. See Int’l Shoe Co., 326 U.S. at 317. “The touchstone of the due-process analysis remains whether the defendant has sufficient ‘minimum contacts with [the forum state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’’” Viasystems, 646 F.3d at 594 (quoting Int’l Shoe Co., 328 U.S. at 316). To determine whether there are sufficient minimum contacts, courts consider the following five factors: (1) the nature and quality of the contacts with the forum state; (2) the quantity of the contacts; (3) the relation of the cause of action to those contacts; (4) the interest of the forum state in providing a forum for its residents; and (5) the convenience of the parties. Johnson v. Woodstock, 444 F.3d 953, 956 (8th Cir. 2006). The most important factors are those that analyze forum contacts. Bell Paper Box v. Trans W. Polymers, 53 F.3d 920, 922 (8th Cir. 1995). As described below, the burden on Defendants of litigating this dispute in a forum state thousands of miles from their headquarters coupled

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with the cost to this District of the litigation significantly outweighs any interest that Plaintiff may have in keeping the dispute in this District. 1.

The nature and quality of Defendants’ contacts with Minnesota are insignificant.

To maintain personal jurisdiction over Defendants, Defendants’ contacts with Minnesota must be more than “random, fortuitous, or attenuated.” Bell Paper Box, 53 F.3d at 922 (internal citation and quotation omitted). Here, the nature and quality of Defendants’ contacts with Minnesota are insignificant. Defendants’ only contacts with Minnesota are PrankDial calls made by or received by Minnesota residents—calls that Defendants do not make or initiate. Plaintiff has not alleged any facts—apart from the calls he alleges he received in Minnesota—regarding Defendants’ contacts with Minnesota. (See generally Am. Compl.) Defendants have no agents or property in Minnesota. (Delfino Decl. ¶ 10.) Defendants are not headquartered in Minnesota and do not have offices in Minnesota. (Id. ¶¶ 2, 10.) Defendants have not employed anyone in Minnesota and have not sent any employees to Minnesota. (Id. ¶ 10.) Therefore, this factor weighs against the exercise of personal jurisdiction over Defendants. 2.

Defendants have minimal contacts with Minnesota.

Defendants’ contacts with Minnesota are minimal. Defendants have no physical presence in Minnesota, have never visited Minnesota in relation to their business operations, and have minimal correspondence with Minnesota

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residents. (Id.) Plaintiff only alleges that a single Minnesota resident received a call from Defendants. (See generally Am. Compl.) However, Plaintiff fails to allege from where the call was placed or ultimately transmitted. (See generally id.) Therefore, this factor also weighs against the exercise of personal jurisdiction over Defendants. 3.

This action is not related to those insignificant, minimal contacts.

There is no indication that this action resulted from Defendants’ contacts with Minnesota. Plaintiff fails to allege that his claims arise out of any activities by Defendants within Minnesota. (See generally Am. Compl.) Taken as a whole, the nature, quantity, and quality of the contacts and the relation of the contacts to the cause of action do not meet the due process requirements of personal jurisdiction—all of which weighs against the exercise of personal jurisdiction over Defendants. 4.

Minnesota’s interests are served by denying personal jurisdiction over Defendants.

Minnesota does not have a significant interest in the resolution of this dispute. Defendants are not based in Minnesota, and the application at issue was developed outside of Minnesota. (Delfino Decl. ¶¶ 2, 9.) Although some Minnesota residents presumably use the application, Plaintiff has not alleged that Minnesota residents use the PrankDial application proportionally more than residents of any other state. Minnesota’s interest is served by dismissing this

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dispute and focusing its resources on the resolution of disputes that belong in this District. Because Minnesota has no significant interest in retaining this action, this factor weighs against the exercise of personal jurisdiction over Defendants. 5.

Defendants would be burdened by litigation in this District.

Adjudication of Plaintiff’s claims in Minnesota would significantly burden Defendants. Defendants do not have any employees, officers, or offices in Minnesota. (Id. ¶ 10.) In fact, most of Defendants’ officers and employees reside in New York. (Id.) Defendants have established their headquarters in New York. (Id. ¶ 2.) The additional cost of transporting witnesses and evidence to this District would significantly burden Defendants. (Id. ¶ 11.) Thus, this factor weighs against the exercise of personal jurisdiction over Defendants. Taken as a whole, the contacts between Defendants and Minnesota are insufficient to support jurisdiction, and they offend traditional notions of fair play and justice. See Pecoraro, 340 F.3d at 561. Therefore, the Court should dismiss Plaintiff’s claims for lack of personal jurisdiction under Rule 12(b)(2).

III.

Plaintiff has not pleaded viable TCPA claims against Defendants. In addition to the procedural flaws with Plaintiff’s claims, the Court

should dismiss the Amended Complaint for failure to state a claim under

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Rule 12(b)(6).2 At its core, this case is a dispute between Plaintiff and an acquaintance—it does not implicate the TCPA and does not warrant class treatment. As detailed below, Plaintiff’s Amended Complaint fails to state a claim for TCPA relief and should be dismissed with prejudice. A.

Plaintiff fails to allege facts demonstrating that Defendants “made” or “initiated” the calls in question, a necessary element of his TCPA claims.

The TCPA makes it unlawful “to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless [a limited exception applies]” or “to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system [“ATDS”] or an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular phone service.” 47 U.S.C. § 227(b)(1)(A)(iii), (b)(1)(B) (emphasis added). To state a plausible TCPA claim, Plaintiff must establish that PrankDial was the maker or initiator of the call to Plaintiff’s cell phone. See Smith v. Securus Techs., Inc., 120 F. Supp. 3d 976, 981 (D. Minn. 2015) (concluding that the defendant was not liable under the TCPA because it did not “make” the phone calls that the plaintiffs received).

Alternatively, if the Court relies on Mr. Delfino’s Declaration in assessing Defendants’ motion to dismiss, it should dismiss the Amended Complaint under Rule 56. 2

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Plaintiff’s TCPA claims fail because his allegations do not and cannot establish that PrankDial “made” or “initiated” the calls at issue. Although the TCPA does not define what it means to “make” or “initiate” a call, both the FCC, which is responsible for implementing the TCPA, and recent case law have discussed the issue of mobile-application TCPA liability when a third party actually makes or initiates the calls in question. The FCC recently clarified that when determining whether an application provider such as PrankDial can be liable under the TCPA as a “maker” or “initiator,” the FCC will “look to the totality of the facts and circumstances surrounding the placing of a particular call to determine: 1) who took the steps necessary to physically place the call; and 2) whether another person or entity was so involved in placing the call as to be deemed to have initiated it, considering the goals and purposes of the TCPA.” In the Matter of Rules & Regulations the Tel. Consumer Prot. Act of 1991, 30 F.C.C.R. 7961, 7980 (2015) (“2015 Order”). In its 2015 Order, the FCC considered whether two companies, Glide Talk, Ltd. (“Glide”) and TextMe, Inc. (“TextMe”), “make” calls for the purposes of the TCPA. See id. at 7978. The FCC concluded that Glide was the “maker” of calls because it “automatically sends invitational texts of its own choosing to every contact in the app user’s contact list with little or no obvious control by the user.”

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See id. at 7983. By contrast, the FCC found that TextMe was not the “maker” of calls because it did not automatically send invitational texts; instead, its users had to select to whom, if anyone, they wished to send text invitations. See id. at 7984. The PrankDial call process, which relies entirely on a user-selected and entered telephone number to call, is substantially similar to TextMe’s process because “it is not programming its cloud-based dialer to dial any call, but merely ha[s] some role, however minor, in the causal chain that results in the making of a telephone call.” Id. Recent case law further supports the dismissal of Plaintiff’s TCPA claims because PrankDial’s users, not PrankDial, are the makers or initiators of the calls at issue. For example, this District recently applied the 2015 Order and held that a defendant cannot be liable for violating the TCPA where a plaintiff fails to establish that a defendant selects and dials phone numbers, even where a defendant inserts a prerecorded message into each call. Securus Techs., 120 F. Supp. 3d at 981–82. Other districts have reached similar conclusions. See, e.g., Cour v. Life360, Inc., No. 16-cv-00805, 2016 U.S. Dist. LEXIS 98945, at *11 (N.D. Cal. July 28, 2016). For instance, the court in Cour followed the 2015 Order and granted a defendant’s motion to dismiss, reasoning that the defendant was not the “maker” of the unwanted calls because “the person who chooses to send an

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unwanted [message] is responsible for invading the recipient’s privacy even if that person does not know how the invitation will be sent.” Like the plaintiffs in Securus and Cour, Plaintiff here has failed to allege that Defendants selected the call recipient or chose to send the calls in question. Plaintiff also has failed to allege that Defendants chose the message content or the timing of the calls he purportedly received. The FCC definitively ruled in its 2015 Order—which courts in this District have found persuasive—that an application is not the “maker” of calls for purposes of the TCPA based on facts similar to those alleged by Plaintiff in this case. Accordingly, the Court should follow this well-established line of authority and dismiss Plaintiff’s TCPA claims. B.

Plaintiff fails to allege that the calls were made using an ATDS.

To state a TCPA claim, Plaintiff must establish that PrankDial used an ATDS to make the calls at issue. See 47 U.S.C. § 227(a)(1); Securus Techs., 120 F. Supp. 3d at 984–85 (dismissing TCPA claim when the plaintiff failed to establish that the defendant’s equipment satisfied the statutory definition of an ATDS). The TCPA defines an ATDS as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). The FCC has held that the defining characteristic of an ATDS is the capacity “to dial numbers without human intervention.” (2015 Order at 7973.) Thus, “where an application sends [texts] only at the user’s affirmative direction, 19

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the action taken is with human intervention, meaning that the equipment at issue is not an ATDS.” McKenna v. WhisperText, No. 5:14-cv-00424, 2015 U.S. Dist. LEXIS 120090, at *10 (N.D. Cal. Sept. 9, 2015). Further, “where a [p]laintiff’s own allegations suggest direct targeting that is inconsistent with the sort of random or sequential number generation required for an ATDS, courts conclude that the allegations are insufficient to state a claim for relief under the TCPA.” Duguid v. Facebook, Inc., No. 15-cv-00985, 2017 U.S. Dist. LEXIS 22562, at *10 (N.D. Cal. Feb. 16, 2017) (internal citation and quotation omitted). Plaintiff’s TCPA claims should be dismissed because Plaintiff fails to allege that the PrankDial application uses an ATDS. Plaintiff merely alleges that Defendants called him “through an automated electronic means” (see Am. Compl. ¶ 10) but does not allege any facts to support a finding that the PrankDial application uses equipment that could be characterized as an ATDS under the TCPA and authoritative case law (see generally id.). In WhisperText and Duiguid, the court dismissed TCPA claims with prejudice because the mobile applications at issue sent text messages (which are considered “calls” within the meaning of the TCPA, see Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009)) only to individuals selected by the user and did not have the capacity to generate random numbers. See Duiguid,

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2017 U.S. Dist. LEXIS 22562, at *15; WhisperText, 2015 U.S. Dist. LEXIS 120090, at *11–12. As in Duigid, Plaintiff has failed to allege that PrankDial sends calls “en masse to randomly or sequentially generated numbers.” Duigid, 2017 U.S. Dist. LEXIS 22572, at *11. Further, as in Duigid and WhisperText, the PrankDial application’s direct calling with human intervention is inconsistent with the existence of an ATDS. Plaintiff has failed to allege any facts to support a finding that the application dials numbers randomly as opposed to its users directing the application to contact a specific user-inputted telephone number. Accordingly, the Court may make no plausible inference that PrankDial’s application has the capacity to generate random or sequential numbers. Therefore, the Court should conclude that Plaintiff has failed to allege a required element of his TCPA claims and should dismiss those claims. C.

Plaintiff fails to allege that Defendants sent Plaintiff advertisements or solicitations as defined under the TCPA and its supporting regulations.

In addition to the substantive flaws in Plaintiff’s TCPA claims described above, Plaintiff’s claims fail because Plaintiff has not plausibly alleged that the calls he allegedly received contained “advertisements” or “solicitations” within the meaning of the TCPA and its implementing regulations. Under 47 C.F.R. § 64.1200(a)(2) and (c), Plaintiff must allege sufficient facts to support a finding that PrankDial initiated, or caused to be initiated, “any 21

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telephone call that includes or introduces an advertisement or constitutes telemarketing, using an automatic telephone dialing system or an artificial or rerecorded voice, to any of the lines or telephone numbers,” 47 C.F.R. § 64.1200(a)(2), or initiated a “telephone solicitation,” id. § 64.1200(c). In addition, under 47 C.F.R. § 64.1200(b)(3), Plaintiff must allege sufficient facts that the message containing an advertisement failed to provide an automated, interactive opt-out mechanism “for the called person to make a do-not-call request.” Id. § 64.1200(b)(3). The implementing regulations define “advertisements” as “material advertising the commercial availability or quality of any property, goods, or services.” Id. § 64.1200(f)(1). The regulations define “telephone solicitation,” in relevant part, as “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services.” Id. § 64.1200(f)(14). “The appropriate inquiry under the TCPA is not whether there is some ancillary commercial benefit to either party, but whether the message is an advertisement which tends to propose a commercial transaction.” Salmon v. CRST Expedited, Inc., No. 14-cv-0265, 2015 U.S. Dist. LEXIS 37560, at *14 (N.D. Okla. Mar. 25, 2015) (internal citation and quotation omitted). “The characterization of a call does not depend on the caller’s perception as to whether the call constitutes a solicitation or advertisement, but the ‘purpose of the

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message’ is what governs whether an autodialed call is a prohibited solicitation or advertisement.” Id. at *9 (citing In the Matter of Rules & Regulations the Tel. Consumer Prot. Act of 1991, 18 F.C.C.R. 14014, 14097 (2003)). Plaintiff has not plausibly alleged that any of the calls he purportedly received constitute either advertisements or solicitations under the TCPA or its regulations. Plaintiff alleges that he received only one call stating that he “had been pranked by prankdial.com,” which he claims supports a finding that it was an advertisement. (Am. Compl. ¶ 14.) However, the lone call with that content did not mention property, goods, or services; therefore, under the plain language of the TCPA and accompanying federal regulations—and under the clear law of this Circuit—the call was not an advertisement or solicitation. Golan v. Veritas Entm’t, LLC, 788 F.3d 814, 819 (8th Cir. 2015). In Golan, the Eighth Circuit addressed whether two unsolicited, prerecorded messages on the plaintiffs’ home phone line qualified as advertisements under the TCPA. Id. at 816. The Golan court held that “[b]ecause the messages did not mention, property, goods, or services, we agree that they were not advertisements prohibited by the TCPA or its implementing regulations.” Id. at 819. In addition, the identifier at the end of the call does not transform the entire call into an advertisement merely because it mentioned a website name. See Physicians Healthsource, Inc. v. Janssen Pharms., Inc., No. 12-2132, 2013 U.S.

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Dist. LEXIS 15952, at *20 (D. N.J. Feb. 6, 2013) (finding that contact information placed on a fax “is only incidental to the informational message of the fax and does not convert it into an advertisement”). Plaintiff has not even alleged that Defendants encouraged him to purchase PrankDial’s products or services during the call. Accordingly, the Court should dismiss Plaintiff’s TCPA claims because none of the alleged calls at issue contained an advertisement or solicitation in violation of the TCPA.

IV.

Plaintiff has not pleaded viable false advertising and invasion of privacy claims against Defendants. If the Court dismisses Plaintiff’s TCPA claims, it should refuse to extend

supplemental jurisdiction over Plaintiff’s state- and common-law-based false advertising and invasion of privacy claims. See Gibson v. Weber, 433 F.3d 642, 647 (8th Cir. 2006) (“[A] court may ‘decline to exercise supplementing jurisdiction over a claim . . . [if] the district court has dismissed all claims over which it has original jurisdiction.’”) (quoting 28 U.S.C. § 1367(c)(3)). However, even if the Court extends supplemental jurisdiction over Plaintiff’s false advertising and invasion of privacy claims, those claims must be dismissed because Plaintiff has failed to plead either claim with the requisite particularity or specificity. A.

Plaintiff’s MFSAA claim lacks the requisite particularity.

The MFSAA prohibits “any material assertion, representation, or statement of fact which is untrue, deceptive, or misleading” in an “advertisement of any 24

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sort.” Minn. Stat. § 325F.67 (2017). To state a MFSAA claim as a private citizen, Plaintiff “must demonstrate that its cause of action benefits the public.” Schulz v. Wells Fargo Bank, N.A., No. 12-2147, 2012 U.S. Dist. LEXIS 178505, at *8 (D. Minn. Dec. 18, 2012) (internal citation and quotation omitted). And Plaintiff’s claim needs to be pleaded with particularity. See Johnson v. Bobcat Co., 175 F. Supp. 3d 1130, 1145 (D. Minn. 2016) (applying Rule 9(b) to MFSAA claim); Kinetic Co., 672 F. Supp. 2d at 944 (same); Fed. R. Civ. P. 9(b). Plaintiff’s Amended Complaint fails on both counts. Plaintiff’s MFSAA claim must be dismissed because Plaintiff has failed to plead the claim with particularity. See Baker v. Best Buy Stores, LP, 812 N.W.2d 177, 184 (Minn. Ct. App. 2012) (upholding dismissal of MFSAA claim because the complaint did not satisfy the Rule 9(b) particularity standard). Plaintiff’s conclusory allegations regarding Defendants’ purported “soliciting services through deception” do not satisfy Rule 9(b) because Plaintiff does not specify any facts on which to base his allegation that Defendants’ “material assertion, representation, or statement of fact” was “untrue, deceptive, or misleading.” See Minn. Stat. § 325F.67. As described above, the PrankDial user—rather than the application itself or Defendants—initiates the call to a recipient that the user inputs.

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In addition, Plaintiff fails to allege with particularity that PrankDial’s audible identifier, “You’ve Been Pranked By PrankDial.com,” constitutes an “advertisement.” Plaintiff’s conclusory allegation that “Defendants include in their advertisement based profit services . . . ‘prankdial.com’ to solicit the recipients[’] business” does not contain the requisite level of specificity to satisfy Rule 9(b). (See Am. Compl. ¶ 139.) As described above, this audible identifier does not promote property, goods, or services but rather informs the recipient that the call from the user was a prank. Importantly, Plaintiff also fails to allege how his cause of action benefits the public. (See id. ¶ 142.) Because Plaintiff has not met Rule 9(b)’s pleading requirements, the Court should dismiss Plaintiff’s false advertising claim. B.

Plaintiff fails to state an actionable claim for invasion of privacy.

Plaintiff’s common law invasion of privacy must also be dismissed because “Plaintiff has failed to sufficiently allege the existence of an intrusion that could be considered by a jury to be ‘highly offensive’ or that is based on a ‘legitimate expectation of privacy.’” Mallak v. Aitkin Cty., 9 F. Supp. 3d 1046, 1065 (D. Minn. 2014). An invasion of privacy claim based on invasion upon seclusion is only actionable when “one intentionally intrudes, physically or otherwise upon the solitude or seclusion of another or his private affairs or concerns, if the intrusion would be highly offensive to a reasonable person.” Id. at 1064 (internal citation 26

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and quotation omitted). “To determine whether an interference is offensive, courts consider: the degree of intrusion, the context, conduct and circumstances surrounding the intrusion as well as the intruder’s motives and objectives, the setting in which he intrudes, and the expectations of those whose privacy is invaded and the number and frequency of the intrusive contacts.” Id. (internal citation and quotation omitted). The interference must be “substantial,” and “of a kind that would be highly offensive to the ordinary reasonable person, as the result of conduct to which the reasonable person would strongly object.” Id. (internal citation and quotation omitted). Plaintiff has failed to allege that the calls he received rise to the level of offensiveness required to state a claim for invasion of privacy. Compare Myers v. Aitkin Cty., No. 14-473, 2014 U.S. Dist. LEXIS 184165, at *62 (D. Minn. Dec. 29, 2014) (holding that accessing a driver’s license information is insufficient to state a claim for invasion of privacy), and Swarthout v. Mut. Serv. Life Ins. Co., 632 N.W.2d 741, 744–45 (Minn. Ct. App. 2011) (holding that obtaining and publicizing private medical information is insufficient to state a claim for invasion of privacy), with Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231, 235 (Minn. 1998) (holding that allegations that nude photographs of the plaintiffs had been publicized were sufficient to state a claim for invasion of privacy). Plaintiff alleges in a conclusory fashion that Defendants “ma[de] each call with the intent

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to harass and/or annoy Plaintiff,” “Plaintiff found the times of the calls and content of [the] calls highly offensive,” and that “Defendants in their acts did intentionally invade upon Plaintiff’s solitude,” but fails to provide any factual basis for these allegations. (See Am. Compl. ¶¶ 146, 148, 150.) Additionally, Plaintiff cannot overcome the fact that Defendants did not make or initiate the alleged calls. As described above, the PrankDial user, rather than the application itself or Defendants, made the calls to Plaintiff. Thus, Defendants could not have intruded on Plaintiff’s privacy. Further, Plaintiff has failed to sufficiently allege that the five calls he purportedly received could be considered by a jury to be “highly offensive.” Because Plaintiff has failed to sufficiently plead an invasion of privacy claim, that claim must be dismissed.

V.

The Court lacks jurisdiction because Plaintiff failed to properly serve Defendants. Finally, Plaintiff’s Amended Complaint should be dismissed on the

additional basis of Plaintiff’s failed service of process. See Printed Media Servs., Inc. v. Solna Web, Inc., 11 F.3d 838, 843 (8th Cir. 1993) (“If a defendant is improperly served, a federal court lacks jurisdiction over the defendant.”); Sieg v. Karnes, 693 F.2d 803, 807 (8th Cir. 1982) (“This principle remains true despite any actual notice a defendant may have of the lawsuit.”); Fed. R. Civ. P. 12(b)(5). Both the Federal Rules of Civil Procedure and the Minnesota Rules of Civil Procedure permit service of process to be made on an officer, managing agent, or 28

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other authorized agent. See Fed. R. Civ. P. 4(h); Minn. R. Civ. P. 4.03(c). But Plaintiff’s attempted service does not satisfy these requirements for serving a corporation. To begin, Plaintiff’s Proof of Service shows that service on Defendants was not addressed to an officer, managing or general agent, or an agent authorized to accept service. See Fed. R. Civ. P. 4(h)(1)(B); Minn. R. Civ. P. 4.03(c). Further, the process server did not attempt service on any agent authorized by appointment or by law to receive service of process. Plaintiff’s Proof of Service on Tapfury provides that service was attempted on “Misa Zuma,”3 who is not an authorized agent to receive service of process. (See ECF No. 23.) Plaintiff’s Proof of Service on KickBack provides that it was received by KickBack but again was attempted on Misa Zuma, who is not an authorized agent to receive service of process. (See ECF No. 24.) Plaintiff’s Proof of Service on PrankDial, LLC provides that service was attempted on “Misa Zuma,” who is not an authorized agent to receive service of process. (See ECF No. 25.) No service was attempted on Tapfury, LLC, an inactive company, although Tapfury, LLC remains a Defendant named in the Amended Complaint. (See Am. Compl.)

Although Plaintiff’s Proof of Service describes attempted service on “Misa Zuma,” in fact, service was attempted on Misa Azuma. 3

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Because Plaintiff did not properly serve Defendants, the Court lacks jurisdiction over Defendants and should dismiss the Amended Complaint based on insufficient service of process under Rule 12(b)(5). CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court dismiss the Amended Complaint with prejudice for lack of personal jurisdiction, failure to state a claim, and for improper service of process. Alternatively, Defendants request that the Court enter summary judgment in their favor.

Dated: April 6, 2017

Respectfully Submitted, By:

/s/Michael D. Reif Michael D. Reif (MN #0386979) ROBINS KAPLAN LLP 800 LaSalle Avenue Suite 2800 Minneapolis, MN 55402 Tel: (612) 349-0171 [email protected] Chelsea A. Walcker (MN #0396792) ROBINS KAPLAN LLP 399 Park Avenue Suite 3600 New York, NY 10022 Tel: (212) 980-7400 [email protected] Attorneys for Defendants Tapfury, LLC, Tapfury, Inc., Kickback, Inc., and Prankdial, LLC

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