Betz v. Aidnest ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
NAEEM BETZ, )
)
Plaintiff, )
)
v. ) No. 1:18-cv-0292 (KBJ)
)
AIDNEST, )
)
Defendant. )
)
MEMORANDUM OPINION ADOPTING
REPORT & RECOMMENDATION OF THE MAGISTRATE 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
1
Page numbers herein refer to those that the Court’s electronic case filing sy stem automatically
assigns.
2
The Report and Recommendation is attached hereto as Appendix A.
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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
3
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 j urisdiction 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. A s a result, the instant case
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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 .
DATE: October 26, 2018 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge
3
It appears that Betz is a repeat filer who has brought a number of unsuccessful TCPA claims in this
district against various out-of-state defendants, each of which has been dismissed for lack of personal
jurisdiction over the defendants. (See R & R at 2 n.1 (citing other TCPA cases brought by Plaintiff).)
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