Mark W Dobronski v. United Final Expense Services ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
MARK W. DOBRONSKI, UNPUBLISHED
April 21, 2022
Plaintiff-Appellant,
v No. 357057
Washtenaw Circuit Court
UNITED FINAL EXPENSE SERVICES, INC., and LC No. 20-000643-NZ
DOUGLAS CHARLES MASSI,
Defendants-Appellees,
and
CARLOS AYBAN BASTRADO and AMERICAN
INSURANCE BROKERS, LLC,
Defendants.
Before: BOONSTRA, P.J., and M. J. KELLY and SWARTZLE, JJ.
PER CURIAM.
This case involves violations of state and federal telemarketing laws allegedly committed
by defendants United Final Expense Services, Inc., a Florida corporation, and its owner Douglas
Massi, a Florida resident. Plaintiff, Mark Dobronski, sued defendants for these alleged violations
and defendants argued that the trial court lacked personal jurisdiction over them because they
lacked sufficient contacts in Michigan. The trial court agreed. We reverse.
I. BACKGROUND
In April 2020, Dobronski—a Michigan resident—received four calls from telemarketers
representing “Senior Benefits” or “American Senior Benefits.” The calls were made to
Dobronski’s cell phone number, which is listed on the national do-not-call registry, and came from
telephone numbers that could not be traced to the company making the calls. During the first call,
Dobronski gave the telemarketer “controlled identifying information.” The first call disconnected,
as did a second call. The third call came from a person who identified himself as “Kevin.” Kevin
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explained that he had called earlier and tried to put Dobronski through to his agent, but the line
had been busy. Kevin confirmed Dobronski’s controlled identifying information, but then said
that he would have to call back in a minute and ended the call. Kevin called back, confirmed
Dobronski’s controlled identifying information again, and then transferred him to a person
identified as “Mark.” Mark also verified Dobronski’s controlled identifying information, then
transferred him to a person who identified himself as “Carlos.” During the conversation that
followed, Dobronski learned that “Carlos” was Carlos Bastrado, the owner of American Insurance
Brokers, LLC. Dobronski also learned that American Insurance Brokers’s telemarketer was
United Final Expense Services.
Subsequently, Dobronski filed a six-count complaint against Bastrado, American
Insurance Brokers, Massi, and United Final Expense Services alleging violations of the federal
Telephone Customer Protection Act of 1991, 47 USC 227 et seq., Michigan’s Home Solicitation
Sales Act, MCL 445.111 et seq., and Michigan’s Telephone Companies as Common Carriers Act,
MCL 484.125. As part of his complaint, Dobronski alleged, “Upon information and belief, the
live agent telemarketers are employees, contractors, or agents of Defendants.” In lieu of an answer,
United Final Expense Services and Massi (referred to jointly hereafter as “defendants”) moved for
summary disposition under MCR 2.116(C)(1) on the basis that they resided in Florida and had no
contacts with the State of Michigan. They asserted that Dobronski had not alleged, and could not
establish, that defendants conducted activities in Michigan or had the minimum contacts in
Michigan necessary for the trial court to exercise personal jurisdiction over them.
Dobronski responded, arguing that the trial court had limited personal jurisdiction over
defendants because their conduct fell under Michigan’s long-arm statutes and the exercise of
limited personal jurisdiction over defendants met the requirements of due process. Dobronski
attached to his response a purchase agreement between Bastrado and defendants under which
Bastrado paid defendants $500 for 20 transfers, or leads. The purchase agreement provided, in
relevant part, the following explanation for how the transfers were generated from callers—
identified as “our marketer[s]”—believed to be based in India or Pakistan:
A. Prospect is called by our marketer and told that we have a new
affordable/low cost final expense plan available for seniors that covers funeral
and final expenses
B. Prospect is asked if they want a quote for themselves or if it there is a
spouse
C. Prospect is asked to hold while they’re connected to a licensed agent
[D.] Call is handed off from telemarketer, marketer tells agent the name and
age of client
[E.] Agent gets a recording of all transfers.
The purchase agreement instructed Bastrado to select which states to call and urged him to select
multiple states because doing so would result in more transfers. Bastrado selected four states:
Indiana, Illinois, Ohio, and Michigan. Dobronski also attached a press release from the Michigan
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Attorney General stating that the Attorney General had joined a national task force to combat
“illegal robocalls.”
Defendants asserted in reply that they did not place any calls to Dobronski and were not
affiliated with the third-party call center that placed the calls. Defendants also asserted that they
never called Dobronski or any other Michigan residents and did not have any business contacts in
Michigan. Defendants attached to their reply an unnotarized affidavit provided by Massi asserting
these same points.
The trial court held a hearing and the parties argued consistent with their briefs. At the
conclusion of oral argument, the trial court stated that it was “satisfied by defendants’ arguments
that personal jurisdiction does not lie in this court on these claims and for the reasons stated in
defendants’ motion, brief and reply.” The trial court issued a corresponding order granting
defendants’ motion for summary disposition and dismissed Dobronski’s lawsuit without prejudice.
This appeal followed.
II. ANALYSIS
This Court reviews de novo a trial court’s decision on a motion for summary disposition,
as well as the legal questions whether a trial court possesses personal jurisdiction over a party and
whether the exercise of personal jurisdiction over a nonresident “is consistent with the notions of
fair play and substantial justice required by the Due Process Clause of the Fourteenth
Amendment.” Yoost v Caspari, 295 Mich App 209, 219; 813 NW2d 783 (2012). When deciding
a motion for summary disposition brought under MCR 2.116(C)(1), the court must accept the
plaintiff’s complaint as true unless contradicted by affidavits or other evidence and “consider the
pleadings and documentary evidence submitted by the parties in a light most favorable to the
nonmoving party.” Id. at 221; MCR 2.116(G)(5).
Jurisdiction over a party can be either general or limited. Oberlies v Searchmont Resort,
246 Mich App 424, 427; 633 NW2d 408 (2001). General jurisdiction exists “when a defendant’s
contacts with the forum state are of such nature and quality as to enable a court to adjudicate an
action against the defendant, even when the claim at issue does not arise out of the contacts with
the forum.” Id. Defendants’ contacts with Michigan are insufficient for the trial court to exercise
general jurisdiction over defendants so Dobronski must rely on limited jurisdiction. When a
defendant’s contacts with Michigan are insufficient to allow Michigan courts to exercise general
jurisdiction, “jurisdiction may be based on the defendant’s specific acts or contacts with
[Michigan].” Id. Michigan’s long-arm statutes, MCL 600.705 and MCL 600.715, allow courts to
take limited jurisdiction over nonresident individuals and corporations respectively. Id.Determining whether the trial court may exercise limited personal jurisdiction over a
nonresident individual or corporation requires a two-step analysis. Yoost, 295 Mich App at 222.
First, the court determines whether jurisdiction is authorized by Michigan’s long-arm statutes. Id.
Second, the court determines whether the exercise of jurisdiction comports with the requirements
of the Due Process Clause of the Fourteenth Amendment, US Const, Am XIV. Id. “Both prongs
of this analysis must be satisfied for a Michigan court to properly exercise limited personal
jurisdiction over a nonresident.” Id.
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A. LONG-ARM STATUTES
Dobronski argues that the long-arm statutes grant the trial court limited jurisdiction over
defendants. MCL 600.705, provides, in relevant part, that acts creating the following relationships
establish limited jurisdiction over individuals:
(1) The transaction of any business within the state.
(2) The doing or causing an act to be done, or consequences to occur, in the
state resulting in an action for tort. [MCL 600.705.]
MCL 600.715 contains almost identical language regarding limited jurisdiction over corporations
except that it applies to “any act to be done” instead of “an act to be done.”
Dobronski contends that defendants’ conduct fell within the long-arm statutes because the
calls he received were the transaction of business. He also argues that the calls he received
constituted torts. Dobronski’s evidence suggested that defendants acted as intermediaries between
Bastrado (and his company, American Insurance Brokers) and telemarketers thought to be located
in India. Bastrado paid defendants for transfers to sell a “final expense plan.” As directed by the
purchase agreement, Bastrado selected four states he wanted to receive transfers from: Indiana,
Illinois, Ohio, and Michigan.
It is undisputed that defendants did not physically engage in any activities in Michigan.
Defendants are located in Florida, Bastrado is located in Indiana, and the sale of transfers to
Bastrado appears to have been accomplished electronically. Dobronski has provided no evidence
suggesting that defendants personally transacted business or committed a tort in Michigan. But
Michigan’s long-arm statutes bring within their grasp individuals and corporations who, personally
or through their agents, transact business in Michigan, commit a tort in Michigan, or cause an act
to be done that results in an action for tort in Michigan. Dobronski alleged in his complaint, “Upon
information and belief, the live agent telemarketers are employees, contractors, or agents of
Defendants.” In addition, the purchase agreement referred to the telemarketer who would call
prospects in the states selected by Bastrado as “our marketer.” This statement, read in the light
most favorable to Dobronski, supports Dobronski’s assertion about the relationship between
defendants and the telemarketers in India.
Defendants argue that Massi’s “affidavit” contradicts Dobronski’s assertions. But Massi’s
“affidavit” was not notarized and, therefore, it is not a valid affidavit. See Detroit Leasing Co v
Detroit, 269 Mich App 233, 236; 713 NW2d 269 (2005). Accordingly, defendants have not
offered a valid affidavit to contradict Dobronski’s assertions and, therefore, we will not consider
the assertions in Massi’s submission. Without that submission, defendants have not presented any
information to contradict Dobronski’s assertion that their agents called him and, by doing so,
transacted business in Michigan. Thus, the long-arm statutes apply to defendants and the trial
court had personal jurisdiction over defendants subject only to due-process limitations.
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B. DUE PROCESS
Dobronski next argues that limited jurisdiction over defendants complies with due-process
requirements. “A defendant must ‘have certain minimum contacts with [the forum] such that
maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ”
WH Froh, Inc, v Domanski, 252 Mich App 220, 227; 651 NW2d 470 (2002), quoting Int’l Shoe
Co v Washington, 326 US 310, 319; 66 S Ct 154; 90 L Ed 95 (1945) (alteration in original). Due-
process analyses are case by case, and “a court should examine the defendant’s own conduct and
connection with the forum to determine whether the defendant should reasonably anticipate being
haled into court there.” WH Froh, Inc, 252 Mich App at 231. See also Ford Motor Co v Montana
Eighth Judicial Dist Court, ___ US ___, ___; 141 S Ct 1017, 1024-1025; 209 L Ed 2d 225 (2021).
To determine whether the exercise of jurisdiction comports with due process, courts use
the following three-part test:
First, the defendant must have purposefully availed himself of the privilege of
conducting activities in Michigan, thus invoking the benefits and protections of this
state’s laws. Second, the cause of action must arise from the defendant’s activities
in the state. Third, the defendant’s activities must be substantially connected with
Michigan to make the exercise of jurisdiction over the defendant reasonable. [Id.
at 223 (quotation marks and citation omitted).]
In Khalaf v Bankers & Shippers Ins Co, 404 Mich, 153-154; 273 NW2d 811 (1978), our Supreme
Court explained “purposeful availment” as follows:
A “purposeful availment” is something akin either to a deliberate undertaking to do
or cause an act or thing to be done in Michigan or conduct which can be properly
regarded as a prime generating cause of the effects resulting in Michigan,
something more than a passive availment of Michigan opportunities. The
defendant will have reason to foresee being “haled before” a Michigan court.
The requirement of purposeful availment “ensures that a corporation will not be subjected to
jurisdiction on the basis of random, fortuitous, or attenuated contacts.” Jeffrey v Rapid American
Corp, 448 Mich 178, 187; 529 NW2d 644 (1995).
The purchase agreement asked Bastrado to identify states from which he would like to
receive transfers. The purchase agreement did not limit which states Bastrado could choose and
actually stated that it was better for Bastrado to select multiple states. From this menu of fifty
options, Bastrado chose four: Indiana, Illinois, Ohio, and Michigan. Accordingly, based on the
plain language of the purchase agreement, defendants offered to provide Bastrado transfers from
calls placed in Michigan, among other states. Bastrado’s call with Dobronski would not have
occurred absent this agreement, and we must view Bastrado as defendants’ agent given the
procedural posture of this case. Thus, defendants caused the complained-of calls. This action was
a deliberate undertaking and gave defendants reason to foresee that they could be haled before
Michigan courts. Accordingly, the first part of the due-process test has been met.
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The second part of the due-process test looks at whether Dobronski’s causes of action arise
from defendants’ activities in the state. Defendants did not call Dobronski directly. But their
alleged agents did call Dobronski while he was present in Michigan. Dobronski’s causes of action
arise from those calls. Consequently, Dobronski’s causes of action arise from activities in
Michigan, fulfilling the second part of the due-process test.
The third prong of the due-process test requires defendants’ activities to be substantially
connected with Michigan so as to make the exercise of jurisdiction over defendants reasonable.
See Yoost, 295 Mich App at 223. This factor balances the burden on the defendant against
the forum State’s interest in adjudicating the dispute; the plaintiff’s interest in
obtaining convenient and effective relief, at least when that interest is not
adequately protected by the plaintiff’s power to choose the forum; the interstate
judicial system’s interest in obtaining the most efficient resolution of controversies;
and the shared interest of the several States in furthering fundamental substantive
social policies. [WH Froh, Inc, 252 Mich App at 232-233 (cleaned up).]
Additionally, “a defendant who purposely has directed his activities at a forum’s residents must
present a compelling case that the presence of other considerations render the forum’s exercise of
jurisdiction unreasonable.” WH Froh, Inc, 252 Mich App at 233.
Michigan has an interest in preventing its residents from receiving illegal telemarketing
calls. The Legislature has passed multiple laws on the issue demonstrating its interest in the area.
Additionally, the Attorney General has joined a national taskforce focused on the issue of illegal
telemarketing calls. Michigan courts are best suited to address these issues rather than defendants’
home forum of Florida because many of Dobronski’s claims require the interpretation of Michigan
law. Additionally, as addressed earlier, defendants purposely directed activities at Dobronski, a
Michigan resident, through their agents’ actions. Each of these factors support litigating this case
in Michigan, and defendants have not presented a compelling reason to do otherwise. Thus, all
three factors of the due-process test support exercising personal jurisdiction over defendants.
III. CONCLUSION
For the reasons stated in this opinion, we reverse the trial court’s order granting summary
disposition to defendants and remand for further proceedings consistent with this opinion. We do
not retain jurisdiction. Dobronski, as the prevailing party, may tax costs under MCR 7.219.
/s/ Mark T. Boonstra
/s/ Michael J. Kelly
/s/ Brock A. Swartzle
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