United States District Court, N.D. Illinois, Eastern Division
Scott MACKEY and Daniel Hernandez, on behalf of themselves and others similarly situated, Plaintiffs,
IDT ENERGY, INC., Defendant.
Anthony Paronich, Edward A. Broderick, Pro Hac Vice,
Broderick & Paronich, P.C., Boston, MA, Matthew McCue,
Pro Hac Vice, Law Office of Matthew McCue, Natick, MA, Samuel
J. Strauss, Pro Hac Vice, Turke & Strauss LLP, Madison,
WI, Alan W. Nicgorski, Joseph J. Jacobi, Hansen Reynolds LLC,
Chicago, IL, Michael C. Lueder, Hansen Reynolds LLC,
Milwaukee, WI, for Plaintiffs.
C. Cyrulnik, Pro Hac Vice, Motty Shulman, Pro Hac Vice, Boies
Schiller & Flexner, LLP, Armonk, NY, Bennett W. Lasko,
Lasko Legal Services Ltd., Chicago, IL, for Defendant.
OPINION AND ORDER
E. Bucklo, United States District Judge.
resident Scott Mackey and New Jersey resident Daniel
Hernandez filed an action against IDT, a Delaware
corporation, under the Telephone Consumer Protection Act, 47
U.S.C. § 227 ("TCPA"). They seek to represent
two nationwide classes comprising: 1) individuals who
received calls on their cell phones that IDT made using an
automatic telephone dialing system; and 2) individuals whose
phone numbers were on the National Do-Not-Call Registry and
who received multiple calls from IDT within a one-year
me is IDT's motion for summary judgment of
Hernandez's claims, which argues that I lack personal
jurisdiction over IDT with respect to those claims. For the
reasons that follow, the motion is granted.
allege that Hernandez received telemarketing calls on his
cell phone from or on behalf of IDT beginning in March of
2018. At the time, Hernandez's number was on the National
Do-Not-Call Registry. Plaintiffs allege that IDT's
unwanted calls to Hernandez continued at a rate of three to
four calls per day over the next several weeks, despite
Hernandez's requests that IDT stop calling him. In their
response to defendant's motion for summary judgment,
plaintiffs state that Hernandez was called on a New Jersey
telephone number and that Hernandez was in New Jersey when he
received the unwanted calls. Plaintiffs do not claim that
Hernandez received any calls in Illinois or on an Illinois
argues that under Bristol-Myers Squibb Co. v. Superior
Court of California, San Francisco Cty., ___ U.S. ___,
137 S.Ct. 1773, 198 L.Ed.2d 395 (2017), these facts do not
support the exercise of specific personal jurisdiction over
it with respect to Hernandez's claims.
Bristol-Myers was a mass tort action in which a
group of primarily non-California residents injured outside
of California asserted claims in a California state court
against a pharmaceutical company not subject to general
jurisdiction in California. Reaffirming the well-settled
principle that due process requires a "connection
between the forum and the specific claims at issue," 137
S.Ct. at 1781, the Court reversed the California Supreme
Court's conclusion that the state courts had specific
personal jurisdiction over the claims brought by the
nonresident plaintiffs. Id. at 1776 ("The mere
fact that other plaintiffs [were harmed] in
California does not allow the State to assert specific
jurisdiction over the nonresidents' claims.")
acknowledge that Hernandez's claims do not arise out of
any contact IDT had with him in Illinois. In their view,
however, the jurisdictional limits the Court imposed in
Bristol-Myers apply only to state courts considering
claims brought by out-of-state plaintiffs who allege
out-of-state injuries, and do not restrict federal
courts' exercise of personal jurisdiction over defendants
sued by out-of-state plaintiffs asserting federal claims.
Although plaintiffs' argument is not without some support
in the case law, see e.g., Sloan v. General Motors
LLC, 287 F.Supp.3d 840 (N.D. Cal. 2018); In re
Chinese-Manufactured Drywall Prods. Liability Litig.,
2017 WL 5971622 (E.D. La. Nov. 30, 2017), it has not met with
success in any court of this district.
numerous courts in this district have construed
Bristol-Myers as cabining their exercise of personal
jurisdiction over defendants sued by out-of-state plaintiffs
for out-of-state injuries, including in the context of claims
asserted under the TCPA. See, e.g., Practice Mgmt.
Support Servs., Inc. v. Cirque du Soleil, Inc., 301
F.Supp.3d 840 (N.D. Ill. 2018) (no personal jurisdiction over
defendant with respect to out-of-state plaintiff's TCPA
claims); Garvey v. Am. Bankers Ins. Co. of Fla., No.
17 C 986, 2019 WL 2076288 (N.D. Ill. May 10, 2019) (same);
America's Health and Resource Ctr., Ltd. v.
Promologics, Inc., No. 16 C 9281, 2018 WL 3474444, at *4
(N.D. Ill. Jul 19, 2018) (same). See also Leppert v.
Champion Petfoods USA Inc., No. 18 C 4347, 2019 WL
216616, at *4 (Jan. 16, 2019) (rejecting argument that
Bristol-Myers does not apply in the context of
multistate class actions); Al Haj v. Pfizer Inc.,
338 F.Supp.3d 741, 752 (N.D. Ill. 2018) (dismissing the
claims of a non-resident plaintiff in a putative nationwide
class action even though his claims were identical to those
of a resident plaintiff); Greene v. Mizuho Bank,
Ltd., 289 F.Supp.3d 870, 873-75 (N.D. Ill. 2017) (same).
I share the view expressed by my colleagues in these cases
and conclude that the general principle articulated in
Bristol-Myers— that due process requires a
"connection between the forum and the specific claims at
issue," 137 S.Ct. at 1781—prevents me from
exercising specific personal jurisdiction over IDT with
respect to Hernandez's claims.
argue that even if the absence of any connection between
Illinois and Hernandez's claims would otherwise undercut
specific personal jurisdiction, I may nevertheless exercise
jurisdiction under the doctrine of "pendent personal
jurisdiction" because Hernandez's claims and
Mackey's claims are based on a common nucleus of
operative facts. Resp. at 8-9. It is true that the Seventh
Circuit has recognized the doctrine of pendent personal
jurisdiction in cases involving federal statutes that
authorize nationwide service of process. Robinson
Engineering Co. Pension Plan and Trust v. George, 223
F.3d 445, 449 (7th Cir. 2000). But the TCPA is not such a
statute. Accordingly, Illinois law determines the limits of
personal jurisdiction, and the principles of
Bristol-Myers apply. See Practice
Management, 301 F.Supp.3d at 862.
as an alternative to specific jurisdiction, plaintiffs argue
that general jurisdiction over IDT may be appropriate based
on: 1) the company's Illinois business activities as
alleged in an unrelated case the Illinois Attorney General
brought against it in Illinois state court; and 2) the fact
that IDT is the defendant in a declaratory judgment brought
by its insurer in this district. See Resp. at 12-13
(citing People of the State of Illinois ex rel. Lisa
Madigan v. IDT ENERGY, INC., No. 2018CH14380, 2018 WL
6198824 (Ill. Cir. Ct. Nov. 19, 2018), and Twin City Fire
Insurance Company v. IDT Energy, Inc., No.
1:19-cv-03617, 2019 WL 2332369 (N.D. Ill. 2019). With respect
to the first point, plaintiff's unadorned reference to
the number of customers the Illinois Attorney General alleges
that IDT has in Illinois falls far short of establishing that
the company can be "fairly regarded as at home" in
Illinois. Bristol-Myers, 137 S.Ct. at 1780 (quoting
Goodyear Dunlop Tires Operations, S.A. v. Brown, 564
U.S. 915, 924, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011)).
See also Leppert, 2019 WL 216616, at *3 (once
personal jurisdiction has been challenged, plaintiff bears
the burden of showing that jurisdiction exists). As for
plaintiffs' second point, numerous cases have held ...