Lowe v. CVS Pharmacy, Inc.

Citations: 233 F. Supp. 3d 636; 2017 WL 528379; 2017 U.S. Dist. LEXIS 18352Docket: 14 C 3687

Court: District Court, N.D. Illinois; February 8, 2017; Federal District Court

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Plaintiffs Carl Lowe and Kearby Kaiser have initiated legal action against CVS Pharmacy, Inc., MinuteClinic, LLC, and West Corporation under the Telephone Consumer Protection Act (TCPA) and the Illinois Automatic Telephone Dialers Act (ATDA). They allege that the defendants utilized an automated system to make unsolicited prerecorded calls to them and others.

Defendants moved to dismiss the claims against MinuteClinic and any claims related to a September 11, 2013 call to Plaintiff Kaiser, arguing that this call does not establish personal jurisdiction. However, the court denied the motion to dismiss. 

The September 11 call, placed by CVS and MinuteClinic through West's auto-dialing service, was an unsolicited communication informing Kaiser about the availability of flu shots at MinuteClinic, which he had previously visited in Illinois. This call served as the basis for Kaiser’s claims against MinuteClinic. The plaintiffs filed their complaint on May 20, 2014, asserting the court's personal jurisdiction over the defendants based on their business presence and the events occurring within the district.

During discovery, Kaiser testified that he could not recall the caller's identity due to receiving numerous unsolicited calls at that time and had only listened to the September 11 call once in the past three years. He noted that he did not answer his phone while on vacation in 2013, leading to confusion regarding the source of the call.

Kaiser was questioned about his whereabouts during a call on September 11, 2013, initially stating he might have been in Thailand but later expressing uncertainty about his location. Defendants filed a motion to dismiss under Rule 12(b)(2), arguing that Kaiser’s testimony indicated a lack of personal jurisdiction over MinuteClinic and related defendants. In response, Kaiser provided an errata sheet correcting his deposition to assert he was in Illinois, along with an affidavit and supporting documents such as a personal calendar, timesheets, and financial records.

The legal standard requires that if a court lacks personal jurisdiction, it must dismiss the case against that party. The plaintiff bears the burden of proving personal jurisdiction, which depends on whether an evidentiary hearing has occurred. In this case, since there are no material facts in dispute and no hearing has been requested, the court will analyze MinuteClinic's jurisdictional objections.

Kaiser argued that Defendants waived their personal jurisdiction objections by failing to raise them in a timely manner and actively participating in the litigation for almost two years. The Court determined that Defendants adequately preserved their objections by denying the jurisdictional allegations in their answer. While Kaiser noted that Rule 12(h) requires objections to be raised in a motion or responsive pleading, courts have consistently ruled that a denial of jurisdictional allegations in an answer is sufficient to avoid formal waiver. Additionally, even if not formally waived, conduct can lead to a waiver of such defenses.

A defendant can waive a personal jurisdiction defense by creating a reasonable expectation for the plaintiff that it will defend the case on its merits or by causing the court to expend effort that would be wasted if personal jurisdiction is later deemed insufficient. In this case, the court determined that the defendants waived their personal jurisdiction objections through their conduct. Although the defendants initially denied jurisdictional allegations in their answer filed on October 2, 2014, they actively participated in extensive discovery for nearly two years before moving to dismiss based on personal jurisdiction. This participation led the plaintiffs to reasonably believe the defendants intended to contest the claims on the merits. The defendants argued that their conduct should be excused due to lack of awareness of the facts concerning the defense revealed during a deposition; however, this contradicted their earlier denial of jurisdictional claims. The court noted that the defendants could have sought clarification on personal jurisdiction early in the discovery process. Consequently, the court concluded that the defendants waived their objections. Nonetheless, acknowledging that the basis for their objections emerged recently, the court decided to address the merits of the defendants’ personal jurisdiction claims. The determination of jurisdiction over MinuteClinic relies on the Due Process Clause of the Fourteenth Amendment and Illinois's long-arm statute, which allows jurisdiction to the extent permitted by the U.S. Constitution, focusing on whether the defendants have sufficient “minimum contacts” with Illinois to satisfy traditional notions of fair play and substantial justice.

A defendant must have established minimum contacts with the forum state to reasonably anticipate being summoned to court there. Personal jurisdiction is categorized as general or specific; Kaiser acknowledges the lack of general personal jurisdiction over MinuteClinic. Specific personal jurisdiction requires that the defendant has purposefully directed activities at the forum state or availed themselves of conducting business there, with the injury arising from these activities. For Kaiser’s TCPA claim, treated as an intentional tort, the Seventh Circuit outlines three requirements for purposeful direction: 1) intentional conduct, 2) conduct aimed at the forum state, and 3) knowledge that the effects would be felt in the forum state. The third requirement implies that the injury must be linked to the forum state. Additionally, the defendant’s contacts must relate directly to the plaintiff's injury. While the Supreme Court and Seventh Circuit have not defined the necessary causal relationship, a mere 'but for' connection is insufficient. 

The dispute centers on whether Kaiser was injured in Illinois. The defendants argue that personal jurisdiction is lacking because Kaiser’s deposition indicates he did not receive the call in Illinois. Kaiser counters that his testimony was ambiguous and that he did receive the call in Illinois, also asserting that jurisdiction exists even if the call occurred outside the state. The Court finds that, even if the call was made while Kaiser was abroad, personal jurisdiction over MinuteClinic is established. However, the Court also notes that Kaiser’s deposition does not definitively prove he was outside the U.S. when he received the call. Kaiser was uncertain about the details of the call and acknowledged receiving multiple robocalls around that time, indicating he was on vacation overseas but could not specify his location during the call in question.

Kaiser demonstrated unfamiliarity with the specifics of the calls he received, including the one from MinuteClinic on September 11, 2013, amid numerous robocalls and recorded messages in September 2013. His testimony raises doubts about whether he confused the MinuteClinic call with others received while on vacation. Although he affirmed the allegations in the complaint, including that he received the call in Illinois, his deposition testimony's inconsistencies prompted the Court to consider his subsequent affidavit. In this affidavit, Kaiser confirmed he was in Illinois when he received the call, which the Court found sufficient to establish personal jurisdiction. The Court acknowledged the "sham affidavit rule," noting it does not apply here due to plausible explanations for inconsistencies, such as memory lapses. Even if Kaiser’s deposition suggested he was overseas during the call, personal jurisdiction could still exist since he would have received the voicemail upon returning to Illinois. The Court concluded that MinuteClinic’s actions—placing a call to an Illinois-area code and leaving a message soliciting a customer—constituted purposeful direction, justifying the exercise of jurisdiction. Previous court rulings support that calls to state-affiliated numbers violating the TCPA are adequate for establishing personal jurisdiction.

Kaiser’s receipt of a voicemail from MinuteClinic upon returning to Illinois is deemed sufficient to establish personal jurisdiction under the Telephone Consumer Protection Act (TCPA). The court notes that prerecorded voicemails can form the basis for a cause of action, regardless of when they are retrieved. The voicemail, which was directed to an Illinois area code and obtained during a previous visit to a MinuteClinic in Illinois, explicitly encouraged Kaiser to visit a local MinuteClinic, indicating purposeful direction towards Illinois. Defendants' argument that jurisdiction could be improperly established based on the state where a voicemail is retrieved, rather than where the call originated, is dismissed as they should have anticipated Kaiser would listen to the voicemail in Illinois. The court concludes that MinuteClinic's actions were sufficiently directed at Illinois, and Kaiser’s injury is directly linked to those activities. The exercise of jurisdiction aligns with principles of fair play and substantial justice, particularly since MinuteClinic has engaged in litigation in this court for over two years. Consequently, the court denies the defendants' motion to dismiss, affirming its personal jurisdiction over MinuteClinic. Additionally, the plaintiffs' amended complaint specifies CVS as having retail locations involved, and the defendants' answer reflects this acknowledgment while asserting jurisdictional denials as warranted under the Federal Rules of Civil Procedure.

Defendants failed to identify any material facts in dispute, negating the need for an evidentiary hearing. They contested that Kaiser’s blanket affirmation should not outweigh a specific sworn statement that contradicts it, arguing this is illogical. However, the Court noted that it was Defendants’ counsel who prompted the testimony following Kaiser’s claim of being overseas during the call. The affirmation raises doubts about the specificity of the testimony provided, and combined with Kaiser’s deposition, is sufficient to demonstrate personal jurisdiction. The Court opted not to consider Kaiser’s attempted corrections to his deposition or additional materials supporting his affidavit. The sham affidavit rule, typically relevant in summary judgment contexts, was acknowledged but deemed not applicable here due to the lack of defendants citing relevant cases. Even if applicable, the rule pertains only to unbelievable and unexplained changes in testimony, requiring a case-by-case examination. Defendants disputed the credibility of Kaiser’s assertion that he listened to the voicemail in Illinois, but the Court found that Kaiser’s clarifications addressed ambiguities in his prior testimony without presenting credible evidence to suggest he was elsewhere. The Defendants referenced a case where personal jurisdiction was declined based solely on cell phone prefixes, but the Court distinguished this case, noting that the conduct at issue involved a nationwide campaign, unlike the specific localized promotions in the referenced case. The Court concluded that there were adequate grounds for exercising jurisdiction over Defendants CVS and West based on the call in question, and Kaiser’s claims against them extend beyond this single incident.