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Roylance v. Carney

United States District Court, N.D. California, San Jose Division

April 23, 2014

GERALD ROYLANCE, Plaintiff,
v.
JOSEPH CARNEY, et al., Defendants.

ORDER GRANTING-IN-PART DEFENDANTS' MOTION TO DISMISS (RE: DKT NO. 22)

PAUL S. GREWAL, Magistrate Judge.

Before the court is Defendants Joseph and Sean Carney's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(2) and 12(b)(6).[1] Plaintiff Gerald Roylance opposes. The parties appeared for a hearing.[2] After considering the arguments, both at the hearing and in the papers, the court GRANTS the Carneys' motion, but only IN PART.

I. BACKGROUND

Gerald Roylance, a resident of Mountain View, alleges that Defendants Joseph Carney, Sean Carney, Environmental Safety International, Inc., Environmental Products Inc., Septic Safety, Inc. and D.J.C. Holding Corporation violated the Telephone Consumer Protection Act by engaging in unlawful telemarketing.[3] Roylance specifically alleges he received two unlawful telephone solicitations on his home telephone in 2009 and 2011.[4] Roylance alleges the Carneys are residents of New Jersey.[5]

The complaint alleges Joseph is the president of one or more of defendant corporations, that Joseph "controls or controlled" the corporations, that Joseph's name was "involved" in the shipment of a product, that a 2004 FCC citation issued against the defendant corporations was sent to Joseph's attention, that Joseph's name was included in a brochure and that letters from plaintiff were addressed to Joseph.[6]

The complaint alleges Sean is the vice president of one or more of the defendant corporations, that Sean "controls or controlled" them, that a 2004 FCC citation issued against defendant corporations was sent to Sean's attention and that plaintiff sent Sean a letter.[7] The complaint also alleges:

Many defendants share telephone numbers, addresses, common control, and offer the same or similar products. On information and belief, many defendant entities are alter egos of each other and/or the individual defendants.[8]

No other allegations are directed towards Joseph and Sean.

As previewed above, Roylance's complaint arises from an unsolicited telephone solicitation for a product called Activator 1000 on September 14, 2009.[9] Roylance responded to the solicitation and left a message.[10] Roylance then received a telephone call from a person named Dan Taylor who said his company was called Activator 1000.[11] Roylance purchased the solicited product, [12] later received telephone calls seeking payment for that purchase[13] and after receiving the product sent a "cancellation letter" to Joseph at a company not named as a defendant, asking for a return shipping address.[14] Roylance received a return shipping label, returned the product, and filed a submission with the FCC.[15] Roylance also sent a letter demanding to be placed on the "company specific do-not-call list" and that he be provided the company do-not-call policy, which Roylance claims was never received.[16]

Roylance alleges he received a second unsolicited call on April 6, 2011 from "Tom" with "Septic Care" who knew that he had purchased Activator 1000 before and offered him Activator 2000.[17] Roylance complained that he was on a do-not-call list and asked for a company name and address, which was not provided.[18] Roylance orally demanded to be placed on the do-not-call list of the unspecified company and that he be provided with a copy of the do-not-call policy, which was never received.[19]

Based on these alleged facts, Roylance prayer seeks damages for ten violations of the TCPA, [20] trebling[21] and punitive damages.[22] Roylance additionally brings state law claims for unfair business practices and unfair advertising for which he seeks injunctive relief only.[23] Roylance also requests attorney's fees even though he is pro se.[24]

II. LEGAL STANDARDS

A. Fed.R.Civ.P. 12(b)(2)

"In a motion challenging personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure, the plaintiff, as the party seeking to invoke the jurisdiction of the federal court, has the burden of establishing that jurisdiction exists."[25] "Where, as here, there is no federal statute that governs personal jurisdiction, the Court must apply the law of the state in which it sits."[26] In this case, because "California's long-arm jurisdictional statute is coextensive with federal due process requirements, the jurisdictional analyses under state law and federal due process are the same."[27] That is, for this court to exercise personal jurisdiction over Defendants, each ...


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