United States District Court, N.D. California, San Jose Division
ORDER GRANTING WITHOUT LEAVE TO AMEND NATIONAL
ASSOCIATION OF REALTORS' MOTION TO DISMISS FOR LACK OF
PERSONAL JURISDICTION; GRANTING MOVE, INC'S AMENDED
MOTION TO COMPEL ARBITRATION; STAYING ACTION AND VACATING
CASE MANAGEMENT CONFERENCE [RE: ECF 25, 37]
LAB SON FREEMAN, United States District Judge.
the Court are two motions: (1) Defendant National Association
of Realtors' (“NAR”) Motion to Dismiss for
Lack of Personal Jurisdiction and Failure to State a Claim
(MTD, ECF 25); and (2) Defendant Move, Inc.'s
(“Move”) Amended Motion to Compel Arbitration and
to Dismiss, or in the Alternative, to Stay, the Case (MTC,
ECF 37). For the reasons discussed below, NAR's motion to
dismiss is GRANTED WITHOUT LEAVE TO AMEND, and Move's
motion to compel arbitration is GRANTED. The case is STAYED
pending arbitration, and the initial case management
conference set for July 18, 2019 is VACATED.
putative class action, Plaintiff Courtney Silverman alleges a
single cause of action against Defendants NAR and Move for
advertising text messages that violated the Telephone
Consumer Protection Act (“TCPA”), 47 U.S.C.
§ 227. See First Am. Compl. (“FAC”)
¶¶ 78-84, ECF 56. Plaintiff, a citizen and resident
of Florida, is a licensed real estate sales associate and a
member of NAR. FAC ¶ 8. NAR, an Illinois corporation,
owns and promotes the domain realtor.com, which NAR describes
as its official website. FAC ¶¶ 2, 12. Realtor.com
has its headquarters in California. FAC ¶ 14.
Realtor.com is the promotional hub for NAR and its members,
which allows realtors to market homes to consumers and allows
realtors to develop leads on consumers' behalves. FAC
¶¶ 15, 29-32, 45. NAR provides numerous resources,
services, and benefits for its members through Realtor.com.
FAC ¶¶ 33-34.
California corporation, operates the website for NAR under a
licensing agreement. FAC ¶¶ 3, 11, 20. In 1996, NAR
and Move entered into a “strategic partnership”
via a perpetual marketing agreement and trademark license
through which Move operates Realtor.com. FAC ¶ 22. This
agreement is governed by California law. FAC ¶ 23.
Through this agreement, NAR engaged Move to promote
Realtor.com and its services to real estate professionals,
which includes the text messages at issue in this action. FAC
¶ 24. While Move operates Realtor.com, ultimately NAR
has control over the site and final approval over the
site's advertising and branding. FAC ¶¶ 36, 46.
Move has stated in its SEC filings that NAR has
“significant influence” over its corporate
governance, including that the two companies share
confidential information, officers, board members, logos, and
approve some of each other's mergers and directors. FAC
and NAR, jointly and as agents of one another, allegedly sent
unsolicited advertising text messages to real estate
professionals, including Plaintiff and the putative class,
who were members of NAR, in order to promote Realtor.com and
its services. FAC ¶¶ 4-6, 19, 25, 44, 48, 49, 54.
Defendants had previously obtained the cellphone numbers of
Plaintiff and the class and “purportedly their
consents” to receive emails from Realtor.com. FAC
¶¶ 49-51. This agreement also allowed members to
opt out or unsubscribe from such messages. FAC ¶ 55.
Pursuant to the agreement, Plaintiff and the class members
unsubscribed, but Defendants continued to send the text
messages. FAC ¶¶ 56-62.
on Defendants' actions, Plaintiff filed her Complaint
here on September 26, 2018, asserting a single TCPA claim.
See ECF 1. She brings this claim on behalf of a
nationwide class of individuals defined as, “[w]ithin
the applicable statute of limitations, all persons in the
United States to which and to whom Defendants sent or caused
to be sent a text message stating ‘realtor.com'
using an ATDS after receiving the reply text message:
‘Stop.'” FAC ¶ 70. Excluded from the
class are those who entered into arbitration agreements with
Move that had not yet expired. FAC ¶ 71.
December 10, 2018, NAR filed its motion to dismiss for lack
of personal jurisdiction and failure to state a claim. ECF
25. Plaintiff never opposed this motion. On the same day,
Move filed a motion to compel arbitration. ECF 27. On
December 20, 2018, the Court granted the parties'
stipulation to extend Plaintiff's deadline to oppose the
motions to January 23, 2019. ECF 31. On January 23, 2019,
Move filed an amended motion to compel arbitration, which is
at issue here. ECF 37. On January 28, 2019, without moving
for leave of Court or obtaining a stipulation from
Defendants, Plaintiff filed an amended complaint. ECF 41. On
March 6, 2019, the Court granted Defendants' motion to
strike Plaintiff's amended complaint. ECF 50. On March 7,
2019, Plaintiff moved for leave to amend her complaint (ECF
51), which Defendants opposed. On March 22, 2019, Plaintiff
opposed Move's amended motion to compel arbitration. ECF
April 2, 2019, the Court granted Plaintiff's motion for
leave to amend and converted the two pending motions
pertaining to the Complaint into motions pertaining to the
First Amended Complaint (“FAC”). ECF 55. Because
Move had not yet filed its reply in support of its motion to
compel, the Court directed Move to address the FAC in its
reply and gave Plaintiff the opportunity to file a sur-reply.
Id. Because Plaintiff never opposed NAR's motion
to dismiss, the Court gave NAR the opportunity to file a
supplemental brief in support of its motion to dismiss and
declined to give Plaintiff the opportunity to respond to this
supplemental brief. Id. To resolve NAR's motion,
the Court will consider arguments Plaintiff made in her
motion for leave to amend as they relate to NAR's motion
to dismiss. See MLTA, ECF 51. On May 23, 2019, the
Court held a hearing on the motions. ECF 62.
MOTION TO DISMISS
moves to dismiss Plaintiff's claim because this Court
does not have personal jurisdiction over NAR and because
Plaintiff fails to state a claim against NAR. See
generally MTD. Because the Court agrees that it does not
have personal jurisdiction over NAR, it does not address
NAR's Rule 12(b)(6) arguments.
Rule of Civil Procedure 12(b)(2) authorizes a defendant to
seek dismissal of an action for lack of personal
jurisdiction. Fed.R.Civ.P. 12(b)(2). “Where, as here,
the defendant's motion is based on written materials
rather than an evidentiary hearing, the plaintiff need only
make a prima facie showing of jurisdictional facts to
withstand the motion to dismiss.” Ranza v. Nike,
Inc., 793 F.3d 1059, 1068 (9th Cir. 2015) (internal
quotation marks and citation omitted). Uncontroverted
allegations in the complaint are taken as true,
Schwarzenegger v. Fred Martin Motor Co., 374 F.3d
797, 800 (9th Cir. 2004), and factual disputes contained
within declarations or affidavits are resolved in the
plaintiff's favor, Boschetto v. Hansing, 539
F.3d 1011, 1015 (9th Cir. 2008).
Federal Rule of Civil Procedure 4(k)(1)(A), this Court has
personal jurisdiction if the defendant would be
“subject to the jurisdiction of a court of general
jurisdiction in the state where the district court is
located, ” i.e., California. Because
California's long-arm statute is coextensive with federal
due process requirements, the Court may exercise personal
jurisdiction so long as it comports with due process. See
Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218,
1223 (9th Cir. 2011). “[D]ue process requires that the
defendant ‘have certain minimum contacts' with the
forum state ‘such that the maintenance of the suit does
not offend “traditional notions of fair play and
substantial justice.”'” Ranza, 793
F.3d at 1068 (quoting Int'l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945)).
Court first discusses additional relevant facts and then the
parties' arguments here.
discussed, Plaintiff is a citizen and resident of Florida and
a member of NAR. FAC ¶ 8. NAR is an Illinois
corporation. FAC ¶¶ 2, 12. NAR's website shows
that its home office is in Chicago, IL. McGrath Decl., Ex. 1,
ECF 25-1. Realtor.com has its headquarters in California. FAC
¶ 14. NAR provides numerous resources, services, and
benefits for its members nationwide through Realtor.com. FAC
allegedly “transacts substantial business in, and has
maintained continuous and systematic contacts in and with,
California generally and specifically relating to marketing
its official moniker, website, REALTOR marketing hub, and
brand, ‘Realtor.com' in and from California, from
which the text messages at issue were sent.” FAC ¶
12. This business includes NAR's “strategic
partnership” with Move, starting with the 1996
perpetual marketing agreement (“1996 Agreement”)
that sets forth the relationship between the parties. FAC
¶ 22; McGrath Decl., Ex. 2
(“Agreement”). The 1996 Agreement discusses the terms
of how Move will operate Realtor.com and sets forth the
relationship of the parties:
This agreement is not intended to create, and shall not be
deemed or treated as creating, a partnership, joint venture,
employment contract or any other relationship between the
parties other than the service relationship expressly
provided for in this Agreement. All commitments, obligations,
undertakings and liabilities associated with the [operation
of Realtor.com] shall be entered in the name of, and shall be
the sole responsibility of, [Move], and neither party shall be
authorized to enter into any commitment, obligation,
undertaking or liabilities in the name of, or on behalf of,
the other party.
Agreement ¶ 3.4.
1996 Agreement also makes Move responsible for carrying out
Realtor.com's marketing program:
[Move] shall be responsible for developing and implementing a
program to identify Authorized Advertisers for the System and
to solicit advertisements from such Persons; and [Move] shall
be responsible for carrying out such program. [Move] shall be
responsible for the costs of soliciting such advertising,
setting such advertisements up on the System in compliance
with the requirements set forth in Section 5.7, and
collecting revenues associated therewith . . . . No.
Advertising shall indicate that a product or service is
endorsed or sponsored by NAR or RIN unless the advertiser has
been authorized to do so by NAR or RIN, as the case may be.
Id. ¶¶ 5.7(b) and (c).
1996 Agreement states that California law governs it and that
the venue for disputes under it shall be California.
Id. Sched H, ¶ 12; FAC ¶ 23. The 1996
Agreement also provides that NAR has ultimate authority to
approve the advertising plan; that NAR may audit the
marketing process; that Move must open its records to NAR;
that Move must prepare a business plan related to its efforts
on NAR's behalf; and other related oversight provisions.
FAC ¶ 36 (citing 1996 Agreement).
from Realtor.com, NAR has other significant ties to
California. “NAR and its constituent board and state
associations form a composite organization of brokers and
salespeople, including, as of November 2018, approximately
200, 000 NAR members in California, which is the state with
the most NAR members in the United States.” FAC ¶
17. Certain California real estate associations were founding
members of NAR many decades ago. FAC ¶ 16. NAR is
registered with the California Secretary of State; has bylaws
and a constitution adopted in California; has marketing
agreements with various California entities, including Move
and Realtor.com; sets operational standards for California
Realtor associations; regularly conducts business in
California, including through its approximately 200, 000
California members; holds regular meetings and events in
California; has had several presidents and officers who hail
from California; and maintains a regional vice president in
California. FAC ¶ 18.
argues that the Court has general personal jurisdiction over
NAR; she does not argue that the Court has specific
jurisdiction over NAR. See generally MLTA. The Court
first discusses general jurisdiction law and then analyzes
the facts here.
General Jurisdiction Law
Supreme Court has recognized two types of personal
jurisdiction: (1) general (or all-purpose) jurisdiction and
(2) specific (or case-specific) jurisdiction. See
Goodyear Dunlop Tires Operations, S.A. v. Brown, 564
U.S. 915, 927 (2011). General jurisdiction is based on
certain limited affiliations that the defendant has with the
forum state. Id. at 919. A court may exercise
general jurisdiction only when the defendant's
“affiliations with the State are so ‘continuous
and systematic' as to render [the defendant] essentially
at home in the forum State.” Daimler AG v.
Bauman, 134 S.Ct. 746, 754 (2014) (quoting
Goodyear, 564 U.S. at ...