UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS No. 6:22-cv-00121 Ferrell Johnson, Plaintiff, V. Palmer Administrative Servs., Inc. et al., Defendants.

ORDER Plaintiff Ferrell Johnson, individually, and on behalf of named class, initiated this action on April 4, 2022 (Doc. 1), and filed his amended complaint on May 16, 2022 (Doc. 5) alleging various vio- lations of the Telephone Consumer Protection Act (“TCPA”), TCPA regulations, and related violations of the Texas Business and Commerce Code against Palmer Vehicle Services, Inc., Vehicle Ser- vices, and another John Doe defendant. The case was referred to United States Magistrate Judge K. Nicole Mitchell pursuant to 28 US.C. § 636. On October 20, 2022, the magistrate judge issued a report rec- ommending that defendant Palmer’s motion to dismiss be granted in-part and denied in-part. Doc. 17. Defendant timely filed written objections. Doc. 18. The court reviews the objected-to portions of a magistrate judge’s report and recommendation de novo. See Fed. R. Civ. P. 72(b)(3);

(b)(1). Discussion Defendant appears to raise three general objections. Each is ad- dressed in turn. First, defendant asserts the magistrate judge’s report has applied the wrong standard in determining personal jurisdiction. Doc. 18 at 2, 3. Defendant states that, “in the context of a 12(b)(2) motion, the court is required to rely on the evidence offered by the parties

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regarding jurisdiction—it cannot rely only on the unsubstantiated al- legations in the Complaint when, as here, defendant proffers admis- sible evidence contradicting those bare allegations in the complaint.”

However, when a court rules on a motion to dismiss for lack of personal jurisdiction, the nonmovant need only make a prima facie showing, and the court must accept as true the nonmovant’s allega- tions and resolve all factual disputes in its favor. Guidry v. U.S. To- bacco Co., Inc.,

(5th Cir. 1999) (citing Latshaw v. Johnson,

(5th Cir. 1999)). Absent a full and fair ev- identiary hearing on the matter, the court should not act as a fact- finder and should construe all disputed allegations in plaintiff’s fa- vor. Latshaw,

. Further, the report’s finding that the court could properly exercise personal jurisdiction over defendant is based on the determination that plaintiff plausibly alleged the exist- ence of an agency relationship. Doc. 17 at 8-12. Defendant conflates the 12(b)(2) analysis with the analysis of whether plaintiff has plau- sibly pleaded a factual basis indicating an agency relationship, be- tween which the report clearly distinguishes. See id. at 8-14. For the same reasons, defendant’s contention that the report’s interpreta- tion of Horton v. Palmer Administrative Services is in error, due to Hor- ton containing no personal jurisdiction analysis, is without merit. See Doc. 18 at 4-5; Horton v. Palmer Administrative Services, Inc., No. 2:2020-cv-03526-X-BN,

(N.D. Tex. June 8, 2021). For these reasons, this objection is overruled. Second, defendant objects to the report’s finding that plaintiff adequately pleaded the existence of an agency relationship, and that Palmer may be vicariously liable for the acts of an alleged agent. Doc. 18 at 3-5. Defendant specifically objects to the finding that “Defend- ant Palmer sells extended vehicle service contracts.” Doc. 18 at 3. Although defendant acknowledges that the magistrate judge’s report also details its own sworn declaration testimony, Palmer asserts that the finding that it “sells” vehicle service contacts to be false and un- duly prejudicial within the report’s agency analysis.

. How- ever, as defendant noted, the report quotes defendant’s sworn dec- laration testimony that “Palmer does not market or sell the contracts it administers,” and that Palmer’s affiliates are “contractually authorized the right to enter into commercial arrangements under which the third-parties are authorized to sell Palmer-administered contracts.” Certainly, Palmer is not suggesting that third parties sell Palmer-administered service contracts of their own volition. Thus, defendant’s objection to the finding that it is engaged in “selling” vehicle service contracts is overruled. As to defendant’s second objection, more broadly, the question of whether an agency relationship exists is generally a question of fact. Callier v. National United Group, LLC, No. EP-21-CV-71-DB,

, at *5 (W.D. Tex. Nov. 17, 2021) (citing Stripling v. Jordan Production Co., LLC,

(5th Cir. 2000)). The magistrate judge’s report correctly determined that in the con- text of a pre-discovery motion to dismiss, plaintiff has pleaded suffi- cient facts to indicate the existence of an agency relationship, whether considered in the context of Federal Rule of Civil Procedure 12(b)(2) or 12(b)(6). See Doc. 17 at 8-12. Third, defendant argues that the report erred in recommending plaintiff’s claims pursuant to the Texas Business and Commerce Code not be dismissed given the plain language of the statute. Doc. 18 at 7-8. Defendant states that “unlike TCPA claims, for which the FCC has established vicarious liability, the much narrower statutory language of the TBCC does not permit such relief.” Id. at 8. The court disagrees. When a plaintiff has plausibly pleaded a claim under

(b) of the TCPA, the plaintiff has also pleaded a claim under the Texas counterpart, section 305.053 of the Texas Business and Commerce Code. Starling v. J Whales Home Solutions LLC, No. 4:21-cv-01261-O,

, at *4 (N.D. Tex. Apr. 19, 2022). Further, in In re DISH Network, LLC, adopting the FCC’s ruling, the Supreme Court simply relied upon federal common-law princi- ples of agency, which accord with the Restatement (Third) of Agency (quotations and citations omitted). See In re DISH Network, LLC,

, 6584 (2013); see also Cunningham v. Politi, No. 4:18-CV-00362-ALM-CAN,

, at *5 n.11 (E.D. Tex. Apr. 30, 2019). Defendant further disagrees with the report’s finding that plain- tiff’s statement alleging plaintiff suffered “annoyance, intrusion on privacy, and wasted time” constituted a plausible showing for actual damages. Doc. 18 at 8. Defendant states that, “[t]o show actual dam- ages, a complaint must contain more than ‘only a conclusory state- ment.’” Jd. (quoting Duplechaine v. Phh Mortg. Corp., No. 3:19-cv- 00340,

, at *5 (S.D. Tex. Sep. 23, 2021)). However, plaintiffs response indeed includes plausible fac- tual allegations as to the dates and times the alleged phone calls were received, the phone numbers associated with the calls, and a descrip- tion of the alleged prerecorded voice message, and the process plain- tiff followed in purchasing the Palmer vehicle service, indicating at base, lost time to the plaintiff. Doc. 10 at 2; see Duplechaine,

, at *5-6 (stating that the complaint must include facts giving rise to a reasonable inference that the plaintiff suffered actual damages from the alleged violation of the statute) (quotations omitted). These factual allegations certainly allow for the reasonable inference that the calls wasted plaintiff’s time and caused annoyance. Accordingly, this objection is overruled. Having reviewed the magistrate judge’s report de novo, and hav- ing found no error, defendant’s objections are overruled, and the re- port and recommendation of the magistrate judge (Doc. 17) is ac- cepted. See Fed. R. Civ. P. 72(b)(3). Defendant’s motion to dismiss is granted in-part with respect to plaintiff’s second, third, and fourth claims alleging violations of 47 C.FR. §§ 64.1200(d)(1), 64.1200(d)(2), and 64.1200 (d)(4), respectively, and denied as to all other grounds.

So ordered by the court on November 14, 2022. (bok, —f MPBELL BARKER United States District Judge

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