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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

EL PASO DIVISION

BRANDON CALLIER,

 Plaintiff,

v.

SUNPATH LTD; NATIONAL CAR 

CURE LLC; NORTHCOAST 

WARRANTY SERVICES, INC.; 

JOHN DOES #1-4,

 Defendants.

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EP-20-CV-00106-FM

ORDER DENYING MOTION TO DISMISS

Before the court is “Defendant’s SunPath, Ltd. and NorthCoast Warranty Services, Inc.’s 

Motion to Dismiss Plaintiff’s Complaint” (“Motion”) [ECF No. 9], filed June 2, 2020 by 

SunPath, Ltd. (“SunPath”) and NorthCoast Warranty Services, Inc. (“Northcoast”); “Plaintiff’s 

Response to Defendants SunPath, Ltd.’s and National Care Cure’s [sic] Motion to Dismiss for 

Lack of Personal Jurisdiction” (“Response”) [ECF No. 11], filed June 23, 2020 by Brandon 

Callier (“Plaintiff”); and “Defendant’s Reply in Support of their Motion to Dismiss Plaintiff’s 

Complaint: (“Reply”) [ECF No. 12], filed June 30, 2020. After due consideration of the Motion, 

Response, Reply, and applicable law, the Motion is DENIED.

I. BACKGROUND

This action arises from a series of at least ten phone calls Plaintiff received over sixty 

days. These calls came from a variety of phone numbers and contained a pre-recorded message

selling the products and services of SunPath and National Car Cure, LLC through broker 

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Northcoast Warranty Services.1 The telemarketers used spoofed local numbers.2 The calls then 

connected Plaintiff to a telemarketer after three to four seconds of dead air, indicating the calls 

were initiated using an automatic telephonic dialing system.3 The telemarketers did not identify 

themselves or the company for which they worked.

4

Plaintiff brought this action against SunPath, Northcoast, and National Care Cure, LLC 

for violation of the Telephone Consumer Protection Act of 1991 (“TCPA”)5and Section 305 of 

the Texas Business and Commerce Code.6 Plaintiff claims these entities are vicariously liable 

for the violations as direct beneficiaries of the telemarketing calls, regardless of whether they 

initiated the calls themselves.

7

 

Plaintiff, a resident of Texas, purchased a car warranty from “Defendants.”8 SunPath is a 

Delaware corporation engaged in selling and administering extended automotive service 

agreements, with its principal offices in Braintree, Massachusetts.9 Northcoast is a Delaware 

corporation that issues those automobile service contracts to consumers, with its principal place 

1

“Plaintiff’s Original Complaint” (“Compl.”) 6 ¶¶ 25–27, ECF No. 1, filed Apr. 20, 2020.

2

Id. at 6 ¶ 29.

3

Id. at 6 ¶¶ 27–28. 

4

Id at 6 ¶ 28.

5 47 U.S.C. § 227, et seq.

6 Compl. 3–5.

7

Id. at 8 ¶ 40.

8

Id at 6 ¶ 26. See also Compl, “Contract Declarations,” ECF No. 1-1, Ex. 1.

9

“Defendant’s SunPath, Ltd. and NorthCoast Warranty Services, Inc.’s Motion to Dismiss Plaintiff’s 

Complaint” (“Mot.”) 3, ECF No. 9, filed June 2, 2020.

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of business in Ohio.10 SunPath and Northcoast move to dismiss claims against them for lack of 

personal jurisdiction and failure to state a claim upon which relief may be granted.11

II. LEGAL STANDARD

A. Personal Jurisdiction

Federal Rule of Civil Procedure 12(b)(2) requires a court to dismiss a claim if the court 

does not have personal jurisdiction over the defendant.12 A federal court may exercise 

jurisdiction over a nonresident defendant, provided state law confers such jurisdiction and its 

exercise comports with due process under the Constitution.”13 The Texas Long-Arm Statute has 

been interpreted to extend as far as is permitted by due process.14 Due process permits the 

exercise of jurisdiction only if the nonresident defendant has purposefully established “minimum 

contacts” with the forum state “such that the maintenance of the suit does not offend ‘traditional 

notions of fair play and substantial justice.’”15

The minimum contacts of a nonresident defendant with the forum state may support 

either “specific” or “general” jurisdiction.

16

 General jurisdiction exits “when defendant’s 

affiliations with the State are so ‘continuous and systematic’ as to render [it] essentially at home 

10 Id. at 3.

11 Id. at 1.

12 FED. R. CIV. P. 12(b)(2).

13 DeMelo v. Toche Marine, Inc., 711 F.2d 1260 (5th Cir.1983). Omni Capital Int'l v. Rudolf Wolff & Co., 

Ltd., 484 U.S. 97, 105–06 (1987). 

14 Jones v. Petty–Ray Geophysical Geosource, Inc., 954 F.2d 1061, 1067 (5th Cir.1992), cert. denied, 506 

U.S. 867 (1992).

15 Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 

(1940)).

16 Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011); Interfirst Bank Clifton v. 

Fernandez, 844 F.2d 279, 282 (5th Cir. 1988), opinion withdrawn in part on other grounds, 853 F.2d 292 (1988).

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in the forum State.”17 When analyzing whether a court has specific jurisdiction, the Fifth Circuit 

applies a three-part framework:

1) whether the defendant purposely directed its activities toward the forum state 

or purposefully availed itself of the privileges of conducting activities there;

2) whether the plaintiff's cause of action arises out of or results from the 

defendant's forum-related contacts; and

3) whether the exercise of personal jurisdiction is fair and reasonable.

18

The “purposeful availment requirement ensures that a defendant will not be hailed into a 

jurisdiction solely as a result of random, fortuitous, or attenuated contacts, or of the unilateral 

activity of another party or a third person.”19

It is the plaintiff’s burden to establish the court has personal jurisdiction.20 The burden is 

satisfied if the plaintiff makes out a prima facie case supporting jurisdiction.21 Allegations in the 

complaint are taken as true except to the extent they are contradicted by defendant’s affidavits.22 

Any genuine, material conflicts between the facts established by the parties’ affidavits and other 

evidence are resolved in favor of the plaintiff.23

17 Daimler AG v. Bauman, 571 U.S. 117, 127 (2014); Goodyear Dunlop Tires Operations, S.A., 564 U.S. at 

919 (quoting Int’l Shoe Co., 326 U.S. at 316).

18 Monkton Ins. Servs., Ltd. v. Ritter, 768 F.3d 429, 433 (5th Cir. 2014) (citing Seiferth v. Helicopteros

Atuneros, Inc., 472 F.3d 266, 271 (5th Cir. 2006)).

19 Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985).

20 WNS, Inc. v. Farrow, 884 F.2d 200, 202 (5th Cir. 1989).

21 Alpine View Co. v. Atlas Copco AB, 205 F.3d 208, 215 (5th Cir. 2000).

22 Wyatt v. Kaplan, 686 F.2d 276, 282-83 n.13 (5th Cir. 1982)); Black v. Acme Mkts., Inc., 564 F.2d 681, 

683 n.3 (5th Cir. 1977).

23 Jones v. Petty-Ray Geophysical Geosource, Inc., 954 F.2d 1061, 1067 (5th Cir. 1992).

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III. DISCUSSION

A. General Personal Jurisdiction

This court does not have general jurisdiction over either SunPath or Northcoast as neither 

are “at home” in Texas. Neither company is incorporated in Texas, nor is either's principal place 

of business in Texas.24 Any contacts either has with Texas cannot be said to be continuous and 

systemic to the point of rendering them at home.25 Plaintiff asserts this court has general 

personal jurisdiction,26 but fails to discuss how either SunPath or Northcoast is essentially at 

home in Texas. He therefore fails to carry his burden of establishing they are subject to this 

Court's general personal jurisdiction.

B. Specific Personal Jurisdiction

1. Direct Liability

Some district courts have determined specific jurisdiction exists where an out-of-state 

defendant purposefully avails itself of the benefits of a forum state by making marketing calls to 

phone numbers with forum area codes.27 It is unclear from the face of the complaint whether 

24 Mot. 1.

25 See Daimler AG v. Bauman, 571 U.S. 117, 127 (2014).

26 Compl. 2 ¶ 7.

27 Lowe v. CVS Pharmacy, 233 F.Supp.3d 636, 645 (N.D. Il. 2017) (holding the Illinois district court had 

personal jurisdiction over an out-of-state defendant as it placed a call to a phone number with an Illinois area code); 

Cunningham v. Florio, No. 4:17-cv-00839-ALM, 2018 WL 4473792, at *9 (E.D. Tex. Aug. 6, 2018) (holding the 

court had personal jurisdiction over an out-of-state telemarketing firm that entered into an agreement with a Texas 

firm to place calls in Texas); Casso’s Wellness Store & Gym, LLC v. Spectrum Lab. Prod., Inc., No. 17-2161, 2018 

WL 1377608, at *5–6 (E.D. La. Mar. 19, 2018) (holding the district court had personal jurisdiction over an out-ofstate defendant that directed TCPA-prohibited fax advertisements to a Louisiana fax number); Abramson v. 

Caribbean Cruise Line, Inc., No. 2:14-cv-00435, 2014 WL 2938626, at *9 (W.D. Penn. June 23, 2014) (holding the 

district court had personal jurisdiction over an out-of-state defendant as it placed a call to a phone number with a 

Pennsylvania area code).

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Plaintiff asserts either SunPath or Northcoast initiated the telemarketing calls Plaintiff received.28 

Plaintiff does provide evidence that the calls came directly from SunPath or Northcoast rather 

than from a third-party contracted to market their services. To the extent Plaintiff suggests either 

SunPath or Northcoast directly contacted him, this allegation is contradicted by sworn 

affidavits.29 Therefore, the court need not accept it as true for the purposes of determining 

whether Plaintiff has made a prima facie case.30 In sum, Plaintiff has not met his pleading 

burden to establish personal jurisdiction over Sunpath and Northcoast on the basis of their direct 

contacts with Texas.

2. Agency Liability

On the other hand, Plaintiff clearly asserts jurisdiction is established by an agency 

relationship between SunPath and Northcoast as principals and an unidentified third-party 

telemarketer as their agent.31 Courts generally “must assess each defendant's contact with the

forum state individually—a substantial connection is not formed by the ‘unilateral activity of 

another party or a third person.’”32 However, the authorized actions of an agent may be imputed 

to that agent's principal.33 The Federal Communications Commission has stated this principle 

28 See generally Compl. Plaintiff refers several times to “Defendants and/or their affiliates or Agents,” but 

asserts only vicarious, rather than direct, liability and does not directly state who he believes is responsible for the 

marketing calls.

29 See Mot., “Declaration of Barry W. Moses in Support of Defendants’ Motion to Dismiss” (“Decl. of 

Barry W. Moses”) 2 ¶ 6, ECF No. 9-1; Mot., “Declaration of Andrew Garcia in Support of Defendants’ Motion to 

Dismiss” (“Decl. of Andrew Garcia”) 2 ¶ 5, ECF No. 9-2.

30 See Wyatt v. Kaplan, 686 F.2d 276, 282–83 n.13 (5th Cir. 1982)); Black v. Acme Mkts., Inc., 564 F.2d 

681, 683 n.3 (5th Cir. 1977).

31 See Compl. 8 ¶¶ 39–41.

32 Halliburton Energy Servs., Inc. v. Ironshore Specialty Ins. Co., 921 F.3d 522, 543 (2019) (quoting 

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985).

33 In re Chinese-Manufactured Drywall Prod. Liab. Litig., 753 F.3d 521, 534 (5th Cir. 2014); McFadin v. 

Gerber, 587 F.3d 753, 761 (5th Cir. 2009).

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applies to TCPA actions against businesses that contract telemarketers.

34

 A seller “may be held 

vicariously liable under federal common law principles of agency for violations of either section 

227(b) or section 227(c) that are committed by third-party telemarketers.”35 It reasoned that this 

understanding of the statute best implements Congress’ purpose behind the rules—to protect 

privacy rights.36 

To prove the existence of an agency relationship, the principal must have “both the right: 

(1) to assign the agent's task; and (2) to control the means and details of the process by which the 

agent will accomplish that task.”37 Alternately, apparent authority holds a principal accountable 

for the results of third-party beliefs about an actor's authority to act as an agent when the belief is 

traceable to a manifestation of the principal.38 Finally, a principal may be liable on the theory of 

ratification if it retains the benefits of a transaction after acquiring full knowledge of the 

underlying circumstances.39

Plaintiff has not made out a prima facia case that such an agency relationship exists to 

support personal jurisdiction. He makes the conclusory assertion that SunPath and Northcoast 

are vicariously liable “as the direct beneficiaries of the illegal telemarketing calls.”40 However, 

he does not state the nature of the relationship these entities have with the unidentified 

34 See In re Dish Network, LLC, 28 F.C.C. Rcd. 6574, 6574 (2013).

35 Id.

36 Id. at 6585.

37 Indian Harbor Ins. Co. v. Valley Forge Ins. Grp., 535 F.3d 359, 364 (5th Cir. 2008) (citing Happy Indus. 

Corp. v. Am. Specialties, Inc., 983 S.W.2d 844, 852 (Tex. App.—Corpus Christi 1998, pet. dism'd w.o.j.)). See also 

Comty Health Sys. Prof'l Servs. v. Hansen, 525 S.W.3d 671, 697 (Tex. 2017) (defining actual authority).

38 Cactus Pipe & Supply Co. v. M/V Montmartre, 756 F.2d 1103, 1111 (5th Cir. 1985); NationsBank, N.A. 

v. Dilling, 922 S.W.2d 950, 952–53 (Tex. 1996) (per curiam).

39 Land Title Co. v. F.M. Stigler, Inc., 609 S.W.2d 754, 756–57 (Tex. 1980).

40 Compl. 8 ¶ 40.

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telemarketing firm soliciting business on their behalf. The affidavits provided by SunPath and 

Northcoast state neither entity maintains control or oversight over third-party marketing firms.

41

 

Nor do SunPath or Northcoast select who third-party marketing firms market to or the manner in 

which those marketing firms conduct their operations.

42

 Plaintiff offers no factual support in 

contradiction to create the genuine, material conflict needed to resolve the dispute in his favor.

43

 

Contrary to Plaintiff’s assertion,44 this court cannot reasonably infer an agency 

relationship from the mere fact that telemarketing calls were made on behalf of SunPath and 

Northcoast. In order for an agency relationship to exist, SunPath and Northcoast must have had 

the authority to assign tasks and control the means and details of the process by which the thirdparty telemarketer responsible for calling Plaintiff in Texas conducts its business.45 If this 

control does not exist, the calls are merely unilateral activities of a third party, which may not 

provide the basis for personal jurisdiction.

46

 They do not reflect that SunPath and Northcoast 

purposefully availed themselves of the of the privileges of conducting business in Texas by 

directing marketing efforts there.

47

 

Plaintiff also cannot establish a telemarketer acted with apparent authority. While it may 

be reasonable to believe a telemarketer soliciting business on behalf of an entity is acting as an 

41 Decl. of Barry W. Moses 2 ¶¶ 7–10; Decl. of Andrew Garcia 2 ¶¶ 6–10.

42 Decl. of Barry W. Moses 2 ¶ 8; Decl. of Andrew Garcia 2 ¶ 7.

43 See Wyatt v. Kaplan, 686 F.2d 276, 282–83 n.13 (5th Cir. 1982)); Black v. Acme Mkts., Inc., 564 F.2d 

681, 683 n.3 (5th Cir. 1977).

44 Resp. 10.

45 See Indian Harbor Ins. Co. v. Valley Forge Ins. Grp., 535 F.3d 359, 364 (5th Cir. 2008).

46 See Halliburton Energy Servs., Inc. v. Ironshore Specialty Ins. Co., 921 F.3d 522, 543 (2019).

47 See Monkton Ins. Servs., Ltd. v. Ritter, 768 F.3d 429, 433 (5th Cir. 2014). See also Moncrief Oil Int'l Inc. 

v. OAO Gazprom, 481 F.3d 309, 313 (5th Cir. 2007) (finding no specific personal jurisdiction in part because the 

contract was silent as to the location of performance, so the forum state was not the hub of the contract's activity).

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agent, the belief must be traceable to the conduct of the principal—in this case, SunPath or 

Northcoast.48 Plaintiff has not pleaded facts establishing either SunPath or Northcoast acted to 

create the appearance of an agency relationship. Ratification is inapplicable for the same reason. 

Although Sunpath and Northcoast undoubtedly benefited from the marketing calls, nothing in the 

pleadings indicates either were aware of the actions allegedly in violation of the TCPA. Such 

knowledge is necessary to meet the standard for ratification, which requires full knowledge of 

the underlying circumstances.49 In sum, Plaintiff has not met his pleading burden to establish 

personal jurisdiction over Sunpath and Northcoast on the basis of agency.

C. Jurisdictional Discovery

The court has discretion to permit a party to conduct jurisdictional discovery to resolve 

issues of fact raised by a motion to dismiss for lack of personal jurisdiction.50 To support a 

request for jurisdictional discovery, a plaintiff must first make “a preliminary showing of 

jurisdiction.”51 A preliminary showing requires “factual allegations that suggest with reasonable 

particularity the possible existence of the requisite contacts.”52 “When the lack of personal 

jurisdiction is clear, discovery would serve no purpose and should not be permitted.”53

It is clear general personal jurisdiction over SunPath and Northcoast does not exist and 

cannot be established. However, the court is sensitive to Plaintiff’s limited ability to discern the 

48 See Cactus Pipe & Supply Co. v. M/V Montmartre, 756 F.2d 1103, 1111 (5th Cir. 1985); NationsBank, 

N.A. v. Dilling, 922 S.W.2d 950, 952–53 (Tex. 1996) (per curiam).

49 See Land Title Co. v. F.M. Stigler, Inc., 609 S.W.2d 754, 756–57 (Tex. 1980).

50 Wyatt v. Kaplan, 686 F.2d 276, 283 (5th Cir. 1982).

51 Fielding v. Hubert Burda Media, Inc., 415 F.3d 419, 429 (5th Cir. 2005).

52 Id.

53 Wyatt, 686 F.2d at 284.

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identity of the telemarketing firm responsible for contacting him and the nature of its relationship 

with SunPath and Northcoast without discovery. The pleadings make clear: (1) SunPath and 

Northcoast are the beneficiaries of the marketing calls Plaintiff received, even if neither placed 

the calls directly;

54 and (2) the telemarketer alleged to have violated the TCPA had the authority 

to sell Plaintiff a car warranty on their behalf.

55

 While Plaintiff does not meet the pleading 

burden to establish personal jurisdiction, these allegations “suggest with reasonable particularity 

the possible existence of the requisite contacts.”56 Specifically, the existence of contracts 

between SunPath, Northcoast, and a telemarketing firm would resolve the question of fact as to 

their relationship. As such, limited jurisdictional discovery for the purpose of investigating 

whether this court has specific jurisdiction will be permitted.

D. Leave to Amend

Under Federal Rule of Civil Procedure 15, “a party may amend its pleading only with the 

opposing party’s written consent or the court’s leave.” The court should “freely give leave when

justice so requires.”

57

 In determining whether leave to amend should be granted, the court can 

consider factors such as: (1) undue delay; (2) bad faith or dilatory motive on the part of the 

movant; (3) repeated failure to cure deficiencies by amendments previously allowed; (4) undue 

54 Compl. 8 ¶ 40.

55 Id at 6 ¶ 26. See also Compl, “Contract Declarations,” ECF No. 1-1, Ex. 1.

56 See Fielding, 415 F.3d at 429.

57 FED. R. CIV. P. 15(a)(2).

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prejudice to the opposing party; and (5) futility of amendment.58 A court must have “substantial 

reason” to deny a request for leave to amend.59

Plaintiff will be permitted to amend his complaint in order to incorporate the limited 

jurisdictional discovery ordered by the court. Amendment following jurisdictional discovery 

would be a good faith attempt to strengthen pleadings in light of new information. As this will 

be Plaintiff’s first amended complaint, there has not yet been repeated failure to cure deficiencies 

to overcome the liberal policy in favor of amendment. Amendment will not cause undue delay 

or undue prejudice given the early phase of proceedings. 

IV. CONCLUSION

Plaintiff has not met his pleading burden to establish this court has personal jurisdiction 

over Defendants Sunpath Ltd. and Northcoast Warranty Services, Inc. However, the court will 

permit jurisdictional discovery and subsequent amendment of the complaint. As it remains 

uncertain at this point whether the court has personal jurisdiction, it does not reach the issue of 

whether Plaintiff stated a claim for which relief may be granted. Accordingly, the court enters 

the following orders:

1. It is HEREBY ORDERED that “Defendant’s SunPath, Ltd. and NorthCoast 

Warranty Services, Inc.’s Motion to Dismiss Plaintiff’s Complaint” [ECF No. 9] 

is DENIED.

2. It is FURTHER ORDERED that Defendants SunPath, Ltd. and NorthCoast 

Warranty Services, Inc. PRODUCE to Plaintiff Brandon Callier contracts or 

agreements either has with companies authorized to market their products or 

services or to initiate outbound sales calls to consumers on their behalf during the 

period Plaintiff alleges he received sales calls. Alternatively, Defendants

SunPath, Ltd. and NorthCoast Warranty Services, Inc. must PRODUCE any 

documents describing either of their relationships with telemarketers or resale 

58 Ashe v. Corley, 992 F.2d 540, 542 (5th Cir. 1993) (citing Forman v. Davis, 371 U.S. 178, 182 (1962)). 

59 Lyn-Lea Travel Corp. v. Am. Airlines, 283 F.3d 282, 286 (5th Cir. 2002) (quoting Jamieson v. Shaw, 772 

F.2d 1205, 1208 (5th Cir. 1985)).

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companies and the process by which such an entity may connect a customer to 

either SunPath, Ltd. or NorthCoast Warranty Services, Inc.

3. It is FURTHER ORDERED that Defendants SunPath, Ltd. and NorthCoast 

Warranty Services, Inc. SHALL file a discovery status report within 45 days of 

the date of this order.

4. It is FURTHER ORDERED that Plaintiff SHALL file an amended complaint, if 

any, within 45 days of receipt of jurisdictional discovery materials.

SIGNED AND ENTERED this 10th day of August, 2020.

____________________________________

 FRANK MONTALVO

UNITED STATES DISTRICT JUDGE

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