(In dismissing Club Texting on jurisdictional grounds, the court did not consider or reach a decision on Club Texting’s failure to state a claim and primary jurisdiction arguments.) Zoom Tan remains in the action. Despite Plaintiff’s allegations that Club Texting sent thousands of unsolicited marketing text messages to Florida consumers on behalf of Zoom Tan, the court was swayed by Club Texting’s arguments and dismissed it from the action. In response, Club Texting submitted a sworn affidavit attesting to the fact that it did not intentionally conduct business in Florida and, among other things, did not control the content, timing or direction of the text messages that its customers, like codefendant Zoom Tan, send.
Plaintiff further alleged that Club Texting sent unsolicited spam text messages en masse, earned substantial revenue for same, and engaged in a text message marketing scheme throughout Florida. Plaintiff alleged that Club Texting submitted to the Florida court’s jurisdiction by engaging in “substantial and non-isolated activity by soliciting and engaging in business” in Florida. According to the complaint, this marketing and promotion occurred through the unauthorized transmission of advertisements in the form of text messages sent to the cellular telephones of consumers throughout the country. It was engaged by codefendant Zoom Tan to market and promote the sale of Zoom Tan’s tanning services. The Court’s TCPA AnalysisĬlub Texting is a New York corporation with its principal place of business in New Jersey. Club Texting moved to dismiss the complaint for lack of jurisdiction, failure to state a claim, and primary jurisdiction (for referral to the Federal Communications Commission (“FCC”)). (“Club Texting”), had been sued in the Middle District of Florida for sending the plaintiff, Shaina A. Zoom Tan, Inc., Zoom Tan, LLC, Zoom Tan Franchising, LLC (collectively, “Zoom Tan”) and Club Texting, Inc. On August 2, 2012, General Electric Capital Corporation (“GE”) was sued in California Federal Court for allegedly violating the Telephone Consumer Protection Act (“TCPA”). In a victory for alleged text message spammers, on August 5, 2013, a Florida Federal Court dismissed a TCPA class action complaint against a marketing company on jurisdictional grounds.
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