In a putative class action bringing claims under the Telephone Consumer Protection Act (“TCPA”), a judge of the Southern District of Indiana recently rejected the personal jurisdiction challenge of a company whose only relevant contacts in the forum were sending text messages to forum residents marketing its properties in another state.

The plaintiff, an Ohio college student from Indiana, alleges that the defendants Grand Campus Living, Inc. (“Grand Campus”) and Aspen Heights Management Company, LLC (“Aspen Heights”) caused her—through a third-party—to receive several text messages promoting rental properties managed by Grand Campus. Both defendants moved to dismiss for lack of personal jurisdiction.

The crux of this issue was whether two text messages to a telephone number associated with the forum—only one of which was received in the forum—constituted sufficient purposeful availment of the forum. Grand Campus manages properties throughout the country but not Indiana. Both Grand Campus and Aspen Heights are incorporated and headquartered in Texas; neither has offices or employees in Indiana. The plaintiff’s telephone number was registered in Indiana and contains an Indiana area code. The plaintiff received one message while at college in Ohio and one while in Indiana—both marketing an Ohio property managed by Grand Campus.

The court granted Aspen Heights’ motion based on uncontroverted evidence that it neither had any involvement with the messages nor exercised any control of Grand Campus, who did. As to Grand Campus, however, the court retained jurisdiction. The court concluded that Grand Campus’ acts of messaging an Indiana telephone number reflected intent to market the Ohio property to out-of-state and prospective college students, including the plaintiff. Although the court acknowledged that “a text message would be a thin reed to lean on for personal jurisdiction in a typical breach-of-contract matter,” it emphasized that these messages are the subject of the action itself. That is, in a TCPA suit, a text message constitutes purposeful availment “where the text messages are themselves the gravamen of the complaint.” Because the alleged injury—receiving TCPA-violating messages—arose from Grand Campus’ forum-related activities of sending the messages to Indiana-registered telephone numbers, the court retained specific personal jurisdiction. The decision reinforces that even a small number of messages or calls may support personal jurisdiction where they form the basis of the TCPA claims, even if the defendant’s activities in general are not particularly associated with the forum.

The decision is Weiss v. Grand Campus Living, Inc., No. 1:18-cv-00434 (S.D. Ind. Mar. 14, 2019), Dkt. No. 50.