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Fitzhenry v. Ushealth Group Inc.

United States District Court, D. South Carolina, Charleston Division

January 27, 2016

MARK FITZHENRY, individually and on behalf of a class of all persons and entities similarly situated, Plaintiff,



This matter is before the court on defendant USHEALTH Group, Inc.’s (“UHG”) motion to dismiss for lack of personal jurisdiction and motion for protective order. For the reasons set forth below, the court denies UHG’s motion without prejudice, and allows limited jurisdictional discovery. The court further grants in part and denies in part UHG’s motion for a protective order.


Plaintiff Mark Fitzhenry (“Fitzhenry”) is a resident of South Carolina. Compl. ¶ 12. Defendant UHG is a Delaware corporation with a principal place of business in Fort Worth, Texas. Compl. ¶ 13; Kober Aff. ¶ 3. Defendant USHEALTH Advisors, LLC (“Advisors”) is a Texas limited liability company with its principal place of business in Grapevine, Texas. Advisors’ Ans. ¶ 14. Fitzhenry alleges that on July 16, 2014, he received a telemarketing call on his cell phone. Compl. ¶ 14. Fitzhenry alleges that when he answered the phone, there was no one on the other line, but that he heard an audible click and further delay. Id. ¶ 15. At that time, Fitzhenry alleges that he hears a pre-recorded message that stated:

Hello. This message is for anyone interested in affordable health insurance coverage. If you are self-employed or one of the millions of people whose employer does not contribute to their health insurance coverage, press 1 now to speak with a live representative and get a free quote about affordable health insurance coverage where you choose your own doctors and hospitals. You can also choose to be deleted from this call list by pressing 9.

Id. Fitzhenry claims that he eventually spoke with an individual by the name of “Sarah” who asked him a few preliminary questions, including where he resided. Id. ¶ 4. The call was then transferred to “South Carolina state agent” Carlos Torres (“Torres”), a registered agent of co-defendant Advisors.[1] Id. ¶ 6-7.

Fitzhenry contends that Torres is registered with the South Carolina Department of Insurance to offer Freedom Life Insurance Company Products and that his registered email address is Id. ¶¶ 8, 11. Fitzhenry further alleges that UHG is the brand name for products underwritten and issued by Freedom Life Insurance Company. Id. ¶ 9. According to the complaint, during the call, Torres stated that he works for co-defendant Advisors. Id. ¶ 10. After the call was disconnected, Torres allegedly called Fitzhenry again and asked him some further questions “before attempting to have him purchase the ‘PPO Insurance Plan’ provided by” UHG. Id. ¶ 13.

Torres also directed Fitzhenry to a website, set up through Advisors. Id. ¶ 14. Fitzhenry alleges that after the call, Torres sent him an email about the offer that included “a number of indications of the telemarketing relationship between” Advisors and UHG, including the phrase “Welcome to U.S. Health Group” in the subject line and the following statement: “We’re very proud to work with U.S. Health Group.” Id. ¶¶ 15-17. Fitzhenry alleges that the email also included “a number of marketing material attachments from USHEALTH Group.” Id. ¶ 18.

On August 4, 2015, Fitzhenry filed the present class action against UHG and Advisors, bringing the following two causes of action: (1) violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq.; and (2) knowing and/or willful violations of the TCPA. Fitzhenry seeks injunctive relief prohibiting such alleged violations of the TCPA, treble damages as provided by statute of up to $1, 500 for each call that violated the TCPA, statutory damages of $500 for every call that violated the TCPA, and attorneys’ fees and costs. UHG filed the present motion to dismiss on November 2, 2015. Fitzhenry filed a response on November 12, 2015, and UHG replied on November 23, 2015. The motion has been fully briefed and is now ripe for the court’s review.


A. Motion to Dismiss

When personal jurisdiction is challenged by the defendant, the plaintiff has the burden of showing that jurisdiction exists. See In re Celotex Corp., 124 F.3d 619, 628 (4th Cir. 1997). When the court decides a personal jurisdiction challenge without an evidentiary hearing, plaintiffs must prove a prima facie case of personal jurisdiction. See Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 60 (4th Cir. 1993). To determine whether a plaintiff has satisfied this burden, the court may consider both the defendant’s and the plaintiff’s “pleadings, affidavits, and other supporting documents presented to the court” and must construe them “in the light most favorable to plaintiff, drawing all inferences and resolving all factual disputes in its favor, ” and “assuming [plaintiff’s] credibility.” Masselli & Lane, PC v. Miller & Schuh, PA, 215 F.3d 1320, 2000 WL 691100, at *1 (4th Cir. 2000) (table); Mylan Labs, 2 F.3d at 62; Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989)). The court, however, need not “credit conclusory allegations or draw farfetched inferences.” Masselli, 2000 WL 691100, at *1 (quoting Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201, 203 (1st Cir. 1994)).

B. Motion for Protective Order

The Federal Rules of Civil Procedure provide that a party may “obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense, including the existence, description, nature, custody, condition and location of any books, documents or other tangible things and the identity and location of persons who know of any discoverable matters.” Fed.R.Civ.P. 26(b)(1). “Relevant information need not be ...

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