Progressive Health & Rehab Corp. v. Strategy Anesthesia, LLC, Case No. 2:16–cv–1151

• Decision Date: 25 September 2017
• Docket Number: Case No. 2:16–cv–1151
• Citation: 271 F.Supp.3d 941
• Parties: PROGRESSIVE HEALTH AND REHAB CORP., individually and as the representative of a class of similarly-situated persons, Plaintiff, v. STRATEGY ANESTHESIA, LLC, and John Does 1–5, Defendants.
• Court: U.S. District Court — Southern District of Ohio

271 F.Supp.3d 941

PROGRESSIVE HEALTH AND REHAB CORP., individually and as the representative of a class of similarly-situated persons, Plaintiff,

v.STRATEGY ANESTHESIA, LLC, and John Does 1–5, Defendants.

Case No. 2:16–cv–1151

United States District Court, S.D. Ohio, Eastern Division.

Signed September 25, 2017

Robert E. DeRose, II, Molly Kathleen Tefend, Barkan Meizlish Handelman Goodin Derose Wentz, LLP, Columbus, OH, Brian J. Wanca, Pro Hac Vice, Ryan M. Kelly, Pro Hac Vice, Rolling Meadows, IL, for Plaintiff.

Aaron Todd Brogdon, E. Kelly Mihocik, Squire Patton Boggs (U.S.) LLP, Columbus, OH, Destyn D. Stallings, Richard P. Hix, Pro Hac Vice, Doerner, Saunders, Daniel & Anderson, LLP, Tulsa, OK, for Defendants.

OPINION AND ORDER

EDMUND A. SARGUS, JR., CHIEF UNITED STATES DISTRICT JUDGE

This matter is before the Court for consideration on Defendant's Motion to Dismiss [the Amended Complaint] for Lack of Standing, or Alternatively, to Strike Class Allegations. (ECF No. 23.) Also before the Court are Defendant's Motion to Dismiss the original complaint (ECF No. 14) and Plaintiff's First Amended "Placeholder" Motion for Class Certification (ECF No. 19). For the following reasons, Defendants' Motion to Dismiss (ECF No. 23) is DENIED, Defendant's Motion to Dismiss (ECF No. 14) is MOOT, and Plaintiff's placeholder Motion for Class Certification (ECF No. 19) is DENIED without prejudice.

I. BACKGROUND

This lawsuit arises out of allegedly unsolicited faxes sent by Defendants, Strategy Anesthesia, LLC and John Does 1–5 ("Strategy" or collectively "Defendants"), to Plaintiff Progressive Health and Rehab Corp. ("Progressive"). Progressive alleges Defendants violated the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, as amended by the Junk Fax Prevention Act of 2005 ("JFPA"), when Defendants sent advertising faxes without sufficient opt-out notices and without prior express invitation or permission by the recipients. Plaintiff seeks statutory liquidated damages for each TCPA violation as well as injunctive relief.

Plaintiff alleges that on both June 10, 2015 and August 12, 2015 it received an unsolicited one-page facsimile advertising the Defendant's anesthesia services. (Amended Complaint ("Am. Compl.") ¶ 11, ECF No. 18.) While the two faxes did allow Plaintiff to contact Defendant to no longer receive such advertisements, Plaintiff alleges that the faxes did not contain the particular opt-out language required by the JFPA. (Id. ¶ 27; 47 U.S.C. § 227(b)(1)(C)(iii).) Plaintiff attaches a copy of each fax message as Exhibit A to the Amended Complaint. (Ex. A, ECF No. 18–1.) Plaintiff further alleges that Defendants faxed the same and other unsolicited facsimiles without the required opt-out language to at least forty other recipients. (Am. Compl. ¶ 14.) As a result of the unsolicited faxes, Plaintiff alleges it suffered loss of the use of its fax machine, paper, and in toner. (Id. ¶ 3.) Unsolicited faxes also waste a recipient's valuable time, causes undue wear and tear on the recipient's fax machine, and interrupts the recipient's privacy, according to the Plaintiff. (Id. )

Plaintiff initiated this class action on December 7, 2016, and on February 7, 2017 Defendant filed its first Motion to Dismiss the Complaint for lack of standing (ECF No. 14). On February 27, 2017, Plaintiff filed the Amended Complaint as well as a First Amended "Placeholder" Motion for Class Certification. (Placeholder Motion for Class Certification ("Mot. for Class Cert."), ECF No. 19). Plaintiff seeks to bring this action on behalf of the following class of persons:

All persons who (1) from October 24, 2014 to present, (2) were sent telephone facsimile messages of material advertising the commercial availability or quality of any property, goods, or services by or on behalf of Defendants, (3) from whom Defendants did not obtain "prior express invitation or permission" to send fax advertisements, and (4) with whom Defendants did not have an established business relationship, and/or (5) which did not display a proper opt-out notice.

(Am. Compl. ¶ 17.)

On March 20, 2017, Defendant filed a renewed Motion to Dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), asserting that Plaintiff lacks standing because it has not alleged a concrete injury-in-fact. (Defendant's Motion to Dismiss ("Mot. to Dismiss"), ECF No. 23.) Plaintiff has filed a Memorandum in Opposition to Defendant's motion (ECF No. 26), and Defendant has filed a Reply in Support (ECF No. 35). These matters are now ripe for review.

II. STANDING

Defendant seeks dismissal of Plaintiff's Amended Complaint (ECF No. 18) pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) on the grounds that Plaintiff lacks standing because it has failed to articulate more than a de minimis injury-in-fact.

A. Standard

Federal Rule of Civil Procedure 12(b)(1) governs dismissal for lack of subject matter jurisdiction. Generally, Rule 12(b)(1) motions fall into two general categories: facial attacks and factual attacks. Gentek Bldg. Prods., Inc. v. Sherwin–Williams Co., 491 F.3d 320, 330 (6th Cir. 2007). A facial attack is a challenge to the sufficiency of the pleading itself. On such a motion, the court must take the material allegations of the petition as true and construed in the light most favorable to the nonmoving party. See Scheuer v. Rhodes , 416 U.S. 232, 235–37, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). In contrast, a factual attack is not a challenge to the sufficiency of the pleading's allegations, but a challenge to the factual existence of subject matter jurisdiction. On such a motion, no presumptive truthfulness applies to the factual allegations, see Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990), and the court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. See United States v. Ritchie , 15 F.3d 592, 598 (6th Cir. 1994).

Defendant also challenges the sufficiency of Plaintiff's pleading with respect to standing under Rule 12(b)(6). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 677, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Id. at 679, 129 S.Ct. 1937.

Standing is "the threshold question in every federal case," and if the plaintiff lacks standing, the federal court lacks jurisdiction. Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). "In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues." Id. Standing under Article III has three elements. "First, the plaintiff must have suffered an ‘injury in fact’—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." Lujan v. Defs. of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Second, the injury must be "fairly traceable to the challenged action of the defendant." Id. Third, it must be likely that the injury will be "redressed by a favorable decision." Id. at 561, 112 S.Ct. 2130. The burden is on the party invoking federal jurisdiction to demonstrate Article III standing. Stalley v. Methodist Healthcare , 517 F.3d 911, 916 (6th Cir. 2008). At the pleading stage, the plaintiff must " ‘clearly ... allege facts demonstrating’ each element" required to establish standing. Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016).

Defendant here challenges Plaintiff's standing on the first element of standing requiring an injury in fact. For an injury to be cognizable under current standing doctrine, it must be particularized meaning it "affect[s] the plaintiff in a personal and individual way." Spokeo, Inc. v. Robins, ––– U.S. ––––, 136 S.Ct. 1540, 1548, 194 L.Ed.2d 635 (2016). Additionally, the injury must be concrete, meaning it must actually exist and must be real and not abstract. Id. at 1548 (quoting Webster's Third New Int'l Dictionary 472 (1971); Random House Dictionary of the English Language 305 (1967)). However, the injury need not necessarily be tangible. Id. at 1549 (citing Pleasant Grove City v. Summum , 555 U.S. 460, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009) (free speech); Church of Lukumi Babalu Aye, Inc. v. Hialeah , 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993) (free exercise)). Congress may "elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law." Spokeo, 136 S.Ct. at 1549 (quoting Lujan, 504 U.S. at 578, 112 S.Ct. 2130 ). However, this "does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right." Id. Specifically, a plaintiff cannot "allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III." Id. at 1549.

B. Discussion

Applying these standards and viewing the facts alleged in Plaintiff's Complaint as true, the Court concludes that Plaintiff has established the material elements of standing.

The TCPA/JFPA "prohibits the use of ‘any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement,’ unless the sender and...