Asher & Simons, P.A. v. J2 Global Canada, Inc.

• Decision Date: 16 October 2013
• Docket Number: Civil No. JKB–13–0981.
• Citation: 977 F.Supp.2d 544
• Court: U.S. District Court — District of Maryland
• Parties: ASHER & SIMONS, P.A., et al., Plaintiffs v. j2 GLOBAL CANADA, INC., et al., Defendants.

977 F.Supp.2d 544

ASHER & SIMONS, P.A., et al., Plaintiffs
v.
j2 GLOBAL CANADA, INC., et al., Defendants.

Civil No. JKB–13–0981.

United States District Court,
D. Maryland.

Oct. 16, 2013.

[977 F.Supp.2d 546]

Michael Craig Worsham, Law Office of Michael Craig Worsham, Forest Hill, MD, for Plaintiffs.

Dana Whitehead McKee, Laura Ginsberg Abelson, Brown Goldstein and Levy LLP, Baltimore, MD, David Paul Niemeier, Mary Ann L. Wymore, Greensfelder Hemker And Gale PC, St. Louis, MO, for Defendants.

MEMORANDUM
JAMES K. BREDAR, District Judge.

Asher & Simons, P.A. and Dr. Stuart T. Zaller, LLC (“Plaintiffs”) brought this suit against j2 Global, Inc., j2 Global Canada, Inc., Wellington Wreaths, LLC, and several individuals (“Defendants”) alleging violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, and the Maryland Consumer Protection Act (“MCPA”), Md.Code Ann. Com. Law § 14–3201. Now pending before the Court is Defendant j2 Global Canada Inc.'s (“j2 Canada”) motion (ECF No. 62) for the Court to reconsider the order granting Plaintiffs' motion for partial summary judgment, (ECF No. 60), and the accompanying memorandum, (ECF No. 59), and to deny plaintiffs' motion for partial summary judgment. (ECF No. 45). For the reasons set forth below, j2 Canada's motion to reconsider will be GRANTED and plaintiffs' motion for partial summary judgment will be DENIED.

I. BACKGROUND

Plaintiffs allege that Defendants “sent, or aided and abetted or conspired to send” unsolicited facsimile advertisements to Plaintiffs during the period from May 11, 2010 through January 31, 2013. ( See Am. Compl., ECF No. 12.) Plaintiffs allege that they “suffered actual damages including the loss of paper and toner, and nuisance, as a result of the receipt of unsolicited fax ads.” ( Id. ¶ 31).

On May 1, 2013, j2 Canada filed its answer and special defenses. (ECF No. 29). As its tenth affirmative defense, j2 Canada pled that “[a]ny claim alleged in the Amended Complaint is barred because j2 Canada did not have a high degree of involvement in the sending of facsimiles at issue in the Amended Complaint.” ( Id. at 15). On June 10, Plaintiffs filed a motion for partial summary judgment regarding j2 Canada's tenth affirmative defense. (ECF No. 45). On September 3, this Court granted Plaintiffs' motion, (ECF No. 60), and, on September 17, j2 Canada filed the present motion for reconsideration. (ECF No. 62).

II. LEGAL STANDARDa. Motion for reconsideration

Rule 54(b) of the Federal Rules of Civil Procedure provides that “any order or other decision, however designated, ... may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.” See Fayetteville Investors v. Commercial Builders Inc., 936 F.2d 1462, 1469 (4th Cir.1991) (“An interlocutory order is subject for reconsideration at any time prior to the entry of a final judgment.”). Local Rule 105.10 further provides that “any motion to reconsider any order issued by the Court shall be filed with the Clerk no later than fourteen (14) days after entry of the order.”

The power to reconsider an order is “committed to the discretion of the district court.”

[977 F.Supp.2d 547]

Am. Canoe Ass'n v. Murphy Farms, Inc., 326 F.3d 505, 515 (4th Cir.2003). In exercising this discretion, courts must be sensitive to “concerns of finality and judicial economy.” Id. However, the “ultimate responsibility of the federal courts, at all levels, is to reach the correct judgment under law.” Id.

b. Motion for summary judgment

A party seeking summary judgment must show “that there is no genuine dispute as to any material fact” and that he is “entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). If a party carries this burden, then the court will award summary judgment unless the opposing party can identify specific facts, beyond the allegations or denials in the pleadings, that show a genuine issue for trial. Fed.R.Civ.P. 56(e)(2). To carry these respective burdens, each party must support its assertions by citing specific evidence from the record. Fed.R.Civ.P. 56(c)(1)(A). The court will assess the merits of the motion, and any responses, viewing all facts and reasonable inferences in the light most favorable to the opposing party. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Iko v. Shreve, 535 F.3d 225, 230 (4th Cir.2008).

III. ANALYSIS

At issue is j2 Canada's tenth affirmative defense, which states that “[a]ny claim alleged in the Amended Complaint is barred because j2 Canada did not have a high degree of involvement in the sending of the facsimiles at issue in the Amended Complaint.” (ECF No. 25 at 15). J2 Canada's basis for this claim is a rule promulgated by the Federal Communications Commission (“FCC”), pursuant to the TCPA, which provides that “a facsimile broadcaster will be liable for violations of paragraph (a)(4) of this section ... if it demonstrates a high degree of involvement in, or actual notice of, the unlawful activity and fails to take steps to prevent such facsimile transmissions.” 47 C.F.R. § 64.1200(a)(4)(vii). Plaintiffs have sought summary judgment on this affirmative defense on the basis that “liability for any sender under the TCPA, including j2 Canada, arises directly from the plain and ambiguous language of the TCPA, regardless of any additional liability imposed under the FCC's regulation.” (ECF No. 45 at 1).

After considering the plain-meaning of the FCPA, as well as the FCC rule at issue, this Court granted Plaintiffs' motion for partial summary judgment with regard to this affirmative defense. 47 U.S.C. § 227(b)(1)(C); 47 C.F.R. § 64.1200(a)(3); (ECF No. 59). However, in light of extensive briefing in the context of this motion for reconsideration and review of persuasive authority, the Court finds reason to reconsider its prior ruling.

This Court begins by considering whether the framework set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), applies in the present case. In Chevron, the Supreme Court held that “ambiguities in statutes within an agency's jurisdiction to administer are delegations of authority to the agency to fill the statutory gap in reasonable fashion. Filling these gaps, the Court explained, involves difficult policy choices that agencies are better equipped to make than courts.” Nat'l Cable & Telecommunications Ass'n v. Brand X Internet Services, 545 U.S. 967, 980, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005) (citing Chevron, 467 U.S. at 865–66, 104 S.Ct. 2778).

Here, the TCPA is within the FCC's jurisdiction to administer. As this Court has held in the past and continues to hold today, the FCC is “charged with the responsibility of implementing regulations to support the TCPA.”

[977 F.Supp.2d 548]

Worsham v. Acct. Receivables Mgmt., Inc., No. JKB–10–3051, 2011 WL 5873107 at *5 (D.Md., Nov. 22, 2011). Congress has delegated to the FCC the authority to “prescribe regulations to implement the requirements of” 47 U.S.C. § 227(b). 47 U.S.C. § 227(b)(2). See alsoH. Rep. No. 102–317 at 6 (1991) (“The [FCC] is also required to conduct a separate rulemaking to prescribe rules to restrict the use of any telephone facsimile machine, computer, or other electronic device to send unsolicited advertisement.”).

Plaintiffs argue that the FCC's regulatory authority with regard to the TCPA is limited to the issues set forth in subparagraphs (A) through (G) of paragraph (b)(2) of the TCPA, which is entitled “Regulations; exemption and provisions.” However, the first sentence of paragraph (b)(2) provides that “[t]he Commission shall prescribe regulations to implement the requirements of this subsection.” The next sentence, which introduces subparagraphs (A) through (G), reads “[i]n implementing the requirements the requirements of this subsection, the Commission—.” Therefore, while subparagraphs (A) through (G) provide the FCC with guidance—mandatory in part and permissive in others—they do not change the fact that Congress charged the FCC with prescribing regulations to implement the entirety of subsection (b), which includes the prohibition on the “use of] any facsimile machine, computer, or other device to send, to a telephone facsimile machine an unsolicited advertisement,” § 227(b)(1)(C), and the creation of a private right of action under the TCPA. § 227(b)(3).

The FCC rule at issue in this case is one that it has issued pursuant to this Congressional mandate. In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act (TCPA) of 1991, 18 F.C.C.R. 14014 (2003) (2003 TCPA Order ). In relevant part, it provides that a facsimile broadcaster will be liable for violations of paragraph (a)(4) of this section [, which prohibits the ‘use of a telephone facsimile machine ... to send an unsolicited advertisement to a facsimile machine,’] ... if it demonstrates a high degree of involvement...