Bridging Cmtys., Inc. v. Top Flite Fin., Inc.
| Decision Date | 17 January 2013 |
| Docket Number | Case No. 09-14971 |
| Parties | BRIDGING COMMUNITIES, INC., Plaintiff, v. TOP FLITE FINANCIAL, INC., Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
Hon. Lawrence P. Zatkoff
AT A SESSION of said Court, held in the United States Courthouse,
in the City of Port Huron, State of Michigan, on January 17, 2013.
PRESENT: THE HONORABLE LAWRENCE P. ZATKOFF
This matter is before the Court on Defendant's Motion to Dismiss Plaintiff's putative class action complaint [dkt 37]. The parties have fully briefed the Motion. The Court finds that the facts and legal arguments are adequately presented in the parties' papers such that the decision process would not be significantly aided by oral argument or additional briefing. Therefore, pursuant to E.D. Mich. L.R. 7.1(f)(2), it is hereby ORDERED that the Motion be resolved on the briefs submitted. For the reasons set forth below, Defendant's Motion to Dismiss is DENIED.
The facts of this case are straightforward. Plaintiff filed this lawsuit alleging that on or about March 20, 2006, Defendant sent an unsolicited facsimile advertisement to Plaintiff's facsimile machine in violation of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227.Plaintiff purports to bring this suit on behalf of itself and a class of all similarly-situated persons, which according to Plaintiff is at least 39 other individuals.
On December 22, 2009, Plaintiff filed a putative class action lawsuit against Defendant in this Court alleging violations of the TCPA. Defendant responded to Plaintiff's complaint on March 5, 2010, with a Motion to Dismiss that challenged the Court's subject-matter jurisdiction on the basis that federal courts cannot entertain private TCPA claims under 28 U.S.C. § 1331. On May 3, 2010, the Court granted Defendant's Motion to Dismiss and dismissed Plaintiff's case without prejudice. On May 18, 2010, Plaintiff appealed the dismissal to the United States Court of Appeals for the Sixth Circuit.
While the current case was pending in the Sixth Circuit, the United States Supreme Court ("Supreme Court"), on June 27, 2011, agreed to accept review of the United States Court of Appeals for the Eleventh Circuit's decision in Mims v. Arrow Financial Services, LLC. See Mims v. Arrow Fin. Servs., LLC, 421 F. App'x 920 (11th Cir. 2010), cert. granted, 131 S. Ct. 3063 (U.S. June 27, 2011) (No. 10-1195). The issue to be addressed in Mims was whether or not federal jurisdiction existed for private causes of action under the TCPA. See Mims v. Arrow Fin. Servs. LLC, 131 S. Ct. 740, 747 (2012) (). The Supreme Court set oral argument for November 28, 2011.
On November 17, 2011, the Sixth Circuit reversed and remanded the instant case to this Court for further proceedings, concluding that it was bound to follow Charvat v. Echostar, LLC, 630 F.3d 459 (6th Cir. 2010), which, at that time, was a recent decision holding that federal courts havefederal question jurisdiction over private TCPA claims.1 On remand, this Court sua sponte stayed this case on November 21, 2011, pending the Supreme Court's decision in Mims, supra.
On January 18, 2012, the Supreme Court issued its opinion in Mims and held that federal and state courts have concurrent jurisdiction over private suits arising under the TCPA. See Mims, 132 S. Ct. at 753. Accordingly, this Court lifted the stay on this case on January 23, 2012.
On August 13, 2012, Defendant filed the instant Motion to Dismiss alleging that Plaintiff has failed to state a claim upon which relief may be granted.
A motion brought pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be granted tests the legal sufficiency of a party's claims. The Court must accept as true all factual allegations in the pleadings, and any ambiguities must be resolved in that party's favor. See Jackson v. Richards Med. Co., 961 F.2d 575, 577-78 (6th Cir. 1992). While this standard is decidedly liberal, it requires more than a bare assertion of legal conclusions. See Advocacy Org. for Patients & Providers v. Auto Club Ins. Ass'n, 176 F.3d 315, 319 (6th Cir. 1999). A party must make "a showing, rather than a blanket assertion of entitlement to relief" and "[f]actual allegations must be enough to raise a right to relief above the speculative level" so that the claim is "plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). "A claim has facial plausibility when the party pleads factual content that allows the court to draw the reasonable inference the defendant is liable for the alleged misconduct." Id. at 556. See also Ashcroft v. Iqbal,556 U.S. 662, 696-97 (2009).
In deciding a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), this Court may only consider "the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the pleadings, and matters of which the [Court] may take judicial notice." 2 James Wm. Moore et al., Moore's Federal Practice ¶ 12.34[2] (3d ed. 2000).
Plaintiff brings this putative class action against Defendant alleging that Defendant sent unsolicited facsimile advertisements to Plaintiff and 39 other similarly-situated individuals in violation of the TCPA. Defendant's Motion seeks dismissal of Plaintiff's suit on three grounds: (1) that Plaintiff failed to meet certain conditions precedent necessary under Michigan law to pursue a private TCPA claim; (2) that Plaintiff's claim is untimely and barred by the applicable Michigan statute of limitations; and (3) that TCPA class action lawsuits are precluded by the Michigan Court Rules.
The TCPA prohibits the use of "any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement," unless certain statutory exceptions apply. 47 U.S.C. § 227(b)(1). An "unsolicited advertisement" is "any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission." Id. at § 227(a)(4). The TCPA gives private parties standing to enforce this prohibition: "A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State [an action for an injunction or monetary damages]." Id. at § 227(b)(3).
Defendant's entire Motion is premised on the argument that the TCPA's language, "if otherwise permitted by the laws or rules of court of a State," expressly conditions the viability of a private cause of action under the TCPA on the laws and or court rules of Michigan. In other words, Defendant argues, a complainant cannot bring a private TCPA claim if that claim is precluded by Michigan substantive or procedural law. The Court will now address the merits of Defendant's Motion.
Defendant first argues that, based on the TCPA's "if otherwise permitted" language, the Court must apply—instead of federal law—the Michigan statutes which (1) prohibit unsolicited facsimile advertisements, see Mich. Comp. Laws § 445.1772,2 and (2) require certain conditions to occur prior to commencing a private TCPA action, see Mich. Comp. Laws § 445.1776.,3 respectively. While neither the Sixth Circuit nor the Supreme Court has squarely addressed this issue, the Supreme Court's recent decision in Mims, supra, is persuasive evidence that Defendant's argument is baseless.
In support of its position, Defendant directs the Court's attention to two cases decided in the Second Circuit. See Giovanniello v. ALM Media, LLC, 660 F.3d 587 (2nd Cir. 2011), vacated , 133 S. Ct. 159 (2012); Holster v. Gatco, Inc., 618 F.3d 214 (2nd Cir. 2010). In both Giovanniello and Holster, the Second Circuit focused on the TCPA's congressional findings to determine that the TCPA's "if otherwise permitted" language has a literal interpretation: Congress afforded the states considerable power to determine what causes of action lie under the TCPA and, therefore, such an action cannot be brought if it is precluded by state law. According to Defendant, Plaintiff failed to state a plausible claim for relief because it did not, as required by Mich. Comp. Laws § 445.1776, fulfill any of the listed conditions before filing its TCPA suit.
Defendant's use of these cases, however, fails for two reasons. First, Defendant fails to note that Giovanniello has since been vacated by the Supreme Court and remanded to the Second Circuit for further consideration in light of Mims. See Giovanniello v. ALM Media, LLC, 133 S. Ct. 159 (2012). Second, the basis on which the Holster court relied for its holding, namely, its interpretation of Congress' intent behind its enactment of the TCPA, was viewed as flawed and effectively rejected by Mims, as explained more fully below.
Though the issue in Mims was not identical to the one presently before this Court, the discussion in that opinion undermines Defendant's argument that the previously-mentioned Michigan statutes are applicable here.4 In Mims, the Supreme Court resolved the much-debatedissue of whether the TCPA's "if otherwise permitted" language intimated a congressional desire to create a private right of action enforceable exclusively in state courts. 132 S.Ct. at 744. The Supreme Court unanimously concluded that states are not the sole arbiters of private TCPA actions, instead holding that federal and state courts enjoy concurrent jurisdiction over such actions. Id. at 745.
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