Career Counseling, Inc. v. Amerifactors Fin. Grp., LLC
| Decision Date | 22 December 2020 |
| Docket Number | Civil Action No. 3:16-cv-3013-JMC |
| Citation | 509 F.Supp.3d 547 |
| Court | U.S. District Court — District of South Carolina |
| Parties | CAREER COUNSELING, INC. d/b/a Snelling Staffing Services, a South Carolina corporation, individually and as the representative of a class of similarly situated persons, Plaintiff, v. AMERIFACTORS FINANCIAL GROUP, LLC, and John Does 1–5, Defendants. |
John Gressette Felder, Jr., McGowan Hood and Felder, Columbia, SC, Brian J. Wanca, Pro Hac Vice, Glenn L. Hara, Pro Hac Vice, Ross M. Good, Pro Hac Vice, Ryan Michael Kelly, Pro Hac Vice, Wallace C. Solberg, Pro Hac Vice, Anderson and Wanca, Rolling Meadows, IL, Jordan Christopher Calloway, McGowan Hood and Felder LLC, Rock Hill, SC, for Plaintiff.
Jonathan Mark Knicely, William H. Latham, Nelson Mullins Riley and Scarborough LLP, Columbia, SC, Douglas B. Brown, Pro Hac Vice, Rumberger Kirk and Caldwell, Orlando, FL, Lauri A. Mazzuchetti, Pro Hac Vice, Whitney M. Smith, Pro Hac Vice, Kelley Drye and Warren LLP, Parsippany, NJ, for Defendants.
Plaintiff Career Counseling, Inc. d/b/a Snelling Staffing Services, on behalf of itself and all others similarly situated, filed the instant putative class action seeking damages and injunctive relief from Defendants Amerifactors Financial Group, LLC ("AFGL") and John Does 1–5 (collectively "Defendants") for alleged violations of the Telephone Consumer Protection Act ("TCPA") of 1991,1 as amended by the Junk Fax Prevention Act of 2005 ("JFPA"),2 47 U.S.C. § 227, and the regulations promulgated under the TCPA by the United States Federal Communications Commission ("FCC"). (ECF No. 70.)
This matter is before the court on AFGL's Motion to Dismiss Plaintiff's First Amended Class Action Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure (ECF No. 137). AFGL asserts that dismissal is appropriate because Career Counseling failed to either "allege that it has suffered actual concrete damage sufficient to establish Article III standing" or "allege[ ] critical facts required to establish a plausible TCPA violation." (ECF No. 137 at 1.) Career Counseling opposes AFGL's Motion to Dismiss asserting that it "has cured the defects the [c]ourt found in the initial Complaint in dismissing without prejudice, and federal courts have overwhelmingly held that a TCPA fax violation constitutes ‘concrete’ injury sufficient to establish Article III standing." (ECF No. 139 at 1–2.) For the reasons set forth below, the court DENIES AFGL's Motion to Dismiss pursuant to Rule 12(b)(1) and DENIES AFGL's Motion to Dismiss pursuant to Rule 12(b)(6). (ECF No. 137.)
Career Counseling alleges that "on or about June 28, 2016, Defendants transmitted by telephone facsimile machine an unsolicited facsimile to Plaintiff [Career Counseling]’s fax number of 803-359-3008" that stated in relevant part as follows:
AMERIFACTORS Phone: (407)566-1150
—FUNDING BUSINESS IS OUR BUSINESS— Fax: (407)566-1250
fsudovsky@amerifactors.com
Fax Cover
To: Gina McCuen From: Frank Sudovsky
Fax: 8033593008 Date: 6/28/16
Re: Financing for SNELLING STAFFING SVC
AmeriFactors is ready to help your company with your financing needs. We have been in
business since 1990, and have funded over $5 Billion to U.S. businesses of all sizes
Our application process is fast and easy, with 98% of all applicants approved. Bankruptcy and
bad credit are okay. The services we offer are not a loan and there is nothing to pay back
If you would like to learn more, call me at the number below, or fill out the form and fax it back
to me at 407-557-3611
Sincerely
Call me today and save $600
off of your closing costs
407-566-1150
Frank Sudovsky
Senior Vice President of Business Development
407.566.1150
fsudovsky@amerifactors.com
Fill out this form and fax to: (407) 557-3611
Name:______________________________ Company:_______________________________
Email:____________________________________ Phone:__________________________
Amerifactors is a wholly owned subsidiary of Gulf Coast Bank,3 Member FDIC
If you would like to be removed from our contact list, just dial 888-979-1777 and enter fax #. Thank you.
[Editor's Note: The preceding image contains the reference for footnote3 ].
(ECF Nos. 70 at 3 ¶ 13, 70-1 at 2.) Career Counseling further alleges that "Defendants faxed the same and other unsolicited facsimiles without [permission or] the required opt-out language to Plaintiff and more than 25 other recipients." (ECF No. 70 at 4 ¶¶ 15, 16.)
On September 2, 2016, Career Counseling filed a putative Class Action Complaint in this court alleging violation of the TCPA. (ECF No. 1 at 8 ¶ 27–13 ¶ 36.) On October 28, 2016, AFGL filed a Motion to Dismiss. (ECF No. 29.) After the parties responded and replied to the Motion to Dismiss (ECF Nos. 43 & 47), the court entered an Order that granted AFGL's Motion to Dismiss pursuant to Rule 12(b)(1) and dismissed the Class Action Complaint without prejudice. (ECF No. 61 at 10.) After receiving leave from the court (see ECF No. 67), Career Counseling filed a First Amended Class Action Complaint on November 28, 2017, alleging revised class claims for violation of the TCPA. (See ECF No. 70.) AFGL then filed a Motion to Dismiss (ECF No. 72) on December 21, 2017, and a Motion to Stay Litigation Pending Resolution of Petition Before the FCC (ECF No. 76) on February 2, 2018.4 On September 28, 2018, the court granted the stay, but denied the Motion to Dismiss with leave to refile. (ECF No. 88.) The court subsequently extended the stay twice. (ECF Nos. 92, 96.)
In response to the petition by AFGL asking the FCC "to clarify that faxes sent to ‘online fax services’ are not faxes sent to ‘telephone facsimile machines,’ the Consumer and Government Affairs Bureau5 issued a declaratory ruling on December 9, 2019, finding that an online fax service that receives faxes "sent as email over the Internet" is not protected by the TCPA.6 (See ECF No. 98-1 at 1, 4–5.) The court lifted the stay on January 8, 2020, but stayed the case again on April 16, 2020, after being informed by AFGL that it had sent a Notice of Constitutional Challenge (ECF No. 120) to the Attorney General of the United States pursuant to Rule 5.1(a) drawing into question the constitutionality of the TCPA, as amended by the JFPA. On May 18, 2020, the Government filed a response to AFGL's Notice of Constitutional Challenge asserting that "intervention [wa]s premature prior to Defendants’ filing[ ] a motion to dismiss on constitutional grounds." (ECF No. 126 at 2.)
On July 15, 2020, AFGL filed the instant Motion to Dismiss the First Amended [Class Action] Complaint. (ECF No. 137.) Plaintiff filed its Opposition to the Motion to Dismiss the First Amended [Class Action] Complaint on July 29, 2020, to which AFGL filed a Reply Memorandum of Law in Further Support of the Motion to Dismiss on August 14, 2020. (ECF Nos. 139, 147.) In further support of their respective positions, the parties submitted Supplemental Authority on December 9, 2020, and December 18, 2020, and presented arguments to the court at a hearing on December 11, 2020. (ECF Nos. 164, 165, 166, 169, 170.)
This court has jurisdiction over Career Counseling's claim alleging violation of the TCPA via 28 U.S.C. § 1331, as it arises under the laws of the United States, and also via 47 U.S.C. § 227(b)(3), which empowers actions under the TCPA "in an appropriate court of th[e] State ...." Id. See also Mims v. Arrow Fin. Servs., LLC , 565 U.S. 368, 386–87, 132 S.Ct. 740, 181 L.Ed.2d 881 (2012) ().
Article III of the Constitution limits the jurisdiction of the federal courts to the consideration of "cases" and "controversies." U.S. Const. art. III, § 2. "Federal courts are courts of limited subject matter jurisdiction, and as such there is no presumption that the court has jurisdiction." Pinkley, Inc. v. City of Frederick, Md. , 191 F.3d 394, 399 (4th Cir. 1999). A Rule 12(b)(1) motion for lack of subject matter jurisdiction raises the fundamental question of whether a court has jurisdiction to adjudicate the matter before it. Fed. R. Civ. P. 12(b)(1). In determining whether jurisdiction exists, the court is to "regard the pleadings’ allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Richmond, Fredericksburg & Potomac R.R. Co. v. United States , 945 F.2d 765, 768 (4th Cir. 1991) (citing Adams v. Bain , 697 F.2d 1213, 1219 (4th Cir. 1982) ). "The moving party should prevail only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Id. (citation omitted). The plaintiff bears the burden of proof on questions of subject matter jurisdiction. See Evans v. B.F. Perkins Co. , 166 F.3d 642, 647 (4th Cir. 1999).
Standing is an essential component of a justiciable "case" under Article III. Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 102, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Standing implicates the court's subject matter jurisdiction and is governed by Rule 12(b)(1). Crumbling v....
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