Gorss Motels, Inc. v.
| Decision Date | 02 February 2018 |
| Docket Number | No. 3:17-cv-1078 (VAB),3:17-cv-1078 (VAB) |
| Court | U.S. District Court — District of Connecticut |
| Parties | GORSS MOTELS, INC., a Connecticut corporation, individually and as the representative of a class of similarly-situated persons, Plaintiff, v. A.V.M. ENTERPRISES, INC., a Tennessee corporation, and John Does 1-5, Defendants. |
Gorss Motels, Inc. ("Gorss Motels" or "Plaintiff") filed this class action Complaint on June 29, 2017, alleging that A.V.M. Enterprises, Inc., and John Does 1-5 sent unsolicited facsimiles ("faxes") to Gorss Motels and other similarly situated plaintiffs in violation of the Telephone Consumer Protection Act of 1991, as amended by the Junk Fax Prevention Act of 2005, 47 U.S.C. § 227 ("JFPA"), and Conn. Gen. Stat. § 52-570c. Compl. ¶¶ 1-3.
Defendants moved to dismiss, ECF No. 34, and Plaintiff opposed the motion, ECF No. 38. For the following reasons, Defendants' motion to dismiss is DENIED.
Gorss Motels, individually and on behalf of all others similarly situated, alleges that A.V.M., a Tennessee corporation, sent unsolicited advertisements by facsimile ("fax") on or about June 15, 2015, June 23, 2015, July 15, 2015, October 19, 2015, and May 16, 2016. Compl. ¶¶ 3, 14. Gorss Motels alleges that the faxes "describe the commercial availability or quality of Defendants' products, goods and services." Id. ¶ 3. Gorss Motels alleges that it received five unsolicited faxes, and that A.V.M. receives "some or all of the revenues from the sale of the products, goods and services advertised on [the faxes], and Defendants profit and benefit for the sale of the products, goods and services advertised on [the faxes]." Id. ¶¶ 14-15.
Gorss Motels asserts that A.V.M. sent the same and similar faxes to at least forty other recipients within the four-year statute of limitations period, without obtaining the "recipients' express invitation or permission and without having an established business as defined by the [Telephone Consumer Protection Act] and its regulations." Id. ¶ 17.
Gorss Motels filed this Complaint on June 29, 2017, alleging that A.V.M. violated the Telephone Consumer Protection Act of 1991, as amended by the Junk Fax Prevention Act of 2005, 47 U.S.C. § 227. Id. ¶ 3. Gorss Motels also claims that A.V.M. did not provide a sufficient opt-out provision, as required by 47 C.F.R. § 64.1200. Id. ¶ 19. Gorss Motels also asserts claims under Conn. Gen. Stat. § 52-570c. Id. ¶ 3.
Gorss Motels claims that this Court has federal question jurisdiction over this case under 28 U.S.C. § 1331 and 47 U.S.C. § 227. Id. ¶ 7. In addition, Gorss Motels asserts that the Court has supplemental jurisdiction under 28 U.S.C. § 1367(a) over its state law claims. Id. ¶ 8. Gorss Motels also claims that the Court has personal jurisdiction over Defendants because "Defendants transact business within this judicial district, have made contacts within this judicial district, and/or have committed tortious acts within this judicial district." Id. ¶ 9. Finally, Gorss Motels claims that venue is proper under 28 U.S.C. §§ 1391(b)(2) because "this is the judicial district in which a substantial part of the events or omissions giving rise to the claims in this case occurred," id. ¶ 10, and that they bring this suit under 47 U.S.C. § 227(b)(3), which establishes a private right of action. Id. ¶ 34.
On October 2, 2017, A.V.M. moved to dismiss the Complaint under Federal Rules 12(b)(1) and 12(b)(6). Mot. Dismiss, ECF No. 34. A.V.M. argues that the faxes were sent to the recipients in the context of their relationships with Wyndham Worldwide, not as unsolicited advertisements. Id. at 6. Second, A.V.M. argues that the TCPA requires an opt-out notice only for unsolicited faxes; because these were not unsolicited, A.V.M. argues, this Count must also be dismissed. Id. at 7-9. A.V.M. also argues that the alleged technical violation of the opt-out requirement does not amount to an injury in fact under Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549 (2016).
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a plaintiff must state a claim for relief that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted); see also Fed. R. Civ. P. 8(a)(2) ().
A claim is facially plausible if "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. In other words, to state a plausible claim, a plaintiff's complaint must have "enough fact to raise a reasonable expectation that discovery will reveal evidence" supporting the claim. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). Although "detailed factual allegations" are not required, a complaint must offer more than "labels and conclusions," "a formulaic recitation of the elements of a cause of action," or "naked assertion[s]" devoid of "further factual enhancement." Id. at 555, 557.
The Complaint must be construed liberally, and "all reasonable inferences must be drawn in the plaintiff's favor." Concord Assocs., L.P. v. Entm't Properties Tr., 817 F.3d 46, 52 (2d Cir.2016); Cohen v. S.A.C. Trading Corp., 711 F.3d 353, 359 (2d Cir. 2013) (). Still, the Complaint must contain "more than a sheer possibility that a defendant has acted unlawfully." Galiano v. Fed. Nat. Title Ins. Co., 684 F.3d 309, 313 (2d Cir. 2012). In other words, the Court will not "accept as true a legal conclusion couched as a factual allegation." Iqbal, 556 U.S. at 678.
If a federal court lacks subject-matter jurisdiction under Rule 12(b)(1), the Court must dismiss the action. Fed. R. Civ. P. 12(h)(3). "Federal courts are courts of limited jurisdiction[.]" Gunn v. Minton, 568 U.S. 251, 256 (2013); see also Spokeo, Inc., 136 S. Ct. at 1547 (explaining that "[n]o principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies" (quoting Raines v. Byrd, 521 U.S. 811, 818 (1997)). "Objections to a tribunal's jurisdiction can be raised at any time[.]" Sebelius v. Auburn Reg'l Med. Ctr., 568 U.S. 145, 153 (2013). In determining whether a case or controversy exists, the district court will view all uncontroverted facts as true and "draw all reasonable inferences in favor of the party asserting jurisdiction." Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014). Where jurisdictional facts are in dispute, "the party asserting subject matter jurisdiction 'has the burden of proving by a preponderance of the evidence that it exists.'" Id. (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)).
A.V.M. moves to dismiss on two grounds. First, A.V.M. argues that Gorss Motels fails to allege that the faxes were unsolicited, as required under 47 U.S.C. 227(b)(1)(C). Mot. Dismiss at 5. Second, A.V.M. argues that it was not subject to an opt-out notice requirement on its faxes toGorss Motels, because the faxes were not unsolicited. Id. at 7. The Court finds that the Complaint sufficiently states a claim for relief on its face: that A.V.M. sent Gorss Motels unsolicited faxes in violation of the Junk Fax Prevention Act, 47 U.S.C. § 227, and a similar provision under Connecticut law, Conn. Gen. Stat. § 52-570c. Compl. ¶¶ 3, 19.
47 U.S.C. § 227(b)(1) makes it unlawful to send an unsolicited advertisement to a fax machine unless the sender has (1) an "established business relationship with the recipient"; (2) obtained the fax number through "voluntary communications of such number, within the context of such established business relationship," or because the recipient voluntarily made the number available through a directory, advertisement, or website; and (3) "the unsolicited advertisement contains a notice meeting the requirements under paragraph 2(D) . . . ." The FCC defines an existing business relationship as:
a prior or existing relationship formed by a voluntary two-way communication between a person or entity and a business or residential subscriber with or without an exchange of consideration, on the basis of an inquiry, application, purchase or transaction by the business or residential subscriber regarding products or services offered by such person or entity, which relationship has not been previously terminated by either party.
47 C.F.R. § 64.1200(f)(6). Paragraph (2)(D) enables the Federal Communications Commission ("FCC") to "prescribe regulations to implement the requirements of this subsection," including that the FCC "shall provide that a notice contained in an unsolicited advertisement" must contain an opt-out notice. 47 U.S.C. § 227(2)(D). The notice must be "clear and conspicuous and on the first page of the unsolicited advertisement," and it must state that the "recipient may make a request to the sender of the unsolicited advertisement not to send any future unsolicited advertisements to a telephone facsimile machine or machines . . . ." Id.
A.V.M. argues that "[a]lthough Plaintiff alleges that it did not give consent to AVM, it does not allege that it did not give consent to the Wyndham," and "[t]his deficiency is fatal to his claim." Id. at 6. A.V.M. argues that here, "the faxes themselves make plain that the faxes came from, or in concert, with Wyndham" and "in the context of Plaintiff's relationship as a 'Wyndham Worldwide entit[y][.]'" Id. A.V.M. also includes a franchise agreement between Super 8 Worldwide and Gorss Motels, Inc., and claims that Super 8 is...
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