Mccall Law Firm, PLLC v. Crystal Queen, Inc.
| Decision Date | 20 September 2018 |
| Docket Number | Case No. 4:15-cv-00737-KGB |
| Parties | MCCALL LAW FIRM, PLLC, on behalf of itself and all other entities and persons similarly situated, Plaintiffs v. CRYSTAL QUEEN, INC., et al., Defendants |
| Court | U.S. District Court — Eastern District of Arkansas |
Alex G. Streett, James A. Streett, Streett Law Firm, P.A., Robert M. Veach, Phillips & Veach, P.A., Russellville, AR, Joe P. Leniski, Jr., Branstetter, Stranch & Jennings PLLC, Nashville, TN, for Plaintiffs.
Crystal Queen Inc., Stittsville, ON, Canada, pro se.
Caroline B. Paillou, Pro Hac Vice, Mary Ann Wymore, Greensfelder, Hemker & Gale, P.C., St. Louis, MO, Martin A. Kasten, Friday, Eldredge & Clark, LLP, Little Rock, AR, for Defendants.
Rudolf Galan, Stittsville, ON, Canada, pro se.
Adriana Galan, Stittsville, ON, Canada, pro se.
Before the Court is defendants Rudolf Galan, Adriana Galan, and Crystal Queen, Inc.'s (collectively, "Crystal Defendants") motion to strike class allegations (Dkt. No. 59). Plaintiff McCall Law Firm, PLLC ("McCall") timely filed its response to the motion (Dkt. No. 64). For the reasons set forth below, the Court denies the Crystal Defendants' motion.
McCall is a law firm located in Pope County, Arkansas (Dkt. No. 4, ¶ 1). Individual defendants Mr. and Ms. Galan are residents of Ontario, Canada. On January 30, 2015, McCall originally filed this action against Crystal Queen, Inc., d/b/a Crystal Training, a Canadian corporation, in the Circuit Court of Pope County, Arkansas (Dkt. No. 1, ¶ 1). On September 21, 2015, McCall filed its amended class action complaint in that court to add defendants Mr. and Ms. Galan (See id. ). On December 3, 2015, Crystal Training removed the case to this Court with the consent of separate defendants Mr. and Ms. Galan (Id. , Exhibit 2).
McCall's amended class action complaint alleges that all defendants violated the Telephone Consumer Protection Act of 1991 ("TCPA"), codified at 47 U.S.C. § 227, by purposefully transmitting an unsolicited advertisement by facsimile to a telephone facsimile machine belonging to McCall located in Pope County, Arkansas (Dkt. No. 4). McCall alleges that the unsolicited facsimile advertised computer software training sessions (Id. ). On March 10, 2016, Mr. and Ms. Galan filed separate motions to dismiss (Dkt. Nos. 21, 23). The Court denied both motions to dismiss (Dkt. No. 36).
After their motions to dismiss were denied by the Court, Mr. and Ms. Galan filed their answers to the amended class action complaint (Dkt. Nos. 41, 42). In their answers, Mr. and Ms. Galan both asserted multiple affirmative defenses, including lack of standing, constitutional violations, and class defects (Id. ).
Counsel for all defendants filed a motion to withdraw as counsel on October 3, 2017 (Dkt. Nos. 55, 56). In the same motion, counsel informed the Court that a motion to strike class allegations was imminent (Id. ¶¶ 3-4). The Court granted the motions to withdraw and directed Mr. and Ms. Galan to inform the Court whether they would proceed pro se ; the Court also directed Crystal Training to procure new counsel or risk a default judgment (Dkt. No. 58, at 2).
Former counsel for Crystal Defendants, Ms. Wymore, filed the present motion to strike class allegations (Dkt. No. 59) on October 24, 2017. Neither the Galans nor Crystal Training have informed the Court about their future plans for acquiring legal representation.
5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1382 (3d ed. 2009).
The Court construes the Crystal Defendants' standing and constitutional arguments as a motion for judgment on the pleadings pursuant to Rule 12(c). See Fed. R. Civ. P. 12(h) ().
A court will grant a Rule 12(c) motion for judgment on the pleadings if a plaintiff has "[f]ailed to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(h)(2)(C). A motion for judgment on the pleadings is subject to the same standard as is a Rule 12(b)(6) motion to dismiss. NanoMech, Inc. v. Suresh , 777 F.3d 1020, 1023 (8th Cir. 2015). When considering a motion for judgment on the pleadings, the Court must accept as true "all factual allegations set out in the complaint and must construe the complaint in the light most favorable to the plaintiff, drawing all inferences in his favor." See Wishnatsky v. Rovner , 433 F.3d 608, 610 (8th Cir. 2006). The plaintiff must make sufficient factual allegations to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A complaint must contain enough facts to state a claim that is plausible on its face, not merely conceivable. Id. at 570, 127 S.Ct. 1955. "Judgment on the pleadings is appropriate only when there is no dispute as to any material facts and the moving party is entitled to judgment as a matter of law." See id.
Relying upon the recent decision from the Supreme Court, Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016), the Crystal Defendants argue that McCall has not alleged a harm that satisfies Article III's injury-in-fact requirement and therefore McCall lacks standing to bring this suit (Dkt. No. 60, at 3). The Court construes this argument as a motion for judgment on the pleadings. The Court disagrees and finds that McCall has standing to bring the present TCPA action.
Standing is a jurisdictional issue, so the Court addresses it first. In order to establish standing, McCall "must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo , 136 S.Ct. at 1547 (citing Lujan v. Defenders of Wildlife , 504 U.S. 555, 560-561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal citations omitted) ). McCall bears the burden of establishing these elements. Id.
Per Spokeo , Article III standing requires a "concrete" injury, rather than a "conjectural or hypothetical" one. Spokeo , 136 S.Ct. at 1548 (citing Lujan , 504 U.S. at 560, 112 S.Ct. 2130 ). A plaintiff must establish that it has suffered " ‘an invasion of a legally protected interest’ that is concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical’ " Id. at 1548 (citing Lujan , 504 U.S. at 560, 112 S.Ct. 2130 ). An injury is "particularized" if it affects the plaintiff "in a personal and individual way," while "concreteness" requires that an injury be "de facto," or in other words, the injury must actually exist. Id. at 1548. The Supreme Court recognized that Congress may "elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate" to create standing. Spokeo , 136 S.Ct. at 1549 (emphasis in original). The Court acknowledged that not all violations of a statute constitute a "concrete" injury, as a "bare procedural violation, divorced from any concrete harm," is not a judiciable harm. Id.
The Court also reaffirmed that "intangible injuries" can qualify as "concrete injuries." Id. To determine whether an intangible injury is concrete, the Court noted that there are two important considerations: historical practice and Congressional judgment. Id. First, the Court looks to "historical practice," as it is "instructive to consider whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts." Id. (internal citations omitted). Second, the Court explained that "[Congress'] judgment is also instructive and important" because "Congress is well positioned to identify intangible harms that meet minimum Article III requirements." Id. However, "Congress' role in identifying and elevating intangible harms 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. (emphasis in original).
In some cases, a statutory violation by itself may not qualify as a "concrete" injury. For example, the plaintiff in Spokeo alleged that the defendant published inaccurate information about him in violation of the Fair Credit Reporting Act ("FCRA"). The Court noted that although this was a technical violation of the plaintiff's rights, it may have resulted "in no harm." Id....
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