Missouri ex rel Nixon v. Progressive Business
| Decision Date | 26 February 2007 |
| Docket Number | No. 06-5046-CV-SW-FJG.,06-5046-CV-SW-FJG. |
| Parties | State of MISSOURI, ex rel. Jeremiah W. (Jay) NIXON, Attorney General, Plaintiff, v. PROGRESSIVE BUSINESS PUBLICATIONS, INC., Defendant. |
| Court | U.S. District Court — Western District of Missouri |
J. Ronald Carrier, Missouri Attorney General's Office, Springfield; MO, for Plaintiff.
Erika M. Anderson, Mary Ann Wymore, Katherine A. Amelunke, Greensfelder, Hemker & Gale, PC, St. Louis, MO, for Defendant.
Pending before the Court are (1) Plaintiffs Motion to Remand (Doc. No. 9); and (2) Defendant's Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (Doc. No. 13). Each will be considered below.
On or about November 21, 2005, plaintiff filed this action in the Circuit Court of Lawrence County, Missouri. Within its state court petition, plaintiff asserts that defendant transmitted facsimile advertisements to certain Missouri residents in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. ("TCPA"). Plaintiff further asserts that the defendant's alleged violations of the TCPA constitute an unfair practice under the Missouri Merchandising Practices Act ("MPA"). Defendant was served with the petition on or after April 6, 2006, and filed its notice of removal on May 5, 2006.
Plaintiff has moved to remand this case to state court, stating that the Missouri Attorney General filed this lawsuit to enforce a state law, the Missouri Merchandising Practices Act ("MPA"), and plaintiff asserts that although the petition made a passing reference to a federal law, that does not create a federal question. Plaintiff indicates that it is not attempting to enforce the federal Junk Fax Prevention Act of 2005 [47 U.S.C. § 227(b)(1)(C)] and the Telephone Consumer Protection Act ("TCPA"); rather, plaintiff states that it is simply alleging that defendant has violated the TCPA and that such violation constitutes an unfair practice under the MPA. Plaintiff further asserts that, even if this Court found that a federal cause of action was pled on the face of the petition, this Court should remand all issues in which state law predominates (see 28 U.S.C. 1441(c)), and plaintiff states that "it is evident that questions of law and fact under the MPA predominate any issue which might, arguably, give rise under 28 U.S.C. § 1331 for jurisdiction of this Court, and this case should therefore be remanded."
As a preliminary matter, the Court notes that 28 U.S.C. § 1441(c) does not stand for the proposition that an entire case can be remanded if state issues predominate; instead, that statute allows the district court, in its discretion, to remand separate and independent claims in which state law predominates, while retaining jurisdiction over any remaining claims that allege a federal question. Further, this Court agrees with defendant's assertion that plaintiff has attempted to disguise a purely federal claim (i.e., a violation of the TCPA) as a state law claim in order to avoid federal court jurisdiction. See M. Nahas & Co., Inc. v. First Nat'l Bank of Hot Springs, 930 F.2d 608, 611 (8th Cir. 1991). Further, and notably, the TCPA provides that "The district courts of the United States ... shall have exclusive jurisdiction over all civil actions brought under this subsection." 47 U.S.C. § 227(1)(2). On the face of plaintiffs petition, plaintiff alleges that defendant's conduct "violates the Junk Fax Prevention Act of 2005, 47 U.S.C. § 227(b)(1)(C)," and that "[b]y violating the Telephone Consumer Protection Act, Defendant has also violated the Missouri Merchandising Practices Act, § 407.020, RSMo 2000, in that violating that federal Act constitutes an unfair practice under the Missouri Merchandising Practices Act." Given the content of plaintiffs petition, plaintiff has obviously pled a federal question on the face of the petition, and the case was properly removed by defendant pursuant to 28 U.S.C. §§ 1331 and 1441. Plaintiffs motion to remand (Doc. No. 9) is DENIED.
Defendant moves to dismiss plaintiff's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, or, in the alternative, for entry of summary judgment in its favor. Defendant states that the grounds for its motion are (1) the facsimiles identified in the complaint were not unsolicited, and therefore not in violation of the Junk Fax Prevention Act or the TCPA; (2) the MPA and TCPA are not interchangeable and serve different remedial goals; (3) plaintiff's allegations under the MPA are unconstitutional under the Supremacy Clause, as the TCPA preempts state statutes; and (4) plaintiff's application of the MPA in this matter violates the Dormant Commerce Clause, as the MPA discriminates against interstate commerce and serves no legitimate local purpose unrelated to economic development. These grounds will be considered below.
Rule 12(b)(6) governs dismissals for failure to state a claim upon which relief can be granted. The Court, in ruling on a motion to dismiss for failure to state a claim upon which relief can be granted, will not consider any matters outside the pleading. Fed.R. Civ. P. 12(b)(6). To clarify, matters excluded as outside the pleading include Gibb v. Scott, 958 F.2d 814, 816 (8th Cir.1992) ().
"A motion to dismiss for failure to state a claim should be granted only if it is clear that no relief could be granted under any set of facts, construing the allegations in the complaint favorably to the pleader." County of St. Charles, Mo. v. Mo. Family Health Council, 107 F.3d 682, 684 (8th Cir.1997) (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). "In considering a motion to dismiss, courts accept the plaintiffs factual allegations as true, but reject conclusory allegations of law and unwarranted inferences." Silver v. H & R Block, Inc., 105 F.3d 394, 397 (8th Cir.1997). "Thus, `[a] motion to dismiss should be granted as a practical matter only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief.'" Leiberkneckt v. Bridgestone/Firestone, Inc., 980 F.Supp. 300, 304 (N.D.Iowa 1997) (quoting Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir.1995)) (alteration in original).
Summary judgment is appropriate if the movant demonstrates that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The facts and inferences are viewed in the light most favorable to the nonmoving party. Fed.R.Civ.P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-590, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The moving party must carry the burden of establishing both the absence of a genuine issue of material fact and that such party is entitled to judgment as a matter of law. Matsushita, 475 U.S. at 586-90, 106 S.Ct. 1348.
Once the moving party has met this burden, the nonmoving party may not rest on the allegations in the pleadings, but by affidavit or other evidence, must set forth facts showing that a genuine issue of material fact exists. Fed.R.Civ.P. 56(e); Lower Bride Sioux Tribe v. South Dakota, 104 F.3d 1017, 1021 (8th Cir.1997). To determine whether the disputed facts are material, courts analyze the evidence in the context of the legal issues involved. Lower Brule, 104 F.3d at 1021. Thus, the mere existence of factual disputes between the parties is insufficient to avoid summary judgment. Id. Rather, "the disputes must be outcome determinative under prevailing law." Id. (citations omitted).
Furthermore, to establish that a factual dispute is genuine and sufficient to warrant trial, the party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to the facts." Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. Demanding more than a metaphysical doubt respects the appropriate role of the summary judgment procedure: "Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action." Celotex, 477 U.S. at 327, 106 S.Ct. 2548.
In plaintiffs state court petition, the only named complainants are Interstate Sewage Treatment Company and ACE Learning Centers. See State Court Petition, Exhibit to Doc. No. 1, ¶¶ 17, 18. Plaintiff alleges that Interstate Sewage Treatment Company received more than one unsolicited fax from defendant from June 22, 2005 through the date of the filing of the petition. See id. ¶ 17. Plaintiff further alleges that ACE learning Centers received at least two unsolicited faxes through the date of the filing of the petition. Id. ¶ 18. Defendant, however, asserts that both named, complainants had an established business relationship with defendant prior to their alleged receipt of facsimiles.
Interstate Sewage Treatment Co. ("Interstate"), through its representative Paul Heath, placed orders with Progressive on June 8, 2004 and September 27, 2001. See Declaration of Edward M. Satell, attached as Exhibit B to Doc. No. 14 ("Satell Declaration") at ¶¶...
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