Pasco v. Protus IP Solutions, Inc.

• Decision Date: 23 November 2011
• Docket Number: Civil Action No. RDB–08–3388.
• Citation: 826 F.Supp.2d 825
• Parties: Martin PASCO, et al., Plaintiffs, v. PROTUS IP SOLUTIONS, INC., Defendant.
• Court: U.S. District Court — District of Massachusetts

826 F.Supp.2d 825

Martin PASCO, et al., Plaintiffs,

v.PROTUS IP SOLUTIONS, INC., Defendant.

Civil Action No. RDB–08–3388.

United States District Court, D. Maryland.

Nov. 23, 2011.

Dana Whitehead McKee, Brown Goldstein and Levy LLP, Baltimore, MD, David Paul Niemeier, Mary Ann L. Wymore, Ryan Jeffrey Gavin, Greensfelder Hemker and Gale PC, St. Louis, MO, Thomas S. Hood, Hood and Hodges PA, Towson, MD, for Defendant.

Michael Craig Worsham, Law Office of Michael Craig Worsham, Forest Hill, MD, William Michael Jacobs, Law Office of W. Michael Jacobs, Columbia, MD, for Plaintiffs.

William Michael Jacobs, pro se.

MEMORANDUM OPINION

RICHARD D. BENNETT, District Judge.

This is an “unsolicited fax” action brought pursuant to the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, and the Maryland Telephone Consumer Protection Act (“Maryland TCPA”), Md. Code Ann. Com. Law §§ 14–3201, et seq. , by a group of five Plaintiffs: (1) Martin Pasco; (2) Baltimore Podiatry Group, Drs. Scheffler & Sheitel, P.A.; (3) Givens Collision Repair Center, Inc.; (4) Intelligent Devices, Inc.; and (5) Powers & Powers, P.A. (collectively “Plaintiffs”). Plaintiffs contend that they received unsolicited facsimile advertisements sent by the Defendant Protus IP Solutions, Inc., now known as j2 Global Canada, Inc., carrying on business as Protus IP Solutions (“Protus”).¹

Pending before this Court are Plaintiffs' and Defendant Protus' cross-motions for summary judgment (ECF Nos. 212 and 230).² This Court has reviewed the record, as well as the pleadings and exhibits, and conducted a hearing on October 14, 2011 pursuant to Local Rule 105.6 (D. Md. 2011). For the reasons that follow, the Defendant's Motion for summary judgment (ECF No. 212) is GRANTED IN PART and DENIED IN PART, and the Plaintiffs' Motion for Summary Judgment (ECF No. 230) is DENIED.

BACKGROUND

The Telephone Consumer Protection Act provides that “[i]t shall be unlawful for any person within the United States ... to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement,” and creates a private right of action to allow recipients of unsolicited fax ads to sue the senders. 47 U.S.C. §§ 227(b)(1)(C); § 227(b)(3). The TCPA provides that a person or entity bringing suit may recover “for actual monetary loss from such a violation, or to receive $500 in damages for each such violation.” Id. § 227(b)(3)(B). Moreover, if a court finds that a defendant willfully or knowingly violated the TCPA by sending unsolicited fax advertisements, the court may, in its discretion, treble the amount of damages to $1,500. Id. § 227(b)(3)(C). In creating a private right of action, the TCPA authorizes a plaintiff to file suit “if otherwise permitted by the laws or rules of court of a State ... in an appropriate court of that State.” Id. § 227(b)(3). The TCPA was passed by Congress to combat the effects of “junk faxes,” namely the “depletion of the recipient's time, toner, and paper, and occupation of the fax machine and phone line.” Resource Bankshares Corp. v. St. Paul Mercury Ins. Co., 407 F.3d 631, 639 (4th Cir.2005). Similarly, the Maryland TCPA provides that a person may not violate the federal TCPA, and allows for $500 per violation and reasonable attorney's fees.

On December 17, 2008, the Plaintiffs filed a three count Complaint against Protus, a Canadian corporation located in the province of Ontario, alleging violations of the TCPA and its state analog, the Maryland TCPA. At issue are approximately 357 individual fax advertisements that were sent to, and received by the Plaintiffs. Both parties seek summary judgment as to all of the faxes at issue—while the Plaintiffs argue that Protus is liable for every fax at issue, Protus argues that many of the faxes at issue were not sent by Protus, and with respect to faxes that may have been sent by the company, it is not liable for a variety of different reasons.

Specifically, Protus argues that certain of the faxes at issue are time barred; that Protus' own transmission data rules out certain faxes; that the corporate Plaintiffs lack standing under the Maryland TCPA; that the Plaintiffs cannot recover damages under both the federal TCPA and the Maryland TCPA; and that Protus cannot be held liable under Count III of the Plaintiffs' Complaint insofar as the Telemarketing Sales Rule does not apply to fax broadcasters. Aside from arguing about specific faxes, Protus also argues that it cannot be held liable for any of the faxes at issue insofar as Protus merely broadcasts advertisements for its customers, and is therefore not the “sender” of those faxes. Finally, Protus argues that the federal TCPA and the Maryland TCPA are both unconstitutional.

STANDARD OF REVIEW

Rule 56 of the Federal Rules of Civil Procedure provides that a court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A material fact is one that “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue over a material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. In considering a motion for summary judgment, a judge's function is limited to determining whether sufficient evidence exists on a claimed factual dispute to warrant submission of the matter to a jury for resolution at trial. Id. at 249, 106 S.Ct. 2505.

In undertaking this inquiry, this Court must consider the facts and all reasonable inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). However, this Court must also abide by its affirmative obligation to prevent factually unsupported claims and defenses from going to trial. Drewitt v. Pratt, 999 F.2d 774, 778–79 (4th Cir.1993). If the evidence presented by the nonmoving party is merely colorable, or is not significantly probative, summary judgment must be granted. Anderson, 477 U.S. at 249–50, 106 S.Ct. 2505. On the other hand, a party opposing summary judgment must “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); see also In re Apex Express Corp., 190 F.3d 624, 633 (4th Cir.1999). This Court has previously explained that a “party cannot create a genuine dispute of material fact through mere speculation or compilation of inferences.” Shin v. Shalala, 166 F.Supp.2d 373, 375 (D.Md.2001) (citations omitted).

When both parties file motions for summary judgment, as here, the court applies the same standard of review to both motions, with this Court considering “each motion separately on its own merits to determine whether either [side] deserves judgment as a matter of law.” Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir.2003), cert. denied, 540 U.S. 822, 124 S.Ct. 135, 157 L.Ed.2d 41 (2003); see also havePower, LLC v. Gen. Elec. Co., 256 F.Supp.2d 402, 406 (D.Md.2003) (citing 10A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 2720 (3d ed. 1983)).

ANALYSIS

As a preliminary matter, this Court notes that with respect to the matter of pure liability, both parties' motions for summary judgment fail. In other words, at this stage in the litigation, there are genuine issues of material fact that preclude granting summary judgment against either party. However, as will be discussed below, the parties have raised numerous legal issues, the resolution of which will help narrow the dispute and crystalize the issues for trial. Accordingly, this Court will begin its analysis by identifying the genuine issues of material fact that preclude granting summary judgment. Next, this Court will consider the Defendant's arguments as to why it may not be held liable for any of the faxes at issue, and will then consider the specific legal arguments regarding particular faxes at issue. When all is said and done, this case boils down to a simple question—how many unsolicited fax advertisements can the Plaintiffs prove were sent by Protus?—a question that must necessarily be resolved at trial.

I. Issues of Material Fact Preclude Summary Judgment as to Liability

As evidenced in the briefing, and as candidly acknowledged by Protus at the hearing held on October 14, 2011, the single best way to determine whether a particular fax at issue was sent using Protus' fax transmission system, is to match the fax against Protus' own transmission data. Starting on January 1, 2007, Protus began saving transmission data that records identifying information on every fax it transmits. Protus forcefully argues that “the absence of a matching transmission record demonstrates conclusively that there was not a transmission over Protus' network to a Plaintiff ...” and that in the absence of such matching transmission data, a “fax at issue could not have been sent over Protus' system.” Def.'s Mem. at 15, ECF No. 213–1. However, because Protus is a Canadian corporation, early in this litigation the company sought a protective order directing the Plaintiffs to comply with certain Canadian statutes regulating the production of information such as its transmission data. This Court granted Protus' request, and directed Plaintiffs to comply with two Canadian statutes before seeking transmission data from the Defendant. See November 3, 2009 Mem. Op., ECF No. 108.

The Plaintiffs apparently never sought the requisite Canadian court order, and consequently have no transmission data on which to support their claims that Protus sent them the unsolicited faxes at issue in this litigation. Instead, the Plaintiffs seek to impose TCPA liability on Protus on the ground that the...