Us Fax Law Center, Inc. v. Ihire, Inc.

• Decision Date: 22 June 2005
• Docket Number: No. Civ. 04-CV-00344LTBCBS.,Civ. 04-CV-00344LTBCBS.
• Citation: 374 F.Supp.2d 924
• Parties: US FAX LAW CENTER, INC., a Colorado corporation, Plaintiff, v. IHIRE, INC., n/k/a Value Asset Leasing, Inc., a Maryland corporation, et al., Defendants.
• Court: U.S. District Court — District of Colorado

374 F.Supp.2d 924

US FAX LAW CENTER, INC., a Colorado corporation, Plaintiff, v. IHIRE, INC., n/k/a Value Asset Leasing, Inc., a Maryland corporation, et al., Defendants.

No. Civ. 04-CV-00344LTBCBS.

United States District Court, D. Colorado.

June 22, 2005.

Frank J. Ball, Stephen Songer Allen, Frank J. Ball, Law Offices, Greenwood Village, CO, for Plaintiff.

Brandee L. Caswell, Kenneth Kent Skogg, Lowe, Fell & Skogg, LLC, Denver, CO, for Defendants.

MEMORANDUM OPINION AND ORDER

BABCOCK, Chief Judge.

Plaintiff, U.S. Fax Law Center ("Plaintiff" or "USFLC"), an "assignee," alleges that Defendants iHire and persons employed by or otherwise related to iHire ("Defendants") sent 143 "junk faxes" to various commercial entities, "assignors," in violation of both the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227 et seq., and the Colorado Consumer Protection Act ("CCPA"), C.R.S. § 6-1-101 et seq. Plaintiff also brings Colorado common-law claims for invasion of privacy, negligence, trespass, and conversion, all based on the same facts underlying the TCPA/CCPA claims.

In my Order of March 28, 2005, US Fax Law Ctr., Inc. v. iHire, Inc., 362 F.Supp.2d 1248 (D.Colo.2005) ("iHire") (supplemented by a second Order, US Fax Law Ctr., Inc. v. iHire, Inc. 2005 WL 1405503 (D.Colo.2005)), I dismissed Plaintiff's TCPA and invasion-of-privacy claims.

Plaintiff seeks statutory damages in the amount of $151,000, plus an additional amount of three times the statutory damages to the extent that willful, knowing, and/or bad-faith violations are shown, plus attorney fees, for a total of $478,000 plus costs. It does not seek actual damages of any kind.

Defendants move for summary judgment and for Rule 12(b)(6) dismissal on the remaining common-law claims and on the CCPA claim. For the following reasons, I grant the motion.

I. Law

A. Summary Judgment

The purpose of a summary judgment motion is to assess whether trial is necessary. White v. York Intl' Corp., 45 F.3d 357, 360 (10th Cir.1995). I shall grant summary judgment if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A fact is material if it might affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The non-moving party has the burden of showing that there are issues of material fact to be determined. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A party seeking summary judgment bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, interrogatories, and admissions on file together with affidavits, if any, which it believes demonstrate the absence of genuine issues for trial. Id. at 323, 106 S.Ct. 2548; Mares v. ConAgra Poultry Co., 971 F.2d 492, 494 (10^th Cir.1992). Once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried. Otteson v. United States, 622 F.2d 516, 519 (10^th Cir.1980); Fed.R.Civ.P. 56(e). These specific facts may be shown "by any of the kinds of evidentiary materials listed in Rule 56(c), except the pleadings themselves." Celotex at 324, 106 S.Ct. 2548.

If a reasonable juror could not return a verdict for the non-moving party, summary judgment is proper and there is no need for a trial. Id. at 323, 106 S.Ct. 2548. The operative inquiry is whether, based on all documents submitted, reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict. Liberty Lobby, 477 U.S. at 250, 106 S.Ct. 2505. However, I should not enter summary judgment if, viewing the evidence in a light most favorable to the non-moving party and drawing all reasonable inferences in that parties' favor, a reasonable jury could return a verdict for that party. Id. at 252, 106 S.Ct. 2505; Mares at 494. Moreover, a court may not consider "evidence" that is merely hearsay or general opinions unsupported by fact. Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1541 (10^th Cir.1995).

Rule 12(b)(6)

Under Fed.R.Civ.P. 12(b)(6), a district court may dismiss a complaint for failure to state a claim upon which relief can be granted if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). If the plaintiff has pled facts that would support a legally cognizable claim for relief, a motion to dismiss should be denied. See id. In evaluating a 12(b)(6) motion to dismiss, "all well-pleaded factual allegations in the ... complaint are accepted as true and viewed in the light most favorable to the nonmoving party." Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10^th Cir.1999).

Fed.R.Civ.P. 12(b)(6) does not provide a procedure for resolving a contest about the facts or the merits of the case. Thus, one must read Fed.R.Civ.P. 12(b)(6) in conjunction with Fed. R. Civ. P 8(a), which sets forth the requirements for pleading a claim in federal court. Federal R. Civ. P 8(a) requires "a short and plain statement of the claim showing that the pleader is entitled to relief." The statement need not contain detailed facts, but it must "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley at 47, 78 S.Ct. 99. A plaintiff is not required to state precisely each element of the claim. See 5 Charles A. Wright and Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE § 1216, at 154-59 (1990). Nonetheless, a plaintiff must "set forth factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory." Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1^st Cir.1988).

II. Discussion

A. Undisputed Facts

Each of Plaintiff's claims stem from the same facts. Plaintiff alleges Defendants sent unsolicited fax advertisements to 28 third parties located in Colorado, Michigan, and Arizona. The third parties assigned all their rights in the faxes to Plaintiff. Plaintiff contends it has standing to assert its claims against Defendants as an assignee.

Plaintiff has never received any of the faxes that form the basis of the claims asserted in the Amended Complaint. See Amended Complaint, Defendants' Ex. A, ¶¶ 8, 12. Plaintiff's sole basis for standing is an assignee. See id. Plaintiff does not seek to recover any actual damages for any of the claims asserted in this action. See id. at 18-19; Dfdts' Ex. B at 3 (Plaintiff's Rule 26(a)(1) disclosures); Dfdts' Ex. C at 13 (Plaintiff's responses to Defendant iHire's First Set of Discovery Requests; responses to Interrogatories 18 and 19: "Plaintiff seeks only statutory damages as provided by the U.S. Congress."). The sole damages that Plaintiff seeks to recover in this action are statutory damages identified in the TCPA and CCPA, including $500 for each alleged violation of the TCPA, and treble damages. See Dfdts' Ex. A at 18-19; Dfdts' Ex. B at 3; Dfdts' Ex. C. at 13.

B. Common-law Claims

I begin with the common-law claims by noting that Plaintiff, in its response to this motion, does not discuss them. It states: " [t]he parties have agreed in principal to a stipulation for dismissal with prejudice of the remaining common[-] law claims of negligence, conversion[,] and trespass, as a means of simplifying the litigation.... It is anticipated that this stipulation will be submitted to the Court for its approval within the next ten (10) days. In light of the anticipated dismissal, the arguments raised by Defendants concerning the common[-] law claims would be moot and Plaintiff will not address those issues in its response." Response at 2.

The Court has not received a stipulated motion to dismiss the common-law claims. Therefore, I do not consider them moot.

1. Negligence

A cause of action for negligence in the state of Colorado cannot be established without actual loss or damage. See Bayly, Martin & Fay, Inc. v. Pete's Satire, Inc., 739 P.2d 239, 242 (Colo.1987) (fourth element is "actual loss or damage resulting to the interests of the plaintiff"). Plaintiff bears the burden of proving the elements of negligence by a preponderance of the evidence. Id. Plaintiff has not alleged and cannot prove that either it or its assignors suffered an actual loss or injury as the result of actions about which Plaintiff complains. Plaintiff has admitted there are no actual damages, and has admitted the only damages it seeks are statutory, expressly permitted under the TCPA instead of actual damages. See 47 U.S.C. § 227. Therefore, Plaintiff's negligence claim fails both because there is no genuine issue of material fact as to the existence of actual damages under Rule 56 and because Plaintiff has failed to state a negligence claim under Rule 12(b)(6). Therefore, I dismiss the negligence claim.

2. Conversion

Similarly, in order to establish a claim for conversion, a plaintiff must show it suffered some actual injury or damages stemming from converted property. See Culpepper v. Pearl St. Bldg., Inc., 877 P.2d 877, 881 n. 6 (Colo.1994). Plaintiff fails to allege that actual or nominal damages have been incurred as a result of conversion of personal property. It alleges only that " [v]iolation of the TCPA and the CCPA ... constitutes negligence. [And,] [t]he conduct of iHire constitutes ... conversion of personal property of the Plaintiff's assignors," "Plaintiff's Assignors have been damaged by ... Defendant iHire's violations of the aforesaid statutes", and " [t]he facts...