DocketNumber: Case No. 6:17–cv–1734–Orl–37KRS
Citation Numbers: 305 F. Supp. 3d 1342
Judges: Dalton
Filed Date: 4/4/2018
Status: Precedential
Modified Date: 7/25/2022
Before the Court is Defendants' Motion to Dismiss and Supporting Memorandum of Law (Doc. 22 ("Motion ") ), and Plaintiff's Memorandum in Opposition to Defendants' Motion to Dismiss (Doc. 28). For the following reasons, the Motion is due to be denied.
*1345I. BACKGROUND
On August 31, 2015, Defendants Transamerica Financial Advisors, Inc. ("TFA "), World Financial Group, Inc. ("WFG "), World Financial Group Insurance Agency, Inc. ("WFGIA ") and John Does 1-5 (collectively, "Defendants "), sent an unsolicited facsimile advertisement to Plaintiff ("Fax "). (See Doc. 1, ¶¶ 2, 12, 14, 21, 30, 35; see also Doc. 1-2.) Defendants allegedly sent the Fax and other unsolicited faxes to Plaintiff and at least forty other recipients without first receiving the recipients' express invitation or permission or the required opt-out language as required by Telephone Consumer Protection Act of 1991 ("TCPA "). (Id. ¶ 15.)
Plaintiff initiated this putative class action against Defendants, alleging violations of the TCPA, as amended by the Junk Fax Prevention Act of 2005,
II. THE TCPA
The TCPA prohibits "any person within the United States ... [from] us[ing] any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine" ("Fax Provision "). See
III. 12( B )(1) MOTION
A. Legal Standard
Standing to bring and maintain a lawsuit is fundamental to invoking a federal court's subject matter jurisdiction. DaimlerChrysler Corp. v. Cuno ,
B. Analysis
Defendants first facially attack Plaintiff's standing to sue under the TCPA. (Doc. 28, pp. 6-8.) To establish constitutional standing, a plaintiff must plausibly allege: (1) injury-in-fact; (2) causation; and (3) redressability. Spokeo, Inc. v. Robins , --- U.S. ----,
Contrary to Defendants' argument, Plaintiff has sufficiently alleged an injury-in-fact. In the TCPA context, a plaintiff sufficiently pleads a concrete, particularized, and personal injury where facts allege that "the plaintiff's fax machine is occupied while the unsolicited fax is being sent and the plaintiff must shoulder the cost of printing the unsolicited *1346fax." Florence Endocrine Clinic, PLLC v. Arriva Med., LLC ,
Plaintiff has satisfied this standard. The Complaint alleges that: (1) "Defendants sent the [Fax], on or about August 31, 2015, via facsimile transmission from telephone facsimile machines, computers or other devices to the telephone lines and facsimile machines of Plaintiff and members of the Plaintiff Class" (Doc. 1, ¶ 30); (2) Plaintiff printed the Fax (see id. ¶ 34); and (3) Plaintiff's fax machine was occupied for a period of time (id. ¶ 35). So Plaintiff has sufficiently alleged an injury-in-fact and the Court rejects this basis for dismissal.
IV. 12( B )(6) MOTION
A. Legal Standard
Under the minimum pleading requirements of the Federal Rules of Civil Procedure, plaintiffs must provide short and plain statements of their claims with simple and direct allegations set out in numbered paragraphs and distinct counts. See Fed. R. Civ. P. 8(a), 8(d), & 10(b). If a complaint does not comport with these minimum pleading requirements, it is plainly barred; or, if it otherwise fails to set forth a plausible claim, then it may be dismissed under Rule 12(b)(6). See Ashcroft v. Iqbal ,
In assessing the sufficiency of factual content and the plausibility of a claim, courts may consider only: (1) the allegations of the complaint; (2) the exhibits attached to the complaint; (3) documents that are undisputed and central to plaintiffs' claim; and (4) matters subject to judicial notice. See Reese v. Ellis, Painter, Ratterree & Adams, LLP ,
B. Analysis
Defendants argue that the Complaint should be dismissed under Rule 12(b)(6) because Plaintiff fails to allege sufficient facts to state a cognizable TCPA claim. (See Doc. 22, pp. 9-13.) Defendants' arguments miss the mark. To state a claim for violation of the Fax Provision of TCPA, courts require a plaintiff to allege that: (1) the defendant sent the fax to a telephone facsimile machine using a telephone facsimile machine, computer, or other device; (2) the fax was an advertisement;
Here, the Complaint alleges that Defendants used a telephone facsimile machine to send the Fax to the telephone lines and facsimile machines of Plaintiff and the putative class. (Doc. 1 ¶¶ 2, 12, 21, 30, 31, 35; see also Doc. 1-2). The Complaint also alleges that the Fax advertises products, goods, and services from which Defendants' derive revenue. (Doc. 1, ¶ 13; see also Doc. 1-2). Finally, Plaintiff maintains that Defendants sent the Fax to it and the putative class without permission or without requisite opt-out language. (Doc. 1, ¶¶ 14, 15, 21, 30, 35). Accepting these allegations as true, Plaintiff has pled sufficient facts to survive dismissal under Rule 12(b)(6).
Defendant also urges the Court to dismiss Plaintiff's "class allegations" under Rule 12(b)(6) because they fail to support a putative class action. (Doc. 22, pp. 13.) Such an argument is premature. Dismissing class allegations at the pleading stage is the functional equivalent of denying class certification. See Herrera v. JFK Med. Ctr. Ltd P'Ship ,
V. 12( B )(2) MOTION
A. Legal Standard
Under Rule 12(b)(2), a party may seek dismissal for lack of personal jurisdiction. To establish personal jurisdiction over a nonresident defendant, a plaintiff "initially need only allege sufficient facts to make out a prima facie case of jurisdiction." Posner v. Essex Ins. Co., Ltd. ,
*1348Louis Vuitton Malletier, S.A. v. Mosseri ,
B. Analysis
WFG and WFGIA-both non-Florida corporations-seek dismissal of the claims against them contending that the Court lacks personal jurisdiction over them.
The Court, therefore, employs a two-part inquiry to determine whether it has personal jurisdiction over nonresident Defendants WFG and WFGIA: (1) whether the forum state's long-arm statute authorizes an exercise of personal jurisdiction; and (2) if so, whether that exercise of jurisdiction would violate the Due Process Clause of the Fourteenth Amendment. Louis Vuitton ,
1. Long-arm statute
Florida's long-arm statute authorizes an exercise of specific personal jurisdiction where a claim arises from a defendant's commission of "a tortious act within this state."
Here, the Complaint adequately alleges that all Defendants sent the Fax to Plaintiff-a Florida corporation, with its principal place of business in Merritt Island, Florida-in violation of the TCPA. (Doc. 1, ¶¶ 8, 30, 34.) The Complaint also adequately alleges that Defendants' transmission of the Fax caused Plaintiff to suffer injuries including the occupation of its telephone lines and facsimile machine. (See id. ¶¶ 16, 35.) Hence the Court may exercise specific personal jurisdiction over WFG and WFGIA. See Bagg,
2. Due process
To determine whether exercising specific personal jurisdiction comports with due process, courts employ a three-part test, which examines:
(1) whether the plaintiff's claims arise out of or relate to at least one of the defendant's contacts with the forum [ ("Relatedness Prong ") ]; (2) whether the nonresident defendant purposefully availed himself of the privilege of conducting activities within the forum state, thus invoking the benefit of the forum state's laws [ ("Purposeful Availment Prong ") ]; and (3) whether the exercise of personal jurisdiction comports with traditional notions of fair play and substantial justice [ ("Fair Play Prong ") ].
Louis Vuitton ,
Based on the Complaint, the Relatedness Prong is easily met. This requires a "direct causal relationship between the defendant, the forum, and the litigation," Fraser v. Smith ,
Regarding the Purposeful Availment Prong, because this case involves an intentional tort, there are two applicable tests to determine whether purposeful availment has occurred: (1) the "effects test" articulated in Calder v. Jones ,
The Court concludes that the Fair Play Prong is also satisfied. In so concluding, the Court considered:
(a) the burden on the defendant, (b) the forum State's interest in adjudicating the dispute, (c) the plaintiff's interest in obtaining convenient and effective relief, (d) the interstate judicial system's interest in obtaining the most efficient resolution of controversies, and (e) the shared interest of the several States in furthering fundamental social policies.
McGow v. McCurry ,
First, there is no indication that adjudicating this case in Florida would be unconstitutionally burdensome for WFG and WFGIA. Second, "Florida has a very strong interest in affording its residents a forum to obtain relief from intentional misconduct of nonresidents causing injury in Florida." Lovelady ,
3. Class allegations
In a last ditch effort, Defendants argue that the Court lacks personal jurisdiction over WFG and WFGIA regarding the putative class because "[t]he class definition includes 'all persons' who 'were sent telephone facsimile messages' and is therefore not limited to putative members who were sent faxes in Florida." (Doc. 22, pp. 18-19.) As support, Defendants' chiefly rely on Bristol-Myers Squibb Company v. Superior Court of California, San Francisco County , --- U.S. ----,
First, Bristol-Myers was not a class action; rather, it was a multi-plaintiff products liability action originally filed in California State court that named both resident and non-resident plaintiffs.
"In a mass tort action, like the one in Bristol-Myers , each plaintiff is a real party in interest to the complaints, meaning that they were named as plaintiffs in the complaints."
VI. CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED that Defendants' Motion to Dismiss and Supporting Memorandum of Law (Doc. 22) is DENIED .
DONE AND ORDERED in Chambers in Orlando, Florida, on April 3, 2018.
The TCPA defines "unsolicited advertisement" as "any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission, in writing or otherwise."
To the extent Defendants find fault with the Complaint because it contains allegations based on "information and belief," this argument is meritless. (Doc. 22, p. 7.) The Twombly plausibility standard does not preclude pleading facts alleged "upon information and belief" where that belief is "based on factual information that makes the inference of culpability possible." See, e.g., SCOMA Chiropractic, P.A. v. Jackson Hewitt Inc. , No. 2:17-cv-24-FtM-38CM,
TFA concedes that it has offices and officers located in Florida, but "expressly reserves and does not waive its defense that the Court lacks personal jurisdiction over [it]." (Doc. 22, p. 16, n. 14). TFA's position is foreclosed by the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 12(h)(1) (setting forth waiver of Rule 12(b) defenses); 12(g)(2) (foreclosing opportunity to bring a second motion based on a defense that was available to a party but omitted in an earlier motion). So TFA has waived the defense of lack of personal jurisdiction.
Florida's long-arm statute "provides for both specific and general jurisdiction." Louis Vuitton ,
Lovelady analyzed an previous version of the statute, where the tortious acts provision was codified at Florida Statute § 48.193(1)(b).
The Eleventh Circuit has also applied the traditional minimum contacts test in intentional tort cases. See, e.g., Sec.Exchange Comm'n v. Carrillo ,