United States District Court, E.D. Missouri, Eastern Division
ALAN PRESSWOOD, D.C., P.C., individually and on behalf of all others similarly situated, Plaintiff,
PERNIX THERAPEUTICS HOLDINGS, et al., Defendants.
MEMORANDUM AND ORDER
NANNETTE A. BAKER UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Defendants Pernix Therapeutics
Holdings and Somaxon Pharmaceuticals, Inc.'s Motion to
Dismiss Plaintiff Alan Presswood, D.C. P.C.'s Second
Amended Complaint and Supplemental Motion to Dismiss
Plaintiff's Second Amended Complaint. [Docs. 29, 67.]
Plaintiff filed memoranda in opposition to Defendants'
motions to dismiss. [Docs. 34, 74.] Defendants filed Reply
Briefs. [Docs. 37, 75.] On November 7, 2016, the Court heard
oral argument on Defendants' motions to dismiss. During
the oral argument, Plaintiff filed a new motion to stay the
case until putative plaintiff Dr. Alan Presswood (Dr.
Presswood) completes currently pending bankruptcy litigation.
the Court is tasked with determining whether the current
Plaintiff has standing to bring this action, which the
parties agree it does not. Second, the Court must determine
whether it is required to stay this action until putative
plaintiff Dr. Presswood completes currently pending
bankruptcy litigation. For the following reasons, the Court
will grant Defendants' motions to dismiss and dismiss
action has a long and circuitous history.
Allen Presswood formed Associated Physical Medicine, P.C.
(APM) in 1990 as Presswood Chiropractic, with the name change
to APM occurring in 2001. [Doc. 75-1.] APM was
administratively dissolved by the State of Missouri in 2005.
[Doc. 75-2.] Dr. Presswood continued to file taxes in the
name of APM into 2011. [Doc. 74-5, Ex. 1.] In April 2011, two
unsolicited faxes were allegedly sent by Scienomics Group
addressed to Dr. Brent Palmer, who worked for the
administratively dissolved APM at the time. Dr. Presswood
contends that he managed APM as a sole proprietorship at the
time. On April 30, 2012, Dr. Presswood formed Alan Presswood,
D.C., P.C., a professional corporation. [Doc. 75-3.] On May
29, 2012, Dr. Presswood filed for personal chapter 7
bankruptcy in the Southern District of Illinois. [Doc. 75-4.]
Dr. Presswood claimed Alan Presswood D.C., P.C. and APM as
assets, but stated that APM was no longer operating. [Doc.
75-4 at 12.]
February 15, 2015, Plaintiff Alan Presswood, D.C., P.C.,
hereinafter referred to as Plaintiff, filed this case as a
class action against Defendants Pernix Therapeutics Holdings,
Somaxon Pharmaceuticals, Inc., and John Does 1-10 in the
Circuit Court of St. Louis County. Plaintiff also
contemporaneously filed a Motion to Certify a Class Action.
In its original Petition, Plaintiff accused Defendants of
violating the Telephone Consumer Protection Act, 47 U.S.C.
§ 227 (“TCPA”), the Missouri Merchandising
Practices Act, Mo. Rev. Stat. § 407.020, and committing
conversion. [Doc. 5.] Plaintiff claimed that Defendants sent
two unsolicited facsimile advertisements in April 2011. [Doc.
5.] Defendants removed the action to this court on April 8,
April 15, 2015, Plaintiff filed a Consent Motion to Dismiss
its Motion for Class Certification, asserting that the
parties agreed that until Plaintiff renewed its motion for
class certification or notifies the Court that it will not
pursue its class claims under Rule 23, Defendants agree not
to make any individual settlement offers or a Rule 68 Offer
of Judgment. On April 15, 2015, Defendants filed a Motion to
Dismiss Plaintiff's Complaint for lack of standing and
failure to state a claim on all counts. [Doc. 14.] On April
17, 2015, Plaintiff then filed a Motion to Dismiss Count III,
under the Missouri Merchandising Practices Act, without
prejudice. [Doc. 16.] On April 22, 2015, Plaintiff filed an
Amended Complaint. [Doc. 19.] On April 23, 2015, Plaintiff
filed a Second Amended Complaint, asserting only claims under
the TCPA. [Doc. 22.] The Court denied Plaintiff's Motion
to Dismiss Count III as moot due to the filing of the amended
complaints. [Doc. 28.]
15, 2015, Defendants filed a Motion to Dismiss
Plaintiff's Second Amended Complaint. [Doc. 29.]
Defendants asserted that Plaintiff lacked standing to sue
Defendants on its own or on behalf of a class,
Plaintiff's amended factual allegations are not and
cannot be true, and Plaintiff's revised allegations fail
as a matter of law. Defendants noted that Plaintiff had not
received the faxes and did not exist at the time the faxes
were sent. Defendants also asserted that the TCPA claim was
not included in Dr. Presswood's individual bankruptcy
filing. Plaintiff responded that Dr. Alan Presswood
(individual) should be allowed to join this action under
Federal Rule of Civil Procedure 17 as a real party in
interest. [Doc. 34.] In its reply Brief, Defendants asserted
that Plaintiff violated Rule 15(a)(2)'s requirement that
Plaintiff obtain consent or leave of court to file an Amended
Complaint. [Doc. 37.] Further, Defendants assert that
Plaintiff failed to respond to the Motion to Dismiss and
added new factual allegations in its brief. [Doc. 37.]
also filed a Motion for Leave to File a Third Amended
Complaint so that it could add Dr. Presswood as a Plaintiff.
[Doc. 35.] Defendants filed a memorandum in opposition
stating that Plaintiff had changed its basis for standing for
a third time and the proposed third amended complaint made
alternative and contradictory claims in a last ditch effort
to demonstrate standing. [Doc. 40.] Plaintiff filed a Reply
Brief, which stated that its motion for leave to amend should
be granted based on the need to add Dr. Presswood alone.
25, 2015, Dr. Presswood filed amended pleadings in the
bankruptcy court asserting this action as a claim of his
bankruptcy estate and he requested an exemption under
bankruptcy law. At a status conference on July 22, 2015, the
Court stayed ruling on Defendants' Motion to Dismiss
until the bankruptcy court addressed Dr. Presswood's
filings. [Doc. 48.] The Court also granted Plaintiff's
Motion to Withdraw its Motion for Leave to file a Third
Amended Complaint. [Doc. 51.]
September 15, 2016, the bankruptcy court for the Southern
District of Illinois ruled that at the time that this action
was filed, the claim belonged to the Trustee of Dr.
Presswood's bankruptcy estate and not Dr. Presswood.
[Doc. 67-2.] The bankruptcy court, however, found that the
claim could be exempted under bankruptcy law and as of the
date of the bankruptcy court's order the claim is
exempted from the estate. [Doc. 67-2.] After that ruling, Dr.
Presswood started additional litigation in the bankruptcy
court seeking a bankruptcy court order that the Trustee
abandon the claim. Before Dr. Presswood can attempt to obtain
standing, the claim would need to be abandoned. In this
court, Plaintiff sought leave to stay this case until the
proceedings regarding abandonment of the claim are completed
in bankruptcy court. [Doc. 70.] This court denied
Plaintiff's motion to stay and ordered Plaintiff to file
a memorandum in opposition to Defendants' Supplemental
Motion to Dismiss. [Doc. 73.] The Court heard oral argument
on Defendants' motions to dismiss on November 7, 2016. At
the time of the oral argument, Plaintiff renewed its Motion
to Stay pending the conclusion of the bankruptcy litigation
concerning Dr. Presswood.
Standard of Review
every federal case the court must be satisfied that it has
jurisdiction before it turns to the merits of other legal
arguments.” Carlson v. Arrowhead Concrete Works,
Inc., 445 F.3d 1046, 1050 (8th Cir. 2006). “It is
axiomatic that a court may not proceed at all unless it has
jurisdiction.” Crawford v. F. Hoffman-LaRoche,
267 F.3d 760, 764 (8th Cir. 2001). “If the court
determines at any time that it lacks subject matter
jurisdiction, the court must dismiss the action.”
Fed.R.Civ.P. 12(h)(3). Federal Rule of Civil Procedure
12(b)(1) requires dismissal if the court lacks subject matter
jurisdiction over a claim. To dismiss an action under Rule
12(b)(1), the complaint must either be successfully
challenged on the factual truthfulness of its assertions, or
successfully challenged on its face. Archdiocese of St.
Louis, v. Sebelius, No. 4:12-CV-924 JAR, 2013 WL 328926
at *4 (E.D. Mo. Jan. 29, 2013). A court deciding a motion
under Rule 12(b)(1) must distinguish between a facial attack
and a factual attack on jurisdiction. Osborn v.
U.S., 918 F.2d 724, 729, n. 6 (8th Cir. 1990). In a
facial attack, the court restricts itself to the face of the
pleadings and in a factual attack, the court considers
matters outside the pleadings. Id. Under a facial