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St. Louis Heart Center Inc. v. Nomax Inc.

United States District Court, E.D. Missouri, Eastern Division

March 20, 2017

ST. LOUIS HEART CENTER, INC., individually and on behalf of all others similarly situated, Plaintiffs,
v.
NOMAX, INC., Defendant.

          MEMORANDUM AND ORDER

          RONNIE L. WHITE UNITED STATES DISTRICT JUDGE.

         This matter comes before Defendant Nomax, Inc.'s Motion for Summary Judgment (ECF No. 74) and Defendant Nomax, Inc.'s Motion to Dismiss for Lack of Standing (ECF No. 90). These matters are fully briefed and ready for disposition. Because the Motion to Dismiss is dispositive, the Court only addresses that Motion and dismisses this action.

         BACKGROUND

         Plaintiff St. Louis Heart Center, Inc. ("SLHC") filed this putative class action in Missouri state court under the Telephone Consumer Protection Act of 1991 ("TCPA"), alleging Defendant Nomax, Inc. ("Nomax") sent SLHC and a class of others fax advertisements that failed to comply with the regulations prescribed under the TCPA by the Federal Communications Commission (FCC). This action was removed to federal court on March 24, 2015.

         In the Third Amended Complaint (ECF No. 72, "TAC"), SLHC purports to allege a putative class action with a single claim against Nomax for a violation of the TCPA, 47 U.S.C. §227. SLHC alleges that Nomax sent SLHC (and a class of others) twelve fax advertisements during the class period, each advertising the product "Effer-K." (TAC, ¶4). The TAC alleges that the twelve fax advertisements "do not contain a notice compl[ia]nt with 47 C.F.R. §64.1200, " which requires that all fax advertisements, even those sent with "prior express invitation or permission, " contain opt-out notice "inform[ing] the recipient of the ability and means to avoid future advertisements." (TAC, ¶17).

         DISCUSSION

         I. MOTION TO DISMISS

         A. Standard for Motion to Dismiss for Lack of Standing

         "Article III standing represents 'perhaps the most important' of all jurisdictional requirements." Gray v. City of Valley Park, Mo., 567 F.3d 976, 983 (8th Cir. 2009 (quoting FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990)). This doctrine "requires federal courts to satisfy themselves that the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant [its] invocation of federal-court jurisdiction." Summers v. Earth Island Inst, 555 U.S. 488, 129 S.Ct. 1142, 1149, 173 L.Ed.2d 1 (2009) (internal quotations and emphasis omitted). In the normal course, the plaintiff has the responsibility clearly to allege facts demonstrating that it is a proper party to invoke judicial resolution of the dispute and the exercise of the court's remedial powers. Warth v. Seldin, 422 U.S. 490, 518 (1975). This assures the existence of that measure of concrete adverseness necessary to sharpen the presentation of issues necessary for the proper resolution of the constitutional questions. City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983).

         "If a plaintiff lacks standing, the district court has no subject matter jurisdiction." Gray v. City of Valley Park, Mo., 567 F.3d 976, 980 (8th Cir.2009) (internal quotations and citations omitted); Morse v. Vinson, No. 3:09CV00153, 2010 WL 385945, at *2 (E.D. Ark. Jan. 27, 2010). "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); Alternate Fuels, Inc. v. Cabanas, 538 F.3d 969, 975 (8th Cir.2008) (subject matter jurisdiction can be raised at any time).

         B. Defendant's Motion to Dismiss (ECF No. 90)

         First, Nomax argues that SLHC lacks standing to pursue this claim because its alleged harm is not "concrete and particularized." (ECF No. 91 at 1 (citing Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1548, 194 L.Ed.2d 635 (2016)). Nomax maintains that SLHC has not alleged any concrete and particularized injury resulting from the disputed faxes because SLHC does not dispute that it consented to receiving the faxes.

         In response, SLHC relies argues that it did not give Nomax "prior express invitation or permission" to send fax advertisements. (ECF No. 92 at 3).[1] Moreover, even if it had given such permission, SLHC argues that the opt-out notices violate the FCC regulations since they do not contain a "fax number to opt out" or a phone number to opt out and do not state that the sender "will comply within thirty days or they are in violation of the law." (ECF No. 92 at 3 (citing the deposition of Dr. Ronald A. Weis, Principal of SLHC)). Dr. Weis admitted that he did not attempt to opt out of the faxes because he asserted previous attempts to do so with other faxes were ineffective. (ECF No. 92 at 3-4).

         SLHC cites to several non-Eighth Circuit cases where the courts found "concrete" injuries as a result of the transmission of facsimiles, including loss of toner and paper and use of the telephone line. (ECF No. 92 at 10-11 (JWD Auto., Inc. v. DJM Advisory Grp. LLC, No. 215CV793FTM29MRM, 2016 WL 6835986 (M.D. Fla. Nov. 21, 2016); Fauley v. Drug Depot,Inc., 204 F.Supp.3d 1008 (N.D. 111. 2016); Physicians Healthsource, Inc. v. AS MedicationSols., LLC, No. 12-CV-05105, 2016 WL 5390952 (N.D. 111. Sept. 27, 2016); Brodsky v. Humana Dental Ins. Co., No. 1:10-CV-03233, 2016 WL 5476233, at *11 (N.D. 111. Sept. 29, 2016) (unsolicited faxes "occupied his fax line and machine, used his toner and paper, and wasted his time"). SLHC notes that it alleges that the subject faxes "occupied the fax lines and fax machines of Plaintiff and the class and prevented Plaintiffs (and the class') fax line and fax machine from being used for Plaintiffs (and the class') business purposes" during the transmission). (TAC, ΒΆ35). SLHC claims that Nomax's assertion that SLHC lacks standing because the subject faxes were sent with prior express permission confuses the issue of standing with a merits inquiry. SLHC asserts that "[w]hehter the faxes in fact violated the TCPA or the regulations prescribed under the TCPA is the issue to be decided on the merits, " not here. (ECF No. 92 at 11-12). SLHC contends that Nomax's failure to provide the proper opt-out disclosures ...


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