United States District Court, E.D. Missouri, Eastern Division
ST. LOUIS HEART CENTER, INC., individually and on behalf of all others similarly situated, Plaintiffs,
NOMAX, INC., Defendant.
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE.
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.
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.
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).
MOTION TO DISMISS
Standard for Motion to Dismiss for Lack of Standing
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).
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).
Defendant's Motion to Dismiss (ECF No. 90)
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.
response, SLHC relies argues that it did not give Nomax
"prior express invitation or permission" to send
fax advertisements. (ECF No. 92 at 3). 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).
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, ¶35). 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 ...