United States District Court, E.D. Missouri, Eastern Division
ST. LOUIS HEART CENTER, INC., individually and on behalf of all others similarly situated, Plaintiff,
VEIN CENTERS FOR EXCELLENCE, INC., Defendant.
MEMORANDUM AND ORDER
CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE
St. Louis Heart Center, Inc. brought this action under the
Telephone Consumer Protection Act, 47 U.S.C. 227(b)(1)(C),
alleging that defendant Vein Centers for Excellence, Inc., a
marketing firm that provides graphic design and other
services to doctors, sent “junk faxes” to Heart
Center and thousands of others. I certified a class under
Rule 23, Fed. R. Civ. P., with Heart Center as the named
representative. Notice was sent to potential class members
and one opt out was returned. Plaintiff Heart Center then
sought summary judgment and statutory damages for 35, 211
unsolicited fax transmissions. I denied summary judgment
because, based on the evidence presented, no absent class
member could prove that they were “sent” a Vein
Centers junk fax, as required by the class definition. Now,
defendant Vein Centers seeks summary judgment, or
alternatively, class decertification because of the same lack
of proof of class membership.
on the Eighth Circuit's recent opinion discussing the
‘ascertainability' requirement for class
certification, McKeage v. TMBC, LLC, 847 F.3d 992
(8th Cir. 2017), and the fact that Heart Center provides no
objective criteria or common evidence for identifying
potential class members, the class in this case will be
decertified. I will deny summary judgment, and this case will
proceed to trial as to the named plaintiff only.
2007 or 2008, defendant Vein Centers hired fax broadcaster
Westfax to send out form fax advertisements to thousands of
fax numbers belonging to doctors and medical centers. Westfax
charged Vein Centers for the 35, 212 successful fax
transmissions, but not the many attempted transmissions that
did not go through. Westfax did not provide a list of the fax
numbers which were successfully sent an advertisement, and
there are no records available to correctly identify the junk
fax recipients. ECF No. 102-7 at 88:4-23.
Heart Center is a corporation owned by cardiologist Ronald
Weiss. It claims to have received multiple fax advertisements
from Vein Centers, including one that was part of a Westfax
fax broadcast that went to more than five thousand
cardiologists on September 15, 2009. ECF No. 106 at ¶
32. However, the year on the date of the Heart Center fax
submitted as evidence is unclear, and when Dr. Weiss was
shown the document in his deposition he testified he received
it one year earlier, on September 15, 2008. ECF No. 5-4; ECF
No. 83-2 at 34:6-36:22.
Telephone Consumer Protection Act (TCPA), 47 U.S.C.
227(b)(1)(C), prohibits the sending of unsolicited fax
advertisements. Heart Center filed this suit under the TCPA
on behalf of itself and others who received unsolicited fax
advertisements from Vein Centers. With Heart Center as the
named representative, I certified a class under Rule 23, Fed.
R. Civ. P., with the following class definition:
All persons or entities who, between January 15, 2008 and
September 15, 2009, were sent one or more telephone facsimile
messages by Westfax on behalf of Vein Centers for Excellence,
Inc. that did not inform the fax recipient both that (1) he
or she may make a request to the sender of the advertisement
not to send any future facsimile advertisements and that (2)
failure to comply with the request, within 30 days, is
the lists of fax numbers that Vein Centers provided to
Westfax for the unsolicited fax broadcasts (which include all
the fax numbers to whom transmission was attempted - not just
the ones to whom transmission was successful), class notice
was sent to potential class members by fax and then U.S.
Mail, if necessary. In response, one class member requested
exclusion from the class.
Heart Center sought summary judgment for 35, 211 unsolicited
fax transmissions. I denied Heart Center judgment as a matter
of law because the undisputed evidence did not show that any
individual person met the class definition. ECF No. 99.
Although Heart Center provided evidence of the
number of successfully transmitted junk faxes by
Vein Centers, there was no evidence of exactly which
fax numbers were successfully sent the junk faxes, and so the
plaintiff class was not entitled to summary judgment.
Defendant Vein Centers now seeks summary judgment, or
alternatively, class decertification.
Summary Judgment on Class Claims
determining whether to grant a motion for summary judgment,
the court views the facts - and any inferences from those
facts - in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). The movant bears the
burden of establishing that (1) it is entitled to judgment as
a matter of law and (2) there are no genuine issues of
material fact. Fed.R.Civ.P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). Once the movant has
met this burden, however, the non-moving party may not rest
on the allegations in its pleadings but must, by affidavit
and other evidence, set forth specific facts showing that a
genuine issue of material fact exists. Fed.R.Civ.P. 56(e).
the lack of evidence as to which fax numbers the junk faxes
were successfully transmitted, Vein Centers argues that it is
entitled to summary judgment for the same reason I denied it
to Heart Center - because no class member can prove that they
were “sent” one of the junk faxes. With no
classwide proof, Vein Centers maintains that if class members
came forward with individual testimony or submitted their ...