Kaye et al v. Merck & Co., Inc. et al

Filing 73

ORDER denying without prejudice 36 Motion to Dismiss; denying without prejudice 37 Motion to Dismiss; denying without prejudice 43 Motion to Dismiss; denying without prejudice 44 Motion to Dismiss. Please read the attached order in full. Parties are directed to contact chambers to schedule a telephone conference. Signed by Judge Robert N. Chatigny on 9/30/2011. (Ratakonda, M)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ROGER H. KAYE and
ROGER H. KAYE, MD PC, on behalf
of themselves and all others
similarly situated,
Plaintiffs,
v.
MERCK & CO., INC. and
MEDLEARNING, INC.,
Defendants.

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CASE NO. 3:10-CV-1546(RNC)

RULING AND ORDER
Plaintiffs Roger H. Kaye and Roger H. Kaye, MD PC
(collectively “Kaye”) bring this action against defendants Merck
& Co., Inc. and Medlearning, Inc. alleging violations of 47
U.S.C. § 227, the Telephone Consumer Protection Act (“TCPA”).
Kaye alleges that defendants sent an unsolicited fax
advertisement to Kaye’s fax machine in violation of TCPA.
Defendants move to dismiss Kaye’s complaint.
44.

Docs. 36, 37, 43,

For the reasons set forth below, I deny the motions to

dismiss without prejudice.
I.

Discussion
There is no federal question jurisdiction in a TCPA case.

See Gottlieb v. Carnival Corp., 436 F.3d 335, 336 (2d Cir. 2006);
Foxhall Realty Law Offices, Inc. v. Telecomm. Premium Servs.,
Ltd., 156 F.3d 432, 434 (2d Cir. 1998).

Kaye is entitled to

proceed in federal court only if the action satisfies the
requirements of the Class Action Fairness Act (“CAFA”).

See 28

U.S.C. § 1332(d)(2005).
CAFA provides for jurisdiction when:
the matter in controversy exceeds the sum or value
of $5,000,000, exclusive of interest and costs,
and is a class action in which(A) any member of a class of plaintiffs is a
citizen of a State different from any
defendant;
(B) any member of a class of plaintiffs is a
foreign state or a citizen or subject of a
foreign state and any defendant is a citizen
of a State; or
(C) any member of a class of plaintiffs is a
citizen of a State and any defendant is a
foreign state or a citizen or subject of a
foreign state.
28 U.S.C. § 1332(d)(2).
members.

There must be at least 100 class

28 U.S.C. § 1332(d)(5)(B).

Kaye has pleaded sufficient facts to establish a prima facie
basis for CAFA jurisdiction.

With regard to the amount in

controversy, Kaye alleges that 10,000 or more faxes have been
sent by defendants in violation of TCPA.

TCPA provides for

statutory damages of $500 for each violation.
(b)(2)(G)(ii)(3).
million.

47 U.S.C. § 227

Thus, the amount in controversy can exceed $5

Kaye alleges that the citizenship of the parties

satisfies CAFA’s requirement of minimal diversity.

And Kaye

alleges that there are thousands of class members.
Defendants have moved to dismiss the complaint, partly on
the basis that CAFA’s requirements cannot be met as a matter of
law.

In this regard, defendants urge that the case is unsuitable

for adjudication as a class action under Rule 23.
A district judge may certify a class only after determining

that Rule 23's requirements have been met.

See In re Initial

Public Offerings Sec. Litig., 471 F.3d 24, 41 (2d Cir. 2006).
The existing record is insufficient to permit a reliable
determination of whether this case can be maintained as a class
action.

Because further development of the record is required,

discovery will be needed at this time.

To promote efficiency and

avoid prejudice, discovery will be limited to issues necessary to
determine whether a class meeting the requirements of CAFA should
be certified.
II.

Conclusion
Accordingly, the motions to dismiss are hereby denied

without prejudice.

The parties are directed to confer in an

attempt to reach agreement on a joint plan for discovery and to
contact chambers to schedule a telephone conference.
So ordered this 30th day of September 2011.

/s/ RNC
Robert N. Chatigny
United States District Judge