Scoma Chiropractic, P.A. v. Dental Equities, LLC et al
Filing
79
OPINION AND ORDER denying 65 motion to dismiss. Signed by Judge John E. Steele on 1/11/2017. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
SCOMA CHIROPRACTIC, P.A., a
Florida
corporation,
WILLIAM
P.
GRESS,
an
Illinois
resident,
and
FLORENCE MUSSAT, M.D., S.C.,
an
Illinois
service
corporation,
individually
and as the representative of
a
class
of
similarlysituated persons,
Plaintiffs,
v.
Case No: 2:16-cv-41-FtM-99MRM
DENTAL EQUITIES, LLC, JOHN
DOES (1-10), FIRST ARKANSAS
BANK & TRUST, and MASTERCARD
INTERNATIONAL INCORPORATED,
a Delaware corporation,
Defendants.
OPINION AND ORDER
This matter comes before the Court on defendant MasterCard
International Incorporated’s (defendant or MasterCard) Motion to
Dismiss (Doc. #65) filed on November 10, 2016.
Plaintiffs filed
a response in opposition (Doc. #72) and MasterCard replied (Doc.
#77).
For the reasons set forth below, the motion is denied.
I.
This is a junk fax case.
On September 26, 2016, plaintiffs
filed a Third Amended Class Action Complaint (Doc. #55) against
Dental
Equities,
First
Arkansas
Bank
&
Trust,
International Incorporated, and John Does 1-10. 1
MasterCard
The one-count
Complaint alleges that defendants violated the Telephone Consumer
Protection
Act
of
1991
(TCPA),
as
amended
by
the
Junk
Fax
Protection Act of 2005, 47 U.S.C. § 227, by sending plaintiffs
(and others) unsolicited commercial advertisements by facsimile
machine beginning in December of 2015 (i.e. “junk faxes”).
The
junk faxes plaintiffs received (Docs. ##55–1 – 55-3) invites
recipients to apply for a DoctorsClub MasterCard, and did not
include certain opt-out language that plaintiffs argue is required
by the TCPA.
The junk faxes included a picture of the DoctorsClub
credit card, which bears the MasterCard logo.
(Id.)
Plaintiffs allege on information and belief that MasterCard
entered into an agreement with one or more of the other defendants
to permit the credit card to carry the MasterCard brand for which
MasterCard was to receive part of the revenue from the card’s use.
(Doc. #55, ¶ 13.)
Plaintiffs state that MasterCard provided
1
This case has been stayed as to defendants First Arkansas
Bank & Trust and Dental Equities only due to an underlying
settlement. (Doc. #78.)
- 2 -
substantial money to Dental Equities to market the card, and that
MasterCard paid for, knew of, and permitted the fax broadcasting
at issue in this case.
(Id.)
Plaintiffs plead that MasterCard
is a responsible party under the TCPA because MasterCard benefited
from, or would benefit from, the fax marketing of the credit card
and provided the funds for the fax advertising to take place.
(Id.)
Plaintiffs proposed class definition in relevant part
includes persons who were sent fax messages advertising goods or
services by or on behalf of defendants.
(Id. at ¶¶ 24, 27.)
MasterCard has moved to dismiss plaintiff’s Third Amended
Complaint under Federal Rule of Civil Procedure 12(b)(6), arguing
that the Complaint fails to allege that MasterCard was a “sender”
of the offending faxes as defined by the TCPA, or that it directed
or approved the transmissions.
MasterCard also argues under
Federal Rule of Civil Procedure 8 that the Third Amended Complaint
lacks
the
“who,
what,
when,
where”
regarding
any
purported
agreement with the other defendants so that MasterCard may form a
response, and that plaintiffs have improperly grouped defendants
together making it difficult for MasterCard to properly respond to
specific allegations against it.
II.
- 3 -
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2).
This obligation “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
do.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citation omitted).
To survive dismissal, the factual allegations
must be “plausible” and “must be enough to raise a right to relief
above the speculative level.”
Id. at 555.
See also Edwards v.
Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
“more
than
an
accusation.”
unadorned,
Ashcroft
v.
This requires
the-defendant-unlawfully-harmed-me
Iqbal,
556
U.S.
662,
678
(2009)
(citations omitted).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take
them in the light most favorable to plaintiff, Erickson v. Pardus,
551 U.S. 89 (2007), but “[l]egal conclusions without adequate
factual support are entitled to no assumption of truth.”
v.
Berzain,
omitted).
654
F.3d
1148,
1153
(11th
Cir.
2011)
Mamani
(citations
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678.
“Factual allegations that are merely
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consistent
with
a
defendant’s
facially plausible.”
liability
fall
short
of
being
Chaparro v. Carnival Corp., 693 F.3d 1333,
1337 (11th Cir. 2012) (internal citations omitted).
Thus, the
Court engages in a two-step approach: “When there are well-pleaded
factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to
relief.”
Iqbal, 556 U.S. at 679.
III.
A. Whether the Complaint Adequately States a Claim Against
MasterCard
The TCPA makes it “unlawful for any person . . . to use any
telephone facsimile machine, computer, or other device to send, to
a
telephone
facsimile
machine,
an
unsolicited
advertisement”
unless there exists an “established business relationship” between
the “sender” and the recipient meeting certain criteria.
U.S.C. § 227(b)(1)(C).
what
it
means
to
47
Although the Act does not further define
“send”
a
fax,
the
Federal
Communications
Commission’s (FCC) 2006 regulations regarding the restrictions on
facsimile advertising (the 2006 Regulations) define the “sender”
of a fax as any “person or entity on whose behalf a facsimile
unsolicited advertisement is sent or whose goods or services are
- 5 -
advertised or promoted in the unsolicited advertisement.” 2
C.F.R. § 64.1200(f)(10) (emphasis added).
47
In other words, the
FCC’s current view is that one whose goods or services are promoted
in the unsolicited fax may be held strictly liable under the TCPA
for its transmission, even absent a showing that the fax was sent
on its behalf.
__
F. Supp. 3d
JWD Automotive, Inc. v. DJM Advisory Group LLC,
, 2016 WL 6835986, at *5 (M.D. Fla. Nov. 21,
2016).
The faxes at issue here include a picture of the DoctorsClub
credit card bearing the MasterCard logo, and state, “Be the first
to Pre-Order the Exclusive DoctorsClub World Elite Mastercard!” 3
(Docs. ## 55-1 - 55-3.)
Accordingly, at least pursuant to the
2006 Regulations, the Third Amended Complaint adequately alleges
that MasterCard “sent” the Fax, so as to state a claim of strict
direct-sender liability under the TCPA against it.
See Supply Pro
Sorbents, LLC v. Ringcentral, Inc., No. C 16–02113 JSW, 2016 WL
5870111, at *4 (N.D. Cal. Oct. 7, 2016) (inclusion of defendant’s
2
The FCC is the entity tasked with “prescrib[ing] regulations
to implement” the TCPA. Murphy v. DCI Biologicals Orlando, LLC,
797 F.3d 1302, 1305 (11th Cir. 2015) (quoting 47 U.S.C. §
227(b)(2)).
3
“A district court can generally consider exhibits attached
to a complaint in ruling on a motion to dismiss....” Hoefling v.
City of Miami, 811 F.3d 1271, 1277 (11th Cir. 2016).
- 6 -
name and website at the bottom of a fax promoted defendant’s
services and thus was “sufficient to permit Defendant to fall
with[in] the statutory definition of sender”).
Nevertheless,
MasterCard argues that the Third Amended Complaint does not allege
specific facts supporting the conclusory assertion that the faxes
were sent on their behalf.
In this regard, MasterCard argues that
in order to adequately plead that the faxes were sent on their
behalf, the Court must apply certain factors recognized by the
Sixth Circuit in Siding & Insulation Co. v. Alco Vending, Inc.,
822 F.3d 886, 892–95 (6th Cir. 2016) 4 (citing Palm Beach Golf
Center–Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245
(11th Cir. 2015)).
(Docs. #65 at 7; #77, ¶ 11.)
4
In Alco Vending, the Sixth Circuit recognized that the
phrase “on-whose-behalf” has been treated a as a term of art that
blends the following factors:
the degree of input and control over the content of the
fax(es), the actual content of the fax(es), contractual
or expressly stated limitations and scope of control
between the parties, privity of the parties involved,
approval of the final draft of the fax(es) and its
transmission(s), method and structure of payment,
overall awareness of the circumstances (including access
to and control over facsimile lists and transmission
information), and the existence of measures taken to
ensure compliance and/or to cure non-compliance with the
TCPA.
822 F.3d at 899.
- 7 -
While Palm Beach did apply an “on behalf of” theory of directsender liability, that case involved a fax transmitted in 2005,
prior to the promulgation of the FCC’s 2006 Regulations.
at 1254 n. 9, 1257–58.
781 F.3d
It is, therefore, fair to read Palm Beach
as refusing retroactive application of the 2006 Regulations, not
as rejecting the FCC’s current “strict” view of direct-sender
liability under the TCPA for faxes sent after the 2006 Regulations
took effect.
See Arkin v. Innocutis Holdings, LLC, No. 8:16–CV–
0321–T–27TBM,
F. Supp. 3d
, 2016 WL 3042483, at *5 (M.D.
Fla. May 26, 2016) (defendant’s reliance on Palm Beach to determine
whether the complaint properly alleged direct-sender liability for
a fax sent in 2015 was “misplaced”).
Because the Eleventh Circuit has not expressly rejected the
strict
definition
of
“sender”
articulated
in
the
FCC’s
2006
Regulations, and because the junk fax plaintiffs received were
allegedly sent sometime beginning in December of 2015 (Doc. #55,
¶¶ 15-17), this Court will apply the 2006 Regulation definition
and declines MasterCard’s invitation to scrutinize plaintiffs’
pleading under the “on-whose-behalf” standard and factors set
forth in Alco Vending.
to
apply
the
FCC’s
As the Court recently recognized, to refuse
strict-liability
definition
would
likely
violate the Hobbs Act, 28 U.S.C. § 2342, which grants the circuit
- 8 -
courts
of
appeals
exclusive
jurisdiction
over
challenges
to
administrative agencies’ interpretation of statutory language.
JWD Automotive, 2016 WL 6835986, at *4 (citing Sliwa v. Bright
House Networks, LLC, No. 2:16–CV–235–FTM–29MRM, 2016 WL 3901378,
at *4 (M.D. Fla. July 19, 2016) (“[T]his court, like all district
courts, ‘lacks jurisdiction under the Hobbs Act to consider the
argument
(internal
that
the
FCC
alterations
incorrectly
omitted)
interpreted
(quoting
Murphy,
[the
797
TCPA].”
F.3d
at
1305)); Imhoff Inv., L.L.C. v. Alfoccino, Inc., 792 F.3d 627, 637
(6th Cir. 2015) (observing that a direct challenge at the district
court level to “the legitimacy of the FCC’s definition of sender
in [Section] 64.1200(f)(10) [is un]likely to be viable because the
Hobbs Act confers jurisdiction on Courts of Appeal to review FCC
regulations only by direct appeal from the FCC”); Chhetri v. United
States, 823 F.3d 577, 586–87 (11th Cir. 2016) (affirming the
district court’s conclusion that it lacked jurisdiction under the
Hobbs Act to review the validity of a regulation promulgated by a
federal agency); CE Design, Ltd. v. Prism Bus. Media, Inc., 606
F.3d 443, 449 (7th Cir. 2010) (“[T]he Hobbs Act prevents the
district court from reviewing the validity of FCC regulations.”).
- 9 -
Because plaintiffs have adequately alleged a theory of strict
liability against MasterCard as a “sender” of the junk faxes, the
Court denies its request for dismissal under Rule 12(b)(6).
B. Whether the Complaint Complies with Rule 8
Lastly,
Complaint
MasterCard
runs
allegations
afoul
against
argues
of
Rule
defendants
that
8
by
plaintiffs’
improperly
together,
lacking
Third
Amended
lumping
the
their
specific
roles and terms of any purported agreements between the defendants.
The Court disagrees.
true,
plaintiffs
After taking all plaintiffs’ allegations as
have
sufficiently
pled
allegations
against
MasterCard and its purported role in the transmission of junk faxes
such that MasterCard may form a response.
(Doc. #55, ¶ 13.)
Accordingly, it is hereby
ORDERED AND ADJUDGED:
Defendant MasterCard International Incorporated’s Motion to
Dismiss (Doc. #65) is DENIED.
DONE and ORDERED at Fort Myers, Florida, this
of January, 2017.
Copies:
Counsel of Record
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11th
day
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