Scoma Chiropractic, P.A. v. Jackson Hewitt Inc. et al
Filing
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ORDER denying 75 Defendant Jackson Hewitt Inc.'s Motion to Dismiss Second Amended Class Action Complaint. Defendants Astro Tax Services LLC and Naveen Mathur's Motion to Dismiss Second Amended Class Action Complaint 77 is DENIED. The discovery stay is lifted. The parties shall have up to and including December 29, 2017 to file an amended Case Management Report. Signed by Judge Sheri Polster Chappell on 12/11/2017. (LMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
SCOMA CHIROPRACTIC, P.A., a
Florida corporation, individually and as
the representative of a class of similarlysituated persons,
Plaintiff,
v.
Case No: 2:17-cv-24-FtM-38CM
JACKSON HEWITT INC., ASTRO
TAX SERVICES LLC, and NAVEEN
MATHUR,
Defendants.
/
OPINION AND ORDER1
This matter comes before the Court on Defendant Jackson Hewitt Inc.’s Motion to
Dismiss Second Amended Class Action Complaint (Doc. 75), to which Scoma timely filed
a Memorandum in Opposition (Doc. 86), Jackson Hewitt timely filed a Reply (Doc. 90),
and Scoma timely filed a Sur-Reply (Doc. 91); and Defendants Astro Tax Services LLC
and Naveen Mathur’s Motion to Dismiss Second Amended Class Action Complaint (Doc.
77), to which Scoma timely filed a Memorandum in Opposition (Doc. 87). The motions
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are now fully briefed and ripe for the Court’s review. For the following reasons, the
motions to dismiss are denied.
BACKGROUND
This is a junk fax case. Scoma sued on February 10, 2017, under the Telephone
Consumer Protection Act of 1991, as amended by the Junk Fax Prevention Act of 2005
(“TCPA”), 47 U.S.C. § 227. Scoma alleges that, on or about December 23, 2016,
Defendants transmitted by fax machine an unsolicited advertisement to Scoma. (Doc.
69). The fax consists of a one-page document describing a product of “Jackson Hewitt
Tax Services.” (Doc. 69-1 at 2). Scoma alleges that it had not given Defendants
permission or express invitation to send the fax, and that Defendants faxed the same and
other unsolicited facsimiles to it and others without the opt-out language and notice
required by 47 C.F.R. § 64.1200.
Following the first round of motions to dismiss, the Court granted the defendants’
motions, dismissed without prejudice the prior complaint, and instructed Scoma to file a
second amended complaint by August 14, 2017. (Doc. 63). Scoma’s Second Amended
Class Action Complaint (“SAC”) (Doc. 69) was timely filed.
LEGAL STANDARD
When reviewing a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), the Court must view the allegations in the light most favorable to the plaintiff and
accept the allegations of the complaint as true. Speaker v. U.S. Dep’t of Health & Human
Servs., 623 F.3d 1371, 1379 (11th Cir. 2010). To avoid dismissal, a complaint must
contain sufficient factual allegations to “state a claim to relief that is plausible on its face”
and “raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly,
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550 U.S. 544, 555, 570 (2007). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “While
a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide the grounds of his entitle[ment] to relief
requires more than labels and conclusions, and a formulaic recitation of the elements of
a cause of action will not do.” Twombly, 550 U.S. at 555 (alteration in original) (citations
and quotation marks omitted).
DISCUSSION
A. Violation of the TCPA
The SAC alleges that Defendants violated the TCPA, which prohibits using “any
telephone facsimile machine . . . to send, to a telephone facsimile machine, an unsolicited
advertisement” unless certain criteria are met, by sending the unsolicited fax on
December 23, 2016 to Scoma’s fax number. 47 U.S.C. § 227(b)(1)(C). To state a claim
for violation of the TCPA, a plaintiff must allege: (1) the fax is an advertisement; (2) the
fax was unsolicited; and (3) the defendant(s) sent the fax to a telephone facsimile machine
using a telephone facsimile machine, computer, or other device.
47 U.S.C. §
227(b)(1)(C).
In dismissing the prior complaint, the Court determined that Scoma’s allegations
satisfied the first and second elements by sufficiently alleging that the fax was an
advertisement and that the fax was unsolicited.
See Doc. 63 at 4; 47 U.S.C. §
227(b)(1)(C). The Court held that the complaint failed, however, to allege with specificity
which Defendant was the “sender” of the fax within the meaning of the TCPA because it
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improperly lumped the Defendants together; failed to identify and explain the relationship
between them; and failed to provide virtually any factual support. See Doc. 63 at 4-7.
Jackson Hewitt contends that the SAC fails to remedy the prior defects. It again
argues that the SAC fails to provide notice of wrongdoing, in violation of Federal Rule of
Civil Procedure 8, and fails to allege facts as to each Defendant that would establish
Jackson Hewitt’s liability. Astro Tax Services LLC (“Astro”) and Naveen Mathur make the
same arguments. By contrast, Scoma contends that the addition of more facts, a detailed
explanation of the relationship between the Defendants, and specific allegations as to
each Defendant have addressed the prior deficiencies. The Court agrees. For the same
reasons stated in the Court’s prior Order, the allegations in the SAC satisfy the first two
elements of a claim for violation of the TCPA. Accordingly, the Court turns its attention
to the third element.
A “sender” within the meaning of the TCPA is the “person or entity on whose behalf
a facsimile unsolicited advertisement is sent or whose goods or services are advertised
or promoted in the unsolicited advertisement.” 47 C.F.R. § 64.1200(f)(10). Here, the
SAC still contains allegations directed at “Defendants” collectively and generally. See
Doc. 69 ¶¶ 19, 21, 23, 25, 40. However, unlike the prior complaint, the SAC also contains
allegations specific to each Defendant, see Doc. 69 ¶¶ 17-18, and describes in detail the
relationship between the Defendants, supplemented by citations to the Franchise
Agreement attached to the SAC (Doc. 69 ¶¶ 11-18). According to Scoma, with support
from the Franchise Agreement, advertising was done by Astro Tax and Mathur on behalf
of Jackson Hewitt, and the advertisements featured Jackson Hewitt’s goods or services.
These allegations track what the statute defines as a “sender” and are enough to rise the
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possibility of relief above the speculative level. See, e.g., Bais Yaakov v. Varitronics,
LLC, Civil No. 14-5008 ADM/FLN, 2015 WL 1529279, at *5 (D. Minn. Apr. 3, 2015) (finding
similar “on whose behalf” allegations as to the sender of the fax, “contextualized and
colored by the Dealership Agreements” akin to the Franchise Agreement cited here, were
sufficiently plausible to satisfy pleading requirements); Vinny’s Landscaping, Inc. v.
United Auto Credit Corp., 207 F. Supp. 3d 746, 747, 753 (E.D. Mich. 2016) (court could
infer plausibility where, despite fax not mentioning two of the named defendants, the
plaintiff alleged the specific business relationship among the three defendants in addition
to general allegations regarding the conduct of “all defendants”).
The allegations in this case are also distinguishable from those in Arkin v. Innocutis
Holdings, LLC, 188 F. Supp. 3d 1304, 1310 (M.D. Fla. 2016), in which the court held that
allegations that a defendant received revenue from the product’s sale, without more, were
insufficient to state a plausible claim this defendant was a “sender” of the fax under the
TCPA, and Schwanke v. JB Med. Mgmt. Solutions, Inc., No. 5:16-cv-597-Oc-30PRL,
2017 WL 78727, at *4 (M.D. Fla. Jan. 9, 2017), in which the court dismissed similar TCPA
allegations for failing to state a claim where the complaint failed to differentiate between
the conduct of each defendant. Here, the additional factual allegations more closely align
this case with those cited by Scoma in which courts have found that the allegations
satisfied the plausibility standard and denied motions to dismiss. See, e.g., JWD Auto.,
Inc. v. DJM Advisory Grp. LLC, 218 F. Supp. 3d 1335, 1341 (M.D. Fla. Nov. 21, 2016)
(finding complaint sufficiently stated a claim where the fax at issue advertised the services
of the named underwriter defendants); Scoma Chiropractic, P.A. v. Dental Equities, LLC,
232 F. Supp. 3d 1201, 1203, 1206 (M.D. Fla. 2017) (rejecting similar “lumping” argument
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and finding that complaint adequately stated a claim against MasterCard where the fax
at issue advertised a MasterCard and complaint alleged that MasterCard “provided
substantial money . . . to market the card, and that MasterCard paid for, knew of, and
permitted the fax broadcasting at issue[.]”).
In particular, the Court finds persuasive a recent case from another division of this
court, Senior Care Group, Inc. v. Red Parrot Distribution, Inc., No. 8:17-cv-760-T-27TGW,
2017 WL 3288288 (M.D. Fla. Aug. 1, 2017), a TCPA case featuring the same plaintiffs’
attorneys as this case and a complaint with similar allegations. In Red Parrot, the court
denied the defendants’ motion to dismiss upon concluding that the complaint sufficiently
alleged defendants were “senders” of the fax at issue. There, the court noted that “[t]he
2008 Junk Fax Order also explains that the sender does not need to be the individual
who actually sent the fax, only that the sender is the benefitting party.” Id. at *2 (citing In
the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991
Junk Fax Prevention Act of 2005, 23 F.C.C. Rcd. 15059, 15065 n. 49 (2008)).
Within
that framework, the court determined that the plaintiff’s allegations that the fax was
unsolicited and “an advertisement prominently displaying Defendant’s name, the goods
and services that it purveys, and its contact information[,]” in addition to allegations that
the fax was “sent by or on behalf of the Defendants advertising products, goods and
services of the Defendants during the Class Period[,]” satisfied the statutory definition of
“sender” and its complaint survived dismissal. Id. Given the similarities between the
allegations in Red Parrot and here, the Court agrees with the reasoning of its colleague
and finds that, at this juncture, where it must accept all factual allegations as true and
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draw all reasonable inferences in favor of Scoma, the SAC is sufficient to survive the
motions to dismiss.
B. Class Allegations
Jackson Hewitt again argues that the class allegations do not comply with the
requirements of Rule 8 of the Federal Rules of Civil Procedure because they merely recite
portions of the TCPA and allege wrongdoing “upon information and belief” providing no
factual support. Scoma argues that specific facts regarding how many faxes were sent,
the dates they were sent, and the number of putative class members that received faxes
is information within the exclusive possession and control of Defendants, and thus will be
ascertained in discovery.
To satisfy Rule 8(a)(2), a complaint must give defendants fair notice of a plaintiff’s
claim and the grounds upon which it rests. Twombly, 550 U.S. at 555. While detailed
factual allegations are unnecessary, vague allegations of unlawful harm, without more,
are insufficient. Id.; Iqbal, 556 U.S. at 678 (Rule 8 “demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation”). Twombly’s plausibility standard does
not preclude pleading based on “information and belief”; however, the “belief” must be
“based on factual information that makes the inference of culpability plausible.” Daisy,
Inc. v. Pollo Operations, Inc., No. 2:14-cv-564-FtM-38CM, 2015 WL 1418607, at *5 (M.D.
Fla. Mar. 27, 2015) (citing Iqbal, 556 U.S. at 678). The Complaint’s allegations satisfy
this standard.
Here, although the SAC again pleads “on information and belief,” recites portions
of the statute, and contains allegations of years of unauthorized faxes sent to the putative
class members, it also includes additional allegations beyond the “bare bones” allegations
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of the prior complaint. In addressing that prior complaint, the Court noted: “To be clear,
the Court is not deciding the propriety of class certification at this stage. Rather, because
Scoma will be permitted to file a second amended complaint to address the deficiencies
. . ., the Court will also direct Scoma to include additional factual information to support
the basis for the proposed class, if available.” (Doc. 63 at 10).
Scoma has therefore complied with the Court’s directive. This is not the “rare case”
in which the propriety of class allegations is evident from the face of the pleadings and
thus ripe for resolution at the dismissal stage. Accordingly, the motions to dismiss are
denied as they pertain to the class allegations of the SAC. Any further challenges to the
class allegations may be raised in opposition to any properly-filed motion for class
certification.
Accordingly, it is now ORDERED:
1.
Defendant Jackson Hewitt Inc.'s Motion to Dismiss Second Amended Class
Action Complaint (Doc. 75) is DENIED.
2.
Defendants Astro Tax Services LLC and Naveen Mathur’s Motion to
Dismiss Second Amended Class Action Complaint (Doc. 77) is DENIED.
3.
The discovery stay is lifted.
4.
The parties shall have up to and including December 29, 2017 to file an
amended Case Management Report.
DONE and ORDERED in Fort Myers, Florida this 11th day of December, 2017.
Copies: All Parties of Record
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