Gorss Motels, Inc. v. Safemark Systems, LP et al

Filing 39

ORDER denying 24 motion to dismiss. Signed by Judge Gregory A. Presnell on 1/5/2017. (ED)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
GORSS MOTELS, INC.,
Plaintiff,
v.

Case No: 6:16-cv-1638-Orl-31DCI

SAFEMARK SYSTEMS, LP and JOHN
DOES 1-5,
Defendants.

ORDER
This matter comes before the Court without a hearing on the Motion to Dismiss (Doc. 24)
filed by Defendant Safemark Systems, LP (“Safemark”), the response in opposition (Doc. 33)
filed by the Plaintiff, Gorss Motels, Inc. (“Gorss”), and the reply (Doc. 38) filed by Safemark.
Gorss filed the instant suit, a putative class action, on September 16, 2016. Gorss alleged
that Safemark and five John Doe defendants violated the Telephone Consumer Protection Act of
1991, as amended by the Junk Fax Prevention Act of 2005, 47 USC § 227, by sending it an
unsolicited facsimile advertisement on September 4, 2013. (Doc. 1 at 1-2). Gorss Motels also
asserted that the fax at issue did not include an opt-out notice, as required by the statute. (Doc. 1
at 4).
Safemark contends that Gorss lacks standing to pursue the instant claim. Standing is a
doctrine that limits the category of litigants empowered to maintain a lawsuit in federal court to
seek redress for a legal wrong. See Valley Forge Christian College v. Americans United for
Separation of Church and State, Inc., 454 U.S. 464, 473 (1982). The “irreducible constitutional
minimum” of standing consists of three elements: the plaintiff must have suffered (1) an injury in

fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to
be redressed by a favorable judicial decision. Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547
(2016). The plaintiff bears the burden of establishing standing; at the pleading stage, the plaintiff
is obligated to clearly allege facts demonstrating each element. Id.
It is the first of these three elements that is disputed here: Safemark contends that Gorss
has not properly alleged that it suffered an injury in fact. More particularly, Safemark argues that,
in Spokeo, the United States Supreme Court held that a plaintiff cannot establish standing based
solely on an alleged violation of a statute, which is all that Gorss is asserting in the instant case.
(Doc. 24 at 5). Safemark is wrong on both points.
In Spokeo – a Fair Credit Reporting Act case – the plaintiff contended that the defendant
had misreported information relevant to his creditworthiness, but he did not allege that he had
suffered any other harm, such as being turned down for a loan. Spokeo at 1546. After the Court
of Appeals found that the plaintiff had suffered an injury in fact and therefore had standing to
bring suit, the Supreme Court vacated the decision and sent the case back for further
consideration. Id. at 1545. In doing so, the Supreme Court reaffirmed numerous previous
decisions holding that an “injury in fact” must be both concrete and particularized, id. at 1548
(citing cases), but it did not hold that an alleged statutory violation, by itself, could not constitute
such an injury. To the contrary, the Supreme Court noted that, in certain instances, “the violation
of a procedural right granted by statute can be sufficient … to constitute injury in fact.” Id. at
1549.
Moreover, Gorss is complaining of more than just a procedural violation of the TCPA
here. Gorss has alleged that it suffered tangible losses of paper and toner as a result of receiving
the unsolicited fax, as well as having its phone line and fax machine tied up, and wasting time

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receiving, reviewing, and routing the fax. (Doc. 1 at 12-13). Safemark attempts to dismiss these
alleged harms as “de minimis,” but cites no case law establishing a minimum threshold that must
be cleared before a tangible harm can be considered for purposes of standing. Accordingly, the
Court finds that Gorss has sufficiently alleged an injury in fact and therefore possesses standing to
bring its TCPA claim.
In the alternative, Safemark seeks a stay of the instant case while it pursues relief before
the Federal Communications Commission in the form of a retroactive waiver of the requirement
that it include an opt-out notice in its faxes. Safemark contends that if it were to succeed in
obtaining the waiver, a substantial portion of the plaintiff’s putative class would be eliminated.
Setting aside the question of whether the waiver would actually accomplish this, or whether this
would be a legitimate basis for staying the instant proceedings, the Court notes that Safemark has
not alleged that the waiver would undermine Gorss’s cause of action here. As such, the Court
sees no basis for making Gorss wait while the FCC matter is resolved.
Finally, Safemark challenges Gorss’s class allegations., arguing that its proposed class
cannot be certified. Such arguments should be raised in the context of a motion for class
certification.
In consideration of the foregoing, it is hereby
ORDERED that the on the Motion to Dismiss (Doc. 24) is DENIED.
DONE and ORDERED in Chambers, Orlando, Florida on January 5, 2017.

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