Wendell H. Stone Company, Inc. v. Chesapeake Plywood, LLC

Filing 27

MEMORANDUM AND ORDER denying 21 Defendant's Motion to Dismiss; directing Defendant to file Answer; and directing Plaintiff to arrange a case planning telephone conference. Signed by Judge Marvin J. Garbis on 4/28/2017. (bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
WENDELL H. STONE COMPANY, INC.
d/b/a STONE & COMPANY
Plaintiff
vs.
CHESAPEAKE PLYWOOD, LLC.

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CIVIL ACTION NO. MJG-16-2821

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Defendant
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MEMORANDUM AND ORDER RE: MOTION TO DISMISS

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The Court has before it Defendant’s Motion to Dismiss [ECF
No. 21] and the materials submitted related thereto. The Court
finds no need for a hearing.

I.

BACKGROUND
Plaintiff Wendell H. Stone Company is a concrete and

construction supply business.

Plaintiff alleges that at a time

relevant hereto,1 it received an unsolicited fax from Defendant
Chesapeake Plywood, LLC, a seller of wood products.

On

August 10, 2016, Plaintiff filed the Class Action Complaint [ECF
No. 1] alleging violation of the Telephone Consumer Protection

1

The Amended Class Action Complaint does not specify the
date of receipt, but Defendant presents no contention based upon
the date of the alleged fax.

Act (“TCPA”), as amended by the Junk Fax Prevention Act of 2005,
47 U.S.C. § 227.

On August 23, 2016, Plaintiff filed the

pending Amended Class Action Complaint [ECF No. 3] (“ACAC”).
By the instant motion, Defendants seek dismissal of all
claims due to the absence of subject matter jurisdiction,
contending that Plaintiff lacks standing to sue.

II.

LEGAL PRINCIPLES
A.

Rule 12(b)(1)

A motion to dismiss under Rule 12(b)(1) presents the
question of whether this Court has jurisdiction to adjudicate
the claims presented.
The Plaintiff has the burden of proving that subject matter
jurisdiction exists.

Richmond, Fredericksburg & Potomac R.R.

Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).

B.

The Cause of Action

The Telephone Consumer Protection Act provides, in
pertinent part:
It shall be unlawful for any person
within the United States . . . to use any .
. . device to send, to a telephone facsimile
machine, an unsolicited advertisement,
unless [certain exceptions apply].
47 U.S.C. § 227(b)(1)(C).

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The recipient of a fax sent in violation of this provision
may file “an action to recover for actual monetary loss from
such a violation, or to receive $500 in damages for each such
violation, whichever is greater.” 47 U.S.C. § 227(b)(3)(B).2
Plaintiff alleges that Defendant sent a fax in violation of
47 U.S.C. § 227(b)(1)(C).

Plaintiff alleges, as to the loss

caused by Defendant’s action, that it suffered:


Loss of the paper and ink used to print the
fax,



Loss of fax machine availability while
receiving the unwanted fax,



Loss of time reading the fax, and



Wear and tear on the fax machine.3

2

The recovery may be trebled for a willful or knowing
violation. 47 U.S.C. § 227(b)(3).
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Specifically, Plaintiff states that receiving the
Defendant’s fax caused it, as the recipient, “to lose paper and
toner consumed in the printing of the Defendant’s faxes.
Moreover, the Defendant’s faxes used the Plaintiff’s fax
machine. The Defendant’s faxes cost the Plaintiff time, as the
Plaintiff and its employees wasted their time receiving,
reviewing and routing the Defendant’s unauthorized
faxes. That time otherwise would have been spent on the
Plaintiff’s business activities. The Defendant’s faxes
unlawfully invaded the Plaintiff’s . . . privacy interests
in being left alone.” ACAC ¶ 32, 36, ECF No. 3.

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C.

Standing

Defendant contends that because the alleged loss sustained
by Plaintiff is de minimus, Plaintiff lacks the standing
required by Article III of the United States Constitution.
To have Article III standing, a plaintiff “must have (1)
suffered 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, --- U.S. ----, 136 S. Ct. 1540, 1547 (2016) as revised
(May 24, 2016) (quoting Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992)).
To suffer an injury in fact, the plaintiff must have
suffered “‘an invasion of a legally protected interest’ that is
‘concrete and particularized’ and ‘actual or imminent, not
conjectural or hypothetical.’” Id. at 1548 (quoting Lujan, 504
U.S. at 560).

The Spokeo court stated that to constitute a

concrete injury, an injury “must be ‘de facto’; that is, it must
actually exist. . . [that is]‘real,’ and not ‘abstract.’” Id.

III. DISCUSSION
A.

STANDING

As discussed above, pursuant to Spokeo, to have Article III
standing, Plaintiff must have:

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1.

Suffered an injury in fact, that is

2.

fairly traceable to the challenged
conduct of the defendant, and

3.

that is likely to be redressed by a
favorable judicial decision.

136 S. Ct. at 1547.

1.

Injury in Fact

The question presented is whether Plaintiff has suffered an
injury in fact providing Article III standing by virtue of the
receipt of a single one-page fax.4
Plaintiff does not allege any damages or loss other than
that which would be the inevitable consequence of such a fax,
i.e., the use of a single sheet of paper, the ink used to print
the content, the “wear and tear” on the fax machine resulting
from the processing of one sheet of paper, etc.

There is no

allegation that the receipt of the single fax at issue caused
any consequential damage.

In brief, it appears that Plaintiff’s

alleged injury would amount to no more than a small fraction of
one cent.

Nevertheless, it appears that the alleged injury will

suffice to provide Plaintiff with Article III standing.
The United States Court of Appeals for the Fourth Circuit
has not addressed the issue here presented in the context of a
4

Exhibit A to the ACAC appears to represent a single page
fax communication.

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TCPA fax claim.

However, in

Resource Bankshares Corp. v. St.

Paul Mercury Ins. Co., 407 F.3d 631, 639 (4th Cir. 2005), the
Fourth Circuit decided – for insurance coverage purposes - that
a claim against an insured for sending a fax in violation of the
TCPA was a covered claim for “property damage.”

The Resource

court stated that the receipt of a fax “occasions the very
property damage the TCPA was written to address: depletion of
the recipient’s time, toner, and paper, and occupation of the
fax machine and phone line.” Id.

The Resource court stated that

it “fully” agreed with a Seventh Circuit statement that:
junk faxes use up the recipient’s ink and
paper, but senders anticipate that
consequence. Senders may be uncertain
whether particular faxes violate §
227(b)(1)(C) but all senders know exactly
how faxes deplete recipients’ consumables .
. . .
Resource, 407 F. 3d at 639 (quoting Am. States Ins. Co. v.
Capital Assocs. of Jackson Cty., Inc., 392 F.3d 939, 943 (7th
Cir. 2004)).
In Palm Beach Golf Center-Boca, Inc. v. John G. Sarris,
D.D.S., P.A., 781 F.3d 1245 (11th Cir. 2015), the Eleventh
Circuit held that the plaintiff in a TCPA case had Article III
standing because “it has suffered a concrete and personalized
injury in the form of the occupation of its fax machine for the
period of time required for the electronic transmission of the

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data (which, in this case, was one minute).” Id. at 1251. The
Palm Beach court stated, “the occupation of Plaintiff’s fax
machine is among the injuries intended to be prevented by the
statute and is sufficiently personal and particularized to Palm
Beach Golf as to provide standing.” Id. at 1252; see also Falley
v. Drug Depot, 204 F. Supp. 3d 1008, 1011 (N.D. Ill. 2016)
(concluding that an allegation of loss of paper and toner, use
of the telephone line and fax machine while receiving the fax,
and loss of time, suffices to provide standing, even though the
actual amount of the loss is de minimus).
In light of the current precedential climate, the Court
concludes that the Fourth Circuit will, when faced with the
issue, decide that Plaintiff’s allegations are sufficient to
provide Article III standing.

Therefore, the Court shall not

dismiss the ACAC.

2.

Fairly Traceable to Defendant’s Conduct

The ACAC alleges Plaintiff’s injury – such as it is - is
“fairly traceable” to receipt of the fax at issue.
Ex. A, ECF No. 3.

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ACAC ¶ 10,

3.

Likely to Be Redressed

There appears to be no doubt that a recovery of at least
$500.00 would provide redress for Plaintiff’s injury.

ACAC ¶ 6,

ECF No. 3.

B.

Additional Matters

Defendant contends that the ACAC does not adequately plead
that the flyer attached as Exhibit A in Plaintiff’s ACAC was in
fact faxed to Plaintiff. Mot. Mem. at 2, ECF No. 21-1.

This

contention, presumably based upon Rule 12(b)(6), is not within
the scope of the instant Rule 12(b)(1) motion.

If there is, in

fact, an issue regarding whether Plaintiff received a fax as
alleged, that issue can be raised in due course.
As stated in the ACAC, Plaintiff seeks to have the Court
certify a Plaintiff class consisting of
All persons who (1) on or after four years
prior to the filing of this action, (2)
were sent, by Defendant or on Defendant’s
behalf a telephone facsimile message
substantially similar to Exhibit A, (3) from
whom Defendant claims it obtained prior
express permission or invitation to send
those faxes in the same manner as Defendant
claims it obtained prior express permission
or invitation to send a fax the Plaintiff
[sic].
ACAC ¶ 18, ECF No. 3.

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The Court is not herein addressing any issues relating to
class certification.

IV.

CONCLUSION
For the foregoing reasons:
1.

Defendant’s Motion to Dismiss [ECF No.
21] is DENIED.

2.

Defendant shall file its Answer by May 19, 2017.

3.

Plaintiff shall arrange a case planning telephone
conference to be held by June 2, 2017.

SO ORDERED, this Friday, April 28, 2017.

/s/__________
Marvin J. Garbis
United States District Judge

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