Sandusky Wellness Center, LLC v. Medtox Scientific, Inc. et al
Filing
25
ORDER denying 3 plaintiff's Motion to Certify Class; denying 15 defendants' Motion to Dismiss (Written Opinion). Signed by Senior Judge David S. Doty on 3/12/2013. (PJM)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 12-2066(DSD/SER)
Sandusky Wellness Center LLC,
a Ohio limited liability company,
individually and as the
representative of a class of
similarly-situated persons,
Plaintiff,
ORDER
v.
Medtox Scientific, Inc.,
Medtox Laboratories, Inc. and
John Does 1-10,
Defendants.
Garrett D. Blanchfield, Jr., Esq. and Reinhardt, Wendorf
& Blanchfield, 332 Minnesota Street, Suite E-1250, St.
Paul, MN 55101 and Brian Wanca, Esq., Ryan M. Kelly, Esq.
and Anderson and Wanca, 3701 Algonquin Road, Suite 760,
Rolling Meadows, IL 60008, counsel for plaintiff.
Jeffrey R. Mulder, Esq. and Lewis A. Remele, Jr., Esq.
and Bassford Remele, PA, 33 South Sixth Street, Suite
3800, Minneapolis, MN 55402 and Geoffrey W. Castello,
Esq., Robert I. Steiner, Esq. and Kelley, Drye & Warren
LLP, 101 Park Avenue, New York, NY 10178, counsel for
defendants.
This matter is before the court upon the motion to dismiss by
defendants Medtox Scientific, Inc. and Medtox Laboratories, Inc.
(collectively, Medtox).
Based on a review of the file, record and
proceedings herein, and for the following reasons, the motion is
denied.
BACKGROUND
This dispute arises from an unsolicited facsimile sent to
plaintiff Sandusky Wellness Center, LLC (Sandusky) by Medtox.
On
February 21, 2012, Medtox sent Sandusky a fax via a telephone
facsimile machine.
facsimile
Compl. ¶ 11.1
“constitutes
material
[Medtox’s] work or operations.”
Sandusky asserts that the
furnished
Id. ¶ 13.
solicit or give permission for the facsimile.
in
connection
with
Sandusky did not
Id. ¶ 14.
Sandusky
alleges that Medtox sent the facsimile to at least thirty-nine
other recipients.
Id. ¶ 17.2
On August 23, 2012, Sandusky filed a class-action complaint,
alleging a violation of the Telephone Consumer Protection Act
(TCPA).
One day later, Sandusky also filed a motion for class
certification.
On October 15, 2012, Medtox moved to dismiss the
class-action complaint.
1
Medtox argues that Sandusky has not alleged that the message
was received by a facsimile machine. The complaint states that
“defendants transmitted by telephone facsimile machine an
unsolicited fax to plaintiff.”
Compl. ¶ 11.
Construing this
allegation in a light most favorable to Sandusky, the court finds
the allegation sufficient to survive a motion to dismiss.
2
The
seventeen.
complaint contains two paragraphs with the number
This citation is to the first of those paragraphs.
2
DISCUSSION
I.
Motion to Dismiss
To survive a motion to dismiss for failure to state a claim,
“‘a complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.’”
Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009)
(quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)).
“A
claim has facial plausibility when the plaintiff [has pleaded]
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Iqbal, 129 S. Ct. at 1949 (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 556 (2007)).
Although a complaint need not contain
detailed factual allegations, it must raise a right to relief above
the speculative level.
See Twombly, 550 U.S. at 555.
“[L]abels
and conclusions or a formulaic recitation of the elements of a
cause of action are not sufficient to state a claim.”
Iqbal, 129
S. Ct. at 1949 (citation and internal quotation marks omitted).
Medtox seeks dismissal of the class allegations contained
within the complaint.
Specifically, Medtox argues that “the class
action allegations should be dismissed because as a matter of law,
[Sandusky’s] cause of action under the TCPA is not suitable for
class treatment.”
Def.’s Mem Supp. 5.
In support, Medtox argues
that Congress requires TCPA violations to be brought as individual
actions.
Moreover, Medtox argues that liability will have to be
3
determined on a case-by-case basis, with the court having to
undertake mini-trials to determine whether each facsimile was
unsolicited and if the message was sent to a facsimile machine or
a computer.
As an initial matter, the court notes that nothing in the TCPA
limits the statute’s applicability to individual actions. Congress
authorized a statutory penalty of $500.00 for each TCPA violation,
but this fact does not preclude class certification. See 47 U.S.C.
§ 227(b)(3); see also Mims v. Arrow Fin. Servs., LLC, 132 S. Ct.
740, 753 (2012) (acknowledging, in dicta, that numerous TCPA cases
are filed as class actions). Although this individual recovery for
$500.00 per violation may ultimately exceed the pro rata share
available to each putative class member - thereby making class
certification improper - such a determination can only be made
after the benefit of discovery and briefing.
As to the issue of determining liability on a case-by-case
basis, the court is unpersuaded that no set of circumstances could
lead to class certification.
For example, discovery could show
that Medtox purchased a list of facsimile numbers from a thirdparty vendor and that no consent was present.
Moreover, striking
the class allegations at this stage in the proceedings would
effectively preclude class certification in future TCPA actions.
Other jurisdictions have declined to reach such a conclusion. See,
e.g., Siding & Insulation Co. v. Beachwood Hair Clinic, Inc., 279
4
F.R.D. 442, 446 (N.D. Ohio 2012) (certifying class in TCPA action);
Exclusively Cats Veterinary Hosp. v. Anesthetic Vaporizer Servs.,
Inc., No. 10-10620, 2010 WL 5439737, at *6 (E.D. Mich. Dec. 27,
2010) (same); Hinman v. M & M Rental Ctr., Inc., 545 F. Supp. 2d
802, 806-07 (N.D. Ill. 2008) (same).
But see Local Baking Prods.,
Inc. v. Kosher Bagel Munch, Inc., 23 A.3d 469, 476 (N.J. Super. Ct.
App. Div. 2011) (determining that class action “is not a superior
means of adjudicating a TCPA suit”).
Although the court is
uncertain as to whether class certification will ultimately be
proper, such a determination can only be made after discovery and
briefing.
II.
Therefore, the motion to dismiss is denied.
Motion for Class Certification
One day after filing the class-action complaint, Sandusky
filed a motion for class certification.
In determining whether
class certification is proper, the court must make “a limited
preliminary inquiry, looking behind the pleadings.”
Blades v.
Monsanto Co., 400 F.3d 562, 566 (8th Cir. 2005) (citation omitted).
At this stage in the proceedings, no discovery has taken place, and
it appears the motion for class certification was filed merely as
a placeholder.3
In other words, the motion is untimely, as it is
3
The court presumes that the motion for class certification
was filed out of fear that Medtox would attempt to moot the action
with a Rule 68 offer. See Holstein v. City of Chi., 29 F.3d 1145,
1147 (7th Cir. 1994) (explaining that offer of full compensation
made to individual plaintiff moots action if motion for class
certification has not been filed). In the District of Minnesota,
(continued...)
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entirely unclear whether a request for class certification will
eventually be warranted.
Therefore, the motion is denied without
prejudice.
CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that:
1.
Defendants’ motion to dismiss [ECF No. 15] is denied; and
2.
Plaintiff’s motion to certify the class [ECF No. 3] is
denied without prejudice.
Dated:
March 12, 2013
s/David S. Doty
David S. Doty, Judge
United States District Court
3
(...continued)
however, the question of mootness does not “turn on whether a Rule
68 offer is made before or after the putative class representative
moves to certify the class,” or even if a motion for class
certification has been filed. See Harris v. Messerli & Kramer,
P.A., No. 06-CV-4961, 2008 WL 508923, at *3 (D. Minn. Jan. 2,
2008); see also Janik v. Cavalry Portfolio Servs., LLC, No. 063104, 2007 WL 1994026, at *4 (D. Minn. July 3, 2007) (same).
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