St. Louis Heart Center, Inc. v. Vein Centers for Excellence, Inc.

Filing 121

MEMORANDUM OPINION. (See Full Opinion.) As I have concluded that the statutory damage amount of $500 applies to this single violation of the TCPA, I will enter judgment in favor of plaintiff St. Louis Heart Center, Inc. in that amount. A separate judgment consistent with this opinion will be entered today. Signed by District Judge Catherine D. Perry on 10/05/2017. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ST. LOUIS HEART CENTER, INC.,

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Plaintiff,
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vs.
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VEIN CENTERS FOR EXCELLENCE, )
INC.,
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Defendant.
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Case No. 4:12 CV 174 CDP

MEMORANDUM OPINION
This Telephone Consumer Protection Act case is before me for decision
after the parties waived a bench trial and submitted it to the court based on the
stipulations. For the reasons that follow, I conclude that plaintiff St. Louis Heart
Center, Inc. is entitled to $500 in statutory damages from defendant Vein Centers
for Excellence, Inc. I will therefore enter judgment in favor of plaintiff in that
amount.
Findings of Fact
This case involves the receipt of a single advertising facsimile received by
Plaintiff. Defendant purchased the telephone number of Plaintiff’s owner, Ronald
Weiss, from InfoUSA, and contracted with Westfax to have Westfax send Plaintiff
a fax. The fax at issue contained a toll-free telephone number, a local fax number,

and an email address by which the recipient could contact Defendant to opt out of
receiving future advertising faxes. Plaintiff did not attempt to opt out of receiving
future faxes, or otherwise contact Defendant to express that it did not consent to
receiving such faxes or to ask Defendant to cease sending faxes to Plaintiff.
Defendant complied with opt out requests when it received them, by contacting the
company that sent the fax and instructing it not to send any additional faxes to
those who opted out.
Plaintiff St. Louis Heart Center, Inc. brought Count I of this action as a
putative class action under the Telephone Consumer Protection Act, 47 U.S.C. §
227 (“TCPA”). The Court initially certified a class on Count I under Fed. R. Civ.
P. 23. While a class was certified, the Court denied summary judgment to both
parties on the class claims. The class was then decertified by the Court’s
Memorandum and Order dated July 5, 2017. ECF No. 109.
Defendant has agreed to concede its liability to Plaintiff St. Louis Heart
Center, Inc. for one violation of the TCPA under Count I. There are no other
counts still pending under the complaint. The Defendant does not concede the
applicable amount of damages. The parties leave to the Court the assessment of
damages.

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Defendant was not aware of the existence of the TCPA until this lawsuit was
filed. Neither Westfax nor InfoUSA told Defendant about the TCPA. Defendant
did not intend to violate the TCPA by contracting with Westfax to send a fax to
Plaintiff. Plaintiff concedes that its actual monetary loss from Defendant’s
violation of the TCPA does not exceed $500. Plaintiff concedes that Defendant’s
TCPA violation was not willful or knowing, such that statutory damages could be
trebled.
Conclusions of Law
Among other things, the TCPA prohibits the use of any telephone facsimile
machine to send to another telephone facsimile machine an unsolicited
advertisement. 47 U.S.C. § 227(b)(1)(C). A person or entity may bring a private
right of action for a violation of the TCPA, in which they may “recover for actual
monetary loss from such a violation, or [] receive $500 in damages for each such
violation, whichever is greater.” 47 U.S.C. § 227(b)(3)(B). In the case of a TCPA
violation that is “willfully or knowingly” done, “the court, may, in its discretion,
increase the amount of the award to an amount equal to not more than 3 times.” 47
U.S.C. § 227(b)(3)(C).
Defendant Vein Centers has conceded its liability to plaintiff Heart Center
for one violation of the TCPA and the only issue before the Court is the amount of
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damages. The parties have agreed that the single TCPA violation was not willful
or knowing, and that the actual monetary loss from the violation was less than
$500. As a result, based on a plain reading and application of the TCPA statute, I
find in favor of plaintiff St. Louis Heart Center, Inc. against defendant Vein
Centers for Excellence, Inc. in the amount of $500.
Conclusion
As I have concluded that the statutory damage amount of $500 applies to
this single violation of the TCPA, I will enter judgment in favor of plaintiff St.
Louis Heart Center, Inc. in that amount. A separate judgment consistent with this
opinion will be entered today.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 5th day of October, 2017.

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