St. Louis Heart Center, Inc. v. Nomax, Inc.

Filing 61

MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that Defendant Nomax, Inc.'s Motion to Strike and/or Dismiss (ECF No. 36 ) is DENIED without prejudice. IT IS FURTHER ORDERED that Defendant Nomax, Inc's Motion and Memorandum in Support of Mot ion to Quash Subpoena to Windstream Communications, LLC (ECF No. 48 ) and Defendant Nomax, Inc's Motion and Memorandum in Support of Motion to Quash Subpoena to Interfax US Inc. (ECF No. 56 ) are GRANTED. Windstream Communications, LLC and Interfax US Inc. shall produce records only related to Exhibits A-F to the Second Amended Complaint. IT IS FINALLY ORDERED that Plaintiffs Motion for Class Certification (ECF No. 7 ) is DENIED without prejudice. Plaintiff can refile its Motion for Class Certification after the appropriate discovery has been conducted. Signed by District Judge Ronnie L. White on 12/23/2015. (NEB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ST. LOUIS HEART CENTER, INC.,
individually and on behalf of all others
similarly-situated,
Plaintiff,
V.

NOMAX, INC., and JOHN DOES 1-10,
Defendants.

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Case No. 4:15CV517 RLW

MEMORANDUM AND ORDER
This matter is before the Court on Defendant Nomax, Inc. ' s Motion to Strike and/or
Dismiss (ECF No. 36), Defendant Nomax, Inc ' s Motion and Memorandum in Support of Motion
to Quash Subpoena to Windstream Communications, LLC (ECF No. 48), and Defendant Nomax,
Inc's Motion and Memorandum in Support of Motion to Quash Subpoena to Interfax US Inc. (ECF
No. 56). These matters are fully briefed and ready for disposition.

I.

Motion to Strike and/or Dismiss Plaintiff's Class Allegations

In this putative class action, Plaintiff alleges that Defendant violated the Telephone
Consumer Protection Act, 47 U.S.C. §227 ("TCPA"). In the Second Amended Complaint
("SAC"), Plaintiff alleges that Defendant violated the TCP A by transmitting certain facsimiles
("faxes") to Plaintiff and others without obtaining their prior express permission or invitation and
not displaying the proper opt out notice required by 47 C.F.R. §64.1200(a)(4). 1 In the Second
Amended Complaint, Plaintiff amends his class definition under the TCP A as follows:

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The SAC alleges that, between 2011 and 2014, Defendant sent six unsolicited facsimiles to
Plaintiff (SAC, if 11 ).

All persons or entities [that] sent facsimiles by or on behalf of Defendant from
February 6, 2011 to the present where the facsimile is substantially similar in form,
content, or purpose to Exhibits A-F.

Defendant maintains that this definition fails because it includes all persons who were sent the
facsimiles at issue, regardless of whether those persons would actually have a claim under the
TCPA. (ECF No. 37 at 1). Defendant maintains that Plaintiffs class definition includes all
persons sent facsimiles "regardless of invitation or permission" and that this class definition is
"impermissibly over-inclusive." (ECF No. 37 at 1-2). Defendant states that "only those persons
who received unsolicited advertisements without the required opt-out notice would have
standing-making Plaintiffs class definition unascertainable under Rule 23." (ECF No. 37 at 4).
Defendant maintains that the current class definition includes members that did not suffer any
damages and are without standing to bring this action.

(ECF No. 37 at 4-5).

Moreover,

Defendant avers that the class definition's inclusion of facsimiles "substantially similar in form,
content or purpose to Exhibits A-F" is overly vague and imprecise. (ECF No. 5-6). Defendant
moves to strike and/or dismiss Plaintiffs Amended Class Allegations pursuant to Fed. R. Civ. P.
12(b)(l), 12(b)(6), 12(f), and 23.
In response, Plaintiff argues that Defendant has left it with a "Catch-22". Defendant has
already objected to Plaintiffs prior class definition, which referred to whether the fax recipient
consented to the transmission. Plaintiff claims that Defendant has left Plaintiff (and the Court)
with the practical effect that no one can allege a TCP A class, which conflicts with the
"overwhelming judicial consensus" that class certification is normal in TCP A cases. (ECF No.
42 at 4) (citing Ira Holtzman, C.P.A. v. Turza, 728 F.3d 682, 684 (7th Cir. 2013)). Plaintiff
contends that prior express invitation or permission is a defense and the burden of proof rests on
the sender to prove consent. (ECF No. 42 at 5-6) (citing In the Matter of Rules & Regulations

Implementing the Tel. Consumer Prof. Act of 1991 Junk Fax Prevention Act of 2005, 21 F.C.C.

Red. 3787, 3788 (2006)). Therefore, Plaintiff maintains that such a defense need not be pleaded
as part of the class definition. (Id.). Plaintiff also notes that the Eighth Circuit views early
motions to strike, such as the one here, with disfavor. (ECF No. 42 at 4 (citing St. Louis Heart
Ctr., Inc. v. Forest Pharm., Inc., No. 4:12-CV-02224, 2013 WL 1076540, at *5, n.4 (E.D. Mo.

Mar. 13, 2013); Stanbury Law Firm, P.A. v. Internal Revenue Serv. , 221F.3d1059, 1063 (8th Cir.
2000)). Further, Plaintiff asserts that an established business relationship is not determinative of
whether there is a violation because the facsimiles do not include the required opt out notice.
(ECF No. 42 at 7-8 (citing 47 C.F. R. §64.1200(a)(4)(iv)). Finally, Plaintiff contends that any
argwnent that the proposed class definition is overly vague and imprecise is premature because
Plaintiff must be given an opportunity to conduct discovery regarding the "universe of similarly
non-compliant fax advertisements" in order to create a "definition referring to specific language in
the faxes." (ECF No. 42 at 8-9).
The Court will not dismiss or strike the class definition based upon overbreadth. The
Court agrees that such a ruling would leave a plaintiff in a "Catch 22" whereby no TCP A claim
would survive the pleading stage.

"An overbroad class can be shrunk to eliminate the

overbreadth; over-breadth is thus not a per se ground for dismissal." Johansen v. GVN Michigan,
Inc., No. 1:15-CV-00912, 2015 WL 3823036, at *1 (N.D. Ill. June 18, 2015). The Court finds

that, at this stage of the litigation, overbreadth is not a basis for striking or dismissing Plaintiff's
class definition, particularly because doing so would preclude bringing this action as a TCPA
claim. The Court agrees with Judge Posner that Plaintiff "pleaded a violation of the statute; he
didn't need to plead the affirmative defense of consent-the burden is on the defendant to plead
affirmative defenses." Johansen, 2015 WL 3823036, at *1. The Court further finds that the

proposed class definition is overly vague and imprecise, and the Court would not certify such a
class as it is currently defined. However, and as noted by Plaintiff, discovery has not yet
commenced and there is ample time for Plaintiff to refine the class definition to reflect the
discovery produced. Therefore, the Court denies Defendant's Motion to Strike and/or Dismiss at
this time.
II.

Motions to Quash Subpoenas

Federal Rule of Civil Procedure 26 provides "parties may obtain discovery regarding any
matter, not privileged, that is relevant to the claim or defense of any party." Fed. R. Civ. P.
26(b)(l). Relevant information "need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence." Id. "The rule vests the
district court with discretion to limit discovery if it determines, inter alia, the burden or expense of
the proposed discovery outweighs its likely benefit." Roberts v. Shawnee Mission Ford, Inc., 352
F.3d 358, 361 (8th Cir. 2003)(citing Fed. R. Civ. P. 26(b)(l)); see also Fed. R. Civ. P. 45(c)
(authorizing the court to ensure a party responsible for the issuance and service of a subpoena takes
reasonable steps to avoid imposing "undue burden or expense" on a person subject to a subpoena).

A. Motion to Quash Subpoena Served on Windstream Communications,
LLC

Plaintiff served a subpoena on Windstream Communications, LLC ("Windstream")
seeking all outgoing call detail records (CDRs) from Defendants' two fax lines for the period of
February 6, 2011 to the present.
Defendant seeks to quash this subpoena as overbroad and unduly burdensome for several
reasons. Defendant because (i) Defendant sent other faxes besides fax advertisements over the
two fax lines and CD Rs would not indicate the image sent, making the subpoena overly broad and
unduly burdensome; (ii) the subpoena requests confidential and proprietary information; (iii) the
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subpoena is not reasonably calculated to lead to the discovery of admissible evidence; and (iv)
Defendant has already produced records relating to the facsimile numbers to which the six fax
advertisements attached to the Second Amended Complaint were sent and, therefore, the
information sought in the subpoena is redundant and unnecessary. (ECF No. 48).
In response, Plaintiff argues that it should be allowed to conduct discovery regarding all
fax advertisements sent during the class period, not just the six attached to the Second Amended
Complaint as Exhibits A-F. (ECF No. 55 at 8-11 (citing Whiteamire Clinic, P.A., Inc. v. Quill
Corp:., No. 12 C 5490, 2013 WL 5348377, at *3 (N.D. Ill. Sept. 24, 2013) ("Quill may not deprive

plaintiff of discovery related to the class while Quill continues to oppose class certification").
Further, Plaintiff argues that Defendant has not satisfied its burden of demonstrating undue
hardship to Windstream in responding to the subpoena.

(ECF No. 55 at 12-13).

Finally,

Plaintiff notes that there is a protective order in place to sure the confidentially of Defendant's
information. (ECF No. 55 at 13-14).
The Court holds that Plaintiffs requested discovery is overbroad and unduly burdensome.
The Court finds that the proposed subpoena is overbroad in that it seeks the CDRs for all
facsimiles (not just facsimile advertisements) sent by Defendants over a four year period. (ECF
No. 57 at 2). Plaintiff cites to no cases that support such a broad subpoena. Further, the Court
holds that the subpoena is overbroad because it seeks facsimile records that are irrelevant to this
case. The Court believes that Plaintiffs subpoena would seek facsimile information that might
be relevant to other lawsuits, but not this case. The Court limits the subpoena to production of the
CDRs for the facsimiles that are attached to the Second Amended Complaint as Exhibits A-F.
B. Motion to Quash Subpoena to Interfax US Inc.

Plaintiff served a subpoena on non-party Interfax US Inc. ("Interfax"), who provided
assistance to Defendants in sending facsimiles beginning in March 2014. The subpoena sought
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all faxes sent by Interfax on behalf of Defendant during the class period of February 6, 2011 to the
present and all records that identify the targets of those faxes and whether those fax transmissions
were successful.
In Defendant's Motion to Quash, it argues that the subpoena to Interfax is overbroad and
unduly burdensome because it seeks information that does not relate to the faxes attached to the
Second Amended Complaint. Defendant also contends that it has already produced records
relating to the facsimile numbers to which the faxes were sent and, therefore, the subpoena is
redundant and unnecessary. (ECF No. 56).
In response, Plaintiff again maintains that all fax advertisements sent during the class
period are relevant because the Plaintiff seeks to certify a class for the four years preceding the
filling of the complaint. Plaintiff further contends that Defendant has failed to carry its burden of
demonstrating that there is an undue burden on Interfax to produce the documents. Finally,
Plaintiff argues that it should be allowed to obtain discovery regarding other facsimiles from other
sources because Defendant refuses to provide any documents except the six faxes attached to the
Second Amended Complaint. (ECF No. 58).
As previously discussed, the Court holds that Plaintiffs subpoena to Interfax is overly
broad and impermissibly expands the subject matter of this lawsuit. The Court limits the requests
to only the facsimiles at issue in this lawsuit, Exhibits A-F, and quashes the subpoena in all other
respects.
III.

Motion for Class Certification

As an additional matter, the Court will deny the currently pending motion for class
certification because the proposed class definition has been abandoned by Plaintiff. See ECF No.
7, ~3. Once the parties have conducted discovery and narrowed the class definition, Plaintiff may
refile its Motion for Class Certification.

Further, the Court understands Plaintiffs fear of
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"pick-off' motions and will not consider such a motion based upon this Court's denial of
Plaintiffs Motion for Class Certification at this time.
Accordingly,
IT IS HEREBY ORDERED that Defendant Nomax, Inc.'s Motion to Strike and/or
Dismiss (ECF No. 36) is DENIED without prejudice.
IT IS FURTHER ORDERED that Defendant Nomax, Inc's Motion and Memorandum in
Support of Motion to Quash Subpoena to Windstream Communications, LLC (ECF No. 48) and
Defendant Nomax, Inc ' s Motion and Memorandum in Support of Motion to Quash Subpoena to
Interfax US Inc. (ECF No. 56) are GRANTED . Windstream Communications, LLC and Interfax
US Inc. shall produce records only related to Exhibits A-F to the Second Amended Complaint.
IT IS FINALLY ORDERED that Plaintiffs Motion for Class Certification (ECF No. 7)
is DENIED without prejudice. Plaintiff can refile its Motion for Class Certification after the
appropriate discovery has been conducted.
Dated thi~ day of December, 2015 .

Y?~~

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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