St. Louis Heart Center, Inc. v. Nomax, Inc.
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant Nomax, Inc. 's Motion to Dismiss for Lack of Standing (ECF No. 90 ) is GRANTED. Plaintiff's claims are dismissed with prejudice. Signed by District Judge Ronnie L. White on 03/20/2017. (KCB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
ST. LOUIS HEART CENTER, INC.,
individually and on behalf of all others
No. 4:15-CV-517 RLW
MEMORANDUM AND ORDER
This matter comes before Defendant Nomax, Inc.'s Motion for Summary Judgment
(ECF No. 74) and Defendant Nomax, Inc.'s Motion to Dismiss for Lack of Standing (ECF No.
90). These matters are fully briefed and ready for disposition. Because the Motion to Dismiss is
dispositive, the Court only addresses that Motion and dismisses this action.
Plaintiff St. Louis Heart Center, Inc. ("SLHC") filed this putative class action in Missouri
state court under the Telephone Consumer Protection Act of 1991 ("TCP A"), alleging Defendant
Nomax, Inc. ("Nomax") sent SLHC and a class of others fax advertisements that failed to
comply with the regulations prescribed under the TCPA by the Federal Communications
Commission (FCC). This action was removed to federal court on March 24, 2015.
In the Third Amended Complaint (ECF No. 72, "TAC"), SLHC purports to allege a
putative class action with a single claim against Nomax for a violation of the TCPA, 47 U.S.C.
§227. SLHC alleges that Nomax sent SLHC (and a class of others) twelve fax advertisements
during the class period, each advertising the product "Effer-K." (TAC,
The TAC alleges
that the twelve fax advertisements "do not contain a notice compl[ia]nt with 47 C.F.R.
§64.1200," which requires that all fax advertisements, even those sent with "prior express
invitation or permission," contain opt-out notice "inform[ing] the recipient of the ability and
means to avoid future advertisements." (TAC, ~17) .
MOTION TO DISMISS
A. Standard for Motion to Dismiss for Lack of Standing
"Article III standing represents ' perhaps the most important' of all jurisdictional
requirements." Gray v. City of Valley Park, Mo., 567 F.3d 976, 983 (8th Cir. 2009 (quoting
FWIPBS, Inc. v. City of Dallas, 493 U.S . 215, 231 (1990)). This doctrine "requires federal courts
to satisfy themselves that the plaintiff has alleged such a personal stake in the outcome of the
controversy as to warrant [its] invocation of federal-court jurisdiction." Summers v. Earth Island
Inst., 555 U.S. 488, 129 S.Ct. 1142, 1149, 173 L.Ed.2d 1 (2009) (internal quotations and
emphasis omitted). In the normal course, the plaintiff has the responsibility clearly to allege facts
demonstrating that it is a proper party to invoke judicial resolution of the dispute and the exercise
of the court's remedial powers. Warth v. Seldin, 422 U.S. 490, 518 (1975). This assures the
existence of that measure of concrete adverseness necessary to sharpen the presentation of issues
necessary for the proper resolution of the constitutional questions. City of Los Angeles v. Lyons,
461 U.S. 95 , 101 (1983).
"If a plaintiff lacks standing, the district court has no subject matter jurisdiction." Gray v.
City of Valley Park, Mo., 567 F.3d 976, 980 (8th Cir.2009) (internal quotations and citations
omitted); Morse v. Vinson, No. 3:09CV00153, 2010 WL 385945, at *2 (E.D. Ark. Jan. 27, 2010).
"If the court determines at any time that it lacks subject-matter jurisdiction, the court must
dismiss the action. " Fed.R.Civ.P. 12(h)(3); Alternate Fuels, Inc. v. Cabanas, 538 F.3d 969, 975
(8th Cir.2008) (subject matter jurisdiction can be raised at any time).
B. Defendant's Motion to Dismiss (ECF No. 90)
First, Nomax argues that SLHC lacks standing to pursue this claim because its alleged
harm is not "concrete and particularized." (ECF No. 91 at 1 (citing Spokeo, Inc. v. Robins, 136
S. Ct. 1540, 1548, 194 L. Ed. 2d 635 (2016)). Nomax maintains that SLHC has not alleged any
concrete and particularized injury resulting from the disputed faxes because SLHC does not
dispute that it consented to receiving the faxes .
In response, SLHC relies argues that it did not give Nomax "prior express invitation or
permission" to send fax advertisements. (ECF No. 92 at 3). 1 Moreover, even if it had given such
permission, SLHC argues that the opt-out notices violate the FCC regulations since they do not
contain a "fax number to opt out" or a phone number to opt out and do not state that the sender
"will comply within thirty days or they are in violation of the law." (ECF No. 92 at 3 (citing the
deposition of Dr. Ronald A. Weis, Principal of SLHC)). Dr. Weis admitted that he did not
attempt to opt out of the faxes because he asserted previous attempts to do so with other faxes
were ineffective. (ECF No. 92 at 3-4).
SLHC cites to several non-Eighth Circuit cases where the courts found "concrete"
injuries as a result of the transmission of facsimiles, including loss of toner and paper and use of
the telephone line. (ECF No. 92 at 10-11 (JWD Auto., Inc. v. DJM Advisory Grp. LLC, No.
215CV793FTM29MRM, 2016 WL 6835986 (M.D. Fla. Nov. 21 , 2016); Fauley v. Drug Depot,
Inc., 204 F. Supp. 3d 1008 (N.D. Ill. 2016); Physicians Healthsource, Inc. v. A-S Medication
Although SLHC makes this bare-bones assertion, the Court finds that it is not well-taken since
Dr. Weis stated during his deposition that "the issue of consent or not [to receiving the disputed
faxes] will not be an issue in the proceeding onward in the case." See Deposition for Dr. Weis,
Tr. 455: 16-25.
Sols. , LLC, No. 12-CV-05105, 2016 WL 5390952 (N.D. Ill. Sept. 27, 2016); Brodsky v.
HumanaDental Ins. Co., No. 1:10-CV-03233, 2016 WL 5476233 , at *11 (N.D. Ill. Sept. 29,
2016) (unsolicited faxes "occupied his fax line and machine, used his toner and paper, and
wasted his time"). SLHC notes that it alleges that the subject faxes "occupied the fax lines and
fax machines of Plaintiff and the class and prevented Plaintiffs (and the class') fax line and fax
machine from being used for Plaintiff's (and the class') business purposes" during the
SLHC claims that Nomax ' s assertion that SLHC lacks standing
because the subject faxes were sent with prior express permission confuses the issue of standing
with a merits inquiry. SLHC asserts that "[w]hehter the faxes in fact violated the TCPA or the
regulations prescribed under the TCP A is the issue to be decided on the merits," not here. (ECF
No. 92 at 11-12). SLHC contends that Nomax ' s failure to provide the proper opt-out disclosures
constitutes an "intangible" but concrete injury.
(ECF No. 92 at 12).
SLHC contends that
because Nomax did not provide an "enforceable opt-out" provision and subjected Dr. Weis "to a
heightened risk of receiving future unwanted fax advertisements, which constitutes a ' concrete'
fax injury." (ECF No. 92 at 15).
The Court agrees that SLHC has not alleged a concrete and particularized injury arising
from the alleged deficiency in the opt-out notice. Spokeo,, 136 S. Ct. at 1548. Further, the Court
holds that SLHC cannot save its claim by alleging a technical deficiency in the opt-out notice.
"The present case does not involve a circumstance in which the violation of the procedural
requirement alone is a concrete injury in fact." Woods v. Caremark, L.L.C., No. 4:15-CV-00535SRB, 2016 WL 6908108, at *5 (W.D. Mo. July 28, 2016) (Spokeo, 136 S. Ct. at 1549). The
Court holds that the opt-out notice conveys to fax recipients the means and opportunity to optout of receiving future faxes, regardless of whether the faxes also meet all of the technical
requirements of 47 C.F.R. §64.1200. Under the undisputed facts, SLHC requested and received
samples of Nomax's Effer-K on at least three to four occasions. Under Supreme Court and
Eighth Circuit precedent, SLHC has not alleged a concrete or particularized harm resulting from
receiving faxes that SLHC both invited and did not rebuke.
Further, a "heightened risk of
receiving future unwanted fax advertisements" does not present a concrete injury as a matter of
law. See also Duqum v. Scottrade, Inc., No. 4:15-CV-1537-SPM, 2016 WL 3683001, at *6
(E.D. Mo. July 12, 2016) ("increased risk of identity theft and fraud are not sufficient to
demonstrate injury in fact for purposes of Article III standing"). The Court holds that SLHC has
not alleged an injury in fact as required by Article III and his "complaint asserts 'a bare
procedural violation, divorced from any concrete harm. "' Braitberg v. Charter Commc'ns, Inc.,
836 F.3d 925, 930 (8th Cir. 2016) (quoting Spokeo, 136 S.Ct. at 1549).
Second, in the event that this Court finds no concrete injury, SLHC suggests that this
Court must remand this action, rather than dismissing it outright. (ECF No. 92 at 4-6). SLHC
claims that Nomax, who removed this action, is the party invoking federal jurisdiction. SLHC
asserts that 28 U.S .C. §1447(c) requires that this Court remand, rather than dismiss, this action.
See 28 U.S .C. §1447(c) ("If at any time before final judgment it appears that the district court
lacks subject matter jurisdiction, the case shall be remanded."). SLHC cites to several nonEighth Circuit decisions to support this position. (ECF No. 92 at 4-6 (citing Macek v. Allsaints
USA Ltd., No. 16 C 8484, 2016 WL 7116590 (N.D. Ill. Dec. 7, 2016); Disalvo v. lntellicorp
Records, Inc., No. 1:16 CV 1697, 2016 WL 5405258 (N.D. Ohio Sept. 27, 2016); Larroque v.
First Advantage LNS Screening Sols. , Inc., No. 15-CV-04684-JSC, 2016 WL 4577257 (N.D.
Cal. Sept. 2, 2016); Scharte! v. One Source Tech. , LLC, No. 1:15 CV 1434, 2016 WL 6024558
(N.D. Ohio Oct. 14, 2016); Hopkins v. Staffing Network Holdings, LLC, No. 16 C 7907, 2016
WL 6462095, at *1 (N.D. Ill. Oct. 18, 2016); Lee v. Hertz Corp., No. 15-CV-04562-BLF, 2016
WL 7034060, at *2 (N.D. Cal. Dec. 2, 2016). SLHC also cites to May v. Consumer Adjustment
Co., Inc., No. 4:14CV166 HEA, 2017 WL 227964, at *4 (E.D. Mo. Jan. 19, 2017), where the
district court remanded the action to state court after finding no Article III standing. In the
alternative, SLHC contends that this Court should dismiss this action without prejudice. (ECF
No. 92 at 6-7 (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94, 118 S. Ct. 1003,
1012, 140 L. Ed. 2d 210 (1998); Case v. Hertz Corp. , No. 15-CV-02707-BLF, 2016 WL
6835086, at *5 (N.D. Cal. Nov. 21 , 2016)).
As an initial matter, the Court holds that SLHC retains the burden to demonstrate
standing, even though this action was removed. See DaimlerChrysler Corp. v. Cuna, 547 U.S.
332, 342, 126 S. Ct. 1854, 1861 , 164 L. Ed. 2d 589 (2006) ("Whatever the parties' previous
positions on the propriety of a federal forum, plaintiffs, as the parties seeking to establish federal
jurisdiction, must make the showings required for standing.").
Next, the Court holds that
dismissal, not remand, is proper. SLHC cites to Wallace v. ConAgra Foods, Inc., 747 F.3d 1025,
1033 (8th Cir. 2014) to support its argument that this Court should remand this action. However,
Wallace involved jurisdiction based upon the Class Action Fairness Act ("CAFA") and did not
present a federal question like SLHC' s action under the TCP A. Rather, the Court follows the
decision in Hargis v. Access Capital Funding, LLC, 674 F.3d 783 , 793 (8th Cir. 2012) and
dismisses this action based upon the finding that Article III standing is "a part of the concept of
justiciability." McCarney v. Ford Motor Co., 657 F.2d 230, 233 (8th Cir. 1981). "Where the
plaintiff lacks standing, dismissal is appropriate." Woods, 2016 WL 6908108, at *5 (Hargis, 674
F.3d at 793). Because SLHC has not suffered a concrete injury and lacks standing, the Court
dismisses the case.
IT IS HEREBY ORDERED that Defendant Nomax, Inc. ' s Motion to Dismiss for Lack
of Standing (ECF No. 90) is GRANTED. Plaintiff's claims are dismissed with prejudice.
An appropriate Judgment is filed herewith.
Dated this 20th day of March, 2017.
RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE
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