Autobahn Specialists, Inc. v. Social UPS, LLC et al
Filing
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ORDER denying 28 Defendants' Motion to Dismiss for Failure to State a Claim. FURTHER ORDERED Plaintiff shall file an amended request for class certification within thirty (30) days of this Order. Signed on 9/18/2012 by District Judge Brian C. Wimes. (Baldwin, Joella)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
AUTOBAHN SPECIALISTS, INC.,
Plaintiff,
v.
SOCIAL UPS, LLC, et al.,
Defendant.
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Case No. 6:11-CV-03196-BCW
ORDER
Before the Court is Defendants Social UPS, LLC, Virtual Lending Source, LLC,
and Telnform, LLC’s Motion to Dismiss Certain Claims Asserted by Plaintiff (Doc. #28).
The Court being duly advised of the premises, for good cause shown, and for the
reasons stated below, denies Defendants’ Motion.
MOTION TO DISMISS STANDARD
A complaint will be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) for failure to
state a claim upon which relief may be granted if it fails to plead sufficient facts, accepted
as true, “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citation omitted). A dismissal under Rule 12(b)(6) should be granted “only in the
unusual case in which a plaintiff includes allegations that show, on the face of the
complaint, that there is some insuperable bar to relief.” Strand v. Diversified Collection
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Serv., Inc., 380 F.3d 316, 317 (8th Cir. 2004) (citation omitted).
When ruling on a motion to dismiss, the Court “must accept as true all of the
complaint’s factual allegations and view them in the light most favorable to the
[nonmoving party]” and must also draw all reasonable inferences in favor of the
nonmoving party. Stodghill v. Wellston Sch. Dist., 512 F.3d 472, 476 (8th Cir. 2008).
But the Court need not accept as true a legal conclusion couched as a factual allegation.
Iqbal, 556 U.S. at 678.
DISCUSSION
A. Count III: Violation of Missouri Computer Tampering Act
Defendants argue Plaintiff has failed to state a recoverable claim under Mo. Rev.
Stat. §§ 569.097 et seq., (“Missouri Computer Tampering Act”), because any damage
incurred by Plaintiff’s receipt of a one-page fax is miniscule. Defendants posit a one-page
fax sent to Plaintiff’s computer system occupies a negligible amount of temporary
memory and printing a one-page fax costs mere pennies. Defendants cite the doctrine of
de minimis non curat lex in support of this argument.
Though the Court recognizes the receipt of a single one-page fax sent to a single
business fax machine results in minimal damages, Plaintiff has plead sufficient facts to
state a claim under the Missouri Computer Tampering Act.
The owner of a computer system may bring a civil suit against any person who
violates Mo. Rev. Stat. §§ 569.095 to 569.099 [regarding criminal computer tampering]
for compensatory damages, including all reasonable expenses incurred to verify the
computer’s system was not altered or damaged, and attorneys’ fees. Mo. Rev. Stat. §
537.525(1)–(2) (2012). Computer tampering is broadly defined as improperly interfering
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with, or making unwanted alterations to equipment or data storage devices used in a
computer, computer system, or computer network. Mo. Rev. Stat. § 569.097 (2012).
Likewise, “computer” is broadly defined to include “internal communications devices,
such as internal modems capable of sending or receiving electronic mail or fax cards.”
Mo. Rev. Stat. § 556.063(2) (2012).
Plaintiff’s First Amended Complaint alleges Defendants tampered with the
“internal storage device, paper, and toner of Plaintiff’s telephone facsimile machine
without Plaintiff’s authorization.” First Amended Complaint, Doc. #24, ¶52. With all
reasonable inferences drawn in Plaintiff’s favor for purposes of reviewing the Motion to
Dismiss, the Court concludes Mo. Rev. Stat. § 537.525 could be construed to include any
unauthorized tampering with the memory or mechanism of a telephone facsimile
machine.
Defendants further suggest Plaintiff’s claim under Mo. Rev. Stat. § 537.525 must
fail because Plaintiff failed to allege Defendants were charged with violating Missouri’s
criminal computer tampering statutes. Though a plain reading of the statute seems to
indicate criminal computer tampering is a prerequisite for recovery under Mo. Rev. Stat.
§ 537.525, precedent exists to suggest a violation of Mo. Rev. Stat. §§ 569.095, et seq.
may be a proper jury question notwithstanding a charge of criminal computer tampering
against Defendants. See Western Blue Print Co., LLC v. Roberts, et al., 367 S.W.3d 7, 20
(Mo. 2012) (affirming trial court’s denial of motion for directed verdict because there
existed a reasonable inference defendant-employee knowingly deleted plaintiff-employer
computer data in violation of Mo. Rev. Stat. § 537.525(1)).
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The Court therefore concludes Plaintiff has stated a cause of action for civil
damages under Mo. Rev. Stat. § 537.525 and Defendant’s Motion to Dismiss as to Count
III of Plaintiff’s First Amended Complaint is denied.
B. Count IV: Invasion of Privacy – Intrusion into Seclusion
Defendants seek to dismiss Count IV of Plaintiff’s First Amended Complaint,
which alleges Defendants obtained Plaintiff’s telephone facsimile machine number “from
the directories of professional business associations.” First Amended Complaint, Doc.
#24, ¶58. Defendants posit Plaintiff waived any reasonable expectation of privacy in the
fax number by taking steps to make the fax number available in a business directory.
Defendants also argue this claim is precluded because any damages incurred by the
receipt of an unwanted one-page fax are de minimis.
The Court disagrees with Defendants and denies Defendants’ Motion to Dismiss
as to Count IV of Plaintiff’s First Amended Complaint. With all reasonable inferences
drawn in Plaintiff’s favor, the Court concludes Defendants sent unsolicited facsimile
advertisements to multiple telephone facsimile numbers obtained from business
directories. Because the unsolicited advertisements were sent to multiple numbers, the
Court infers, for purposes of reviewing the Motion to Dismiss, the amount of damages
incurred are not de minimis to the point of precluding recovery.
The Court further concludes Plaintiff has factually stated a claim for intrusion into
seclusion. Missouri law requires Plaintiff to allege (1) the existence of private subject
matter; (2) Plaintiff’s right to keep that subject matter private; and (3) “the obtaining of
information about that subject matter by defendant through some method objectionable to
[a] reasonable man.” Engman v. Sw. Bell Tel. Co., 631 S.W.2d 98, 100 (Mo. Ct. App.
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1982) (citation omitted). The gravamen of an intrusion into seclusion claim is the manner
in which the alleged private information is obtained. Doe by Doe v. B.P.S. Guard Servs.,
Inc., 945 F.2d 1422, 1427 (8th Cir. 1991).
Within the context of the Telephone Consumer Protection Act (“TCPA”), of
which Plaintiff alleges a violation in Count I of the Amended Complaint that Defendants’
Motion to Dismiss does not put at issue, a business fax number listed in a trade
publication or directory does not imply a business’s consent to receive uninvited faxes.
Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991,
18 FCC Rcd. 14014 (Federal Communications Commission 2003).
Plaintiff alleges its business fax number is a private matter because Plaintiff
provides the number only for business-related purposes, Plaintiff asserts the right to enjoy
uninterrupted use of its telephone facsimile machine for business purposes, and
Defendants unreasonably obtained Plaintiff’s telephone facsimile number from
professional association directories.
Though Plaintiff’s intrusion into seclusion claim is separate from Plaintiff’s claim
under the TCPA, the Federal Communications Commission (“FCC”) has stated a
business fax number is private information to the extent that a business should be able to
release its fax number for a limited purpose without exposing itself to unsolicited fax
advertisements. The FCC has indicated a business facsimile number could be construed
as private information in a limited capacity. For purposes of Defendants’ Motion to
Dismiss, the Court concludes Plaintiff has stated a claim for intrusion into seclusion and
Defendants’ motion is denied as to this claim.
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C. Count V: Negligence
Defendants argue the doctrine of de minimis non curat lex precludes Plaintiff’s
claim of negligent faxing because Plaintiff’s alleged damages are those “resulting from
temporary loss of use of its facsimile machine and permanent loss of facsimile machine
toner and paper.” First Amended Complaint, Doc. # 24, ¶65.
To state a cause of action for negligence, Plaintiff must allege a legal duty,
Defendants’ breach of that duty, proximate cause, and actual damages to Plaintiff’s
person or property. Hoover’s Dairy, Inc. v. Mid-America Dairymen, Inc. / Special
Products, Inc., 700 S.W.2d 426, 431 (Mo. 1985). Damages that are miniscule to the point
of nonexistence require application of the de minimis non curat lex doctrine. Brandt v.
Bd. of Educ. of City of Chicago, 480 F.3d 460, 465 (7th Cir. 2007). Nominal damages
can be awarded for constitutional violations, as well as for intentional torts. Id. However,
“such an award presupposes a violation of sufficient gravity to merit a judgment, even if
significant damages cannot be proved.” Id.
The Court agrees with Defendants that damages resulting from the unwanted
receipt of a single one-page fax to a single Plaintiff are de minimis and likely preclude a
cause of action for negligence. However, Plaintiff’s First Amended Complaint includes a
request that the Court “enter an order pursuant to Rule 23(c)(1) that this action is to be
maintained as a class action.” First Amended Complaint, Doc. #24, ¶ 65.
Plaintiff asks this Court to certify as a class all persons to whom Defendants
transmitted unsolicited facsimile advertisements between April 22, 2007 and April 22,
2011. If the Court certifies this purported class, it is likely each Plaintiff’s damages in the
aggregate would overcome the de minimis damages obstacle to the negligence claim.
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However, Plaintiff’s First Amended Complaint alleges only the bare minimum of class
certification prerequisites under Fed. R. Civ. P. 23(c)(1). Plaintiff names no other
plaintiffs specifically, but purports to bring action on behalf of all others similarly
situated. With all inferences drawn in Plaintiff’s favor for purposes of reviewing
Defendants’ Motion to Dismiss, the Court finds Plaintiff has conceivably set forth a claim
for negligence. Therefore, Defendants’ Motion is denied as to Plaintiff’s negligence
claim. However, because this cause was initially filed on June 2, 2011, Plaintiff should, at
this point, have more thorough information regarding the putative class members in this
matter. Plaintiff is directed to file an amended request for class certification within thirty
(30) days of this Order which sets forth sufficient facts from which the Court can
determine whether class certification is appropriate.
CONCLUSION
IT IS HEREBY ORDERED Defendants’ Motion to Dismiss (Doc. #28) is
DENIED. It is further
ORDERED Plaintiff shall file an amended request for class certification within
thirty (30) days of this Order.
IT IS SO ORDERED.
DATED: September 18, 2012
/s/ Brian C. Wimes
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JUDGE BRIAN C. WIMES
UNITED STATES DISTRICT COURT
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