McLaughlin Chiropractic Associates, Inc. v. McKesson Corporation et al

Filing 24

MEMORANDUM AND OPINION as set forth in following order.Signed by District Judge R Leon Jordan on 3/14/13. (ABF)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE

MCLAUGHLIN CHIROPRACTIC
ASSOCIATES, INC., a Tennessee
corporation, individually and as the
representative of a class of similarly-situated
persons,
Plaintiff,
v.
MCKESSON CORPORATION and
JOHN DOES 1-10,
Defendants.

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No. 3:13-CV-011

MEMORANDUM OPINION

This case is before the court on “Defendant McKesson’s Motion to Dismiss,
Stay or Transfer to the Northern District of Ohio, Eastern Division” [doc. 5]. Defendant
bases its motion on the first-to-file rule, which provides “that when actions involving nearly
identical parties and issues have been filed in two different district courts, the court in which
the first suit was filed should generally proceed to judgment.” Zide Sport Shop of Ohio v.
Ed Tobergte Assocs., 16 F. App’x 433, 437 (6th Cir. 2001) (citation and quotation omitted).
Plaintiff has responded in opposition to the motion [doc. 18], and defendant has submitted
a reply. For the reasons that follow, the motion will be granted and this case will be
transferred to the United States District Court for the Northern District of Ohio at Cleveland.

I.
Background
Plaintiff, a medical business, filed suit in this court on January 7, 2013. The
complaint before this court alleges that defendant violated the Junk Fax Prevention Act
(“JFPA”), 47 U.S.C. § 227, by transmitting three unsolicited advertisements to plaintiff’s fax
machine. Those transmissions are before the court as Exhibit A to plaintiff’s complaint. In
addition to requesting injunctive and monetary relief for itself, plaintiff seeks to represent the
following class:
All persons who (1) on or after four years prior to the filing of this action, (2)
were sent telephone facsimile messages of material advertising the commercial
availability of any property, goods, or services by or on behalf of Defendants,
(3) from whom Defendants did not obtain prior express permission or
invitation to send those faxes, (4) with whom Defendants did not have an
established business relationship, and (5) did not display a proper opt-out
notice.
Less than four months prior to the filing of the instant complaint, Civil Action
1:12-cv-2289, Whiteamire Clinic, P.A. v. McKesson Corporation and John Does 1-10, was
filed in the United States District Court for the Northern District of Ohio. Like the plaintiff
before this court, Whiteamire is also a medical business, and the Whiteamire complaint was
filed by two of the three lawyers who also filed the complaint now before this court.
As in the instant case, the Whiteamire complaint alleges that the defendant
violated the JFPA by transmitting an unsolicited advertisement to Whiteamire’s fax machine.
That transmission is before the Ohio court as an exhibit to the Whiteamire complaint and is

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nearly identical to one of the exhibits to the complaint in this court. The original complaint
filed in Whiteamire sought to represent exactly the same class (but for a four-month
difference in the filing date) as is sought by the plaintiff in this court.
Whiteamire amended its class action complaint on December 18, 2012. On
February 5, 2013, the Ohio court granted Whiteamire leave to file a second amended
complaint. Upon the filing of that pleading, the Whiteamire case is no longer a class action.
Instead, Whiteamire now seeks injunctive and monetary relief only for itself. Nonetheless,
as with the first two Whiteamire complaints and the complaint pending in this case, the
Whiteamire litigation remains based on the accusation that defendant violated the JFPA by
transmitting an advertisement to the plaintiff’s fax machine, without prior permission,
without an established business relationship between the parties, and without complying with
the statutory opt-out notice requirements. The same allegedly offending transmission
(virtually identical to one of the faxes before this court) is attached to the Whiteamire second
amended complaint.
Now pending in the Ohio case is a motion to dismiss. Therein, the parties are
litigating, inter alia, the meaning of “established business relationship” under the JFPA and
whether the fax at issue is an “advertisement” under that act.

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II.
Analysis
“The first-to-file rule is a well-established doctrine that encourages comity
among federal courts of equal rank. The rule provides that when actions involving nearly
identical parties and issues have been filed in two different district courts, the court in which
the first suit was filed should generally proceed to judgment.” Zide Sport Shop of Ohio v.
Ed Tobergte Assocs., 16 F. App’x 433, 437 (6th Cir. 2001) (citation and quotation omitted).
The similarities between the instant complaint and the initial Whiteamire complaint are both
apparent and abundant. However, plaintiff argues that because Whiteamire is no longer a putative
class action, “judicial efficiency would not be served by transfer of the instant case. Any subsequent
determination of the merits of the Whiteamire [sic] case will have no bearing on whether the instant
action should be certified as a class action or on the issue of class-wide damages if the action is
certified.” [Doc. 18, p.3]. This court disagrees.
The first-to-file rule is a doctrine of judicial efficiency. Fuller v. Abercrombie &
Fitch Stores, 370 F. Supp. 2d 686, 687 (E.D. Tenn. 2005). Courts are to consider three factors: (1)
the chronology of the actions; (2) the similarity of the parties; and (3) the similarity of the issues.
Id. “Importantly, the parties and issues need not be identical.” Id. “Rather, the crucial inquiry is
whether the parties and issues substantially overlap.” Id.
The chronology of the present actions weighs in favor of transfer. The Whiteamire
case was filed first. As for the remaining factors, there remains a substantial overlap of parties and
issues in these two cases even though Whiteamire no longer purports to be a class action.

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Both cases involve the same defendant sending essentially the same fax transmissions
to medical service providers. Among the issues to be determined in the present case are: whether
defendant’s faxes are “advertisements” under the JFPA; the meaning of prior permission and
“existing business relationship” under the JFPA; and the applicability of the statutory opt-out notice
requirement. Those very same issues are already before the Ohio court in Whiteamire.
Because of that substantial overlap of parties and issues, this court concludes that the
present case should be transferred to the court where the first case was filed. To do otherwise would
risk the possibility of inconsistent results and would be a waste of this nation’s limited judicial
resources.

III.
Conclusion
For the reasons provided herein, defendant’s motion will be granted and this
case will be transferred to the Northern District of Ohio at Cleveland. An order consistent
with this opinion will be entered.

IT IS SO ORDERED.

ENTER:

s/ Leon Jordan
United States District Judge

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