LARY v. THE DOCTORS ANSWER, LLC Civil Action No. CV-12-S-3510-NE.
JOHN LARY, Plaintiff, v. THE DOCTORS ANSWER, LLC, and BEN PURE, Defendants.
United States District Court, N.D. Alabama, Northeastern Division.
March 8, 2013.
MEMORANDUM OPINION AND ORDER
C. LYNWOOD SMITH, District Judge.
Plaintiff, Dr. John Larry, alleges that defendants, The Doctors Answer, LLC, and Ben Pure, transmitted an unsolicited facsimile message to plaintiff's emergency office telephone number in violation of the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227 et seq. ("TCPA").
I. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b) permits a party to move to dismiss a complaint for, among other reasons, "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). This rule must be read together with Rule 8(a), which requires that a pleading contain only a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). While that pleading standard does not require "detailed factual allegations," Bell Atlantic Corp. v. Twombly, 544 U.S. 544, 550 (2007), it does demand "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).
Iqbal, 556 U.S. at 678 (alteration supplied). Moreover, a court need not accept as true a complaint's legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
II. FACTS AS ALLEGED
As always is the case in the context of ruling upon a motion to dismiss, the district court is required to assume that
Williams v. Mohawk Industries, Inc., 465 F.3d 1277, 1281 n.1 (11th Cir. 2006) (alterations supplied).
Plaintiff, Dr. John Lary, a citizen of the State of Alabama, is a physician who maintains an office in Madison County, Alabama.
In order to send and receive information required to treat medical emergencies, plaintiff subscribes to a telephone number that is connected to a facsimile machine in his office.
As is evident from defendant's name, the advertising material from Doctors Answer specifically targeted doctors.
The Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227 et seq. ("TCPA"), "bans certain practices invasive of privacy." Mims v. Arrow Financial Services, LLC, ___ U.S. ___,132 S.Ct. 740, 744 (2012). Among other things, the Act prohibits the making of:
47 U.S.C. § 227(b)(1)(A)(i) (alteration supplied). The Act also proscribes the use of "any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement[.]" 47 U.S.C. § 227(b)(1)(c) (alteration supplied).
A. Motion to Dismiss for Lack of Personal Jurisdiction
Defendants claim that plaintiff "has not, and cannot, establish that this Court has personal jurisdiction over either Defendant."
"Congress' design would be less well served if consumers had to rely on `the laws or rules of court of a State,' §227(b)(3), or the accident of diversity jurisdiction, to gain redress for TCPA violations." Id. Thus, "federal courts [have] federal-question jurisdiction over private TCPA suits." Id. at 747 (alteration and emphasis supplied). Accordingly, this court will deny the motion to dismiss on the grounds that the court allegedly lacks personal jurisdiction over defendants.
B. Motion to Dismiss for Improper Venue
Defendants argue that venue is only proper in New Jersey, the state where both defendants reside, and from which the facsimile that gave rise to the present action was transmitted.
Under section 1391(b), a plaintiff may bring an action not founded on diversity of citizenship in:
28 U.S.C. § 1391(b) (footnote supplied). Defendants argue that:
Multiple federal courts have rejected defendants' argument. In Meredith v. Unifund CCR Partners, No. 2:08-CV-375-MEF, 2008 WL 4767523 (M.D. Ala. Oct. 29, 2008), the defendants were Northern District of Alabama residents who attempted to collect a debt from the plaintiff by mailing letters to his residence in the Middle District. Id. at *2-5. The plaintiff challenged the defendants' practices by commencing a lawsuit in the Middle District, and the defendants moved to either dismiss the action for improper venue, or transfer the action to the Northern District. Id. at *6. The court rejected the defendants' assertion that "venue is proper in the Northern District because the mail that gave rise to the . . . lawsuits originated . . . in the Northern District," and reasoned as follows:
Id. at *6-7 (alterations and emphasis supplied).
Likewise, in Cordell v. Greene Financial Co., 892 F.Supp. 1396 (M.D. Ala. 1995), the defendants were Georgia residents who advertised refinancing services to the plaintiff by mailing letters to his Alabama residence. Id. at 1399. The plaintiff claimed fraud and commenced a lawsuit in Alabama, and the defendants moved to dismiss on jurisdictional and venue grounds. Id. at 1398. After considering the motion to dismiss of lack of subject matter jurisdiction, and concluding that defendants were "amenable to suit in Alabama," the court held that venue was proper under 28 U.S.C. § 1391(2) and (3), the former of which requires "a substantial part of the events or omissions giving rise to the claim [to have] occurred" in the forum. Id. at 1401 n.9 (alteration supplied).
District courts from other circuits have denied motions to dismiss or transfer private TCPA enforcement actions from the states where the plaintiffs received the offending communications to the states from which the communications were sent. In Van Sweden Jewelers, Inc. v. 101 VT, Inc., No. 1:10-CV-253, 2012 WL 4074620 (W.D. Mich. June 21, 2012), the defendants, a California jewelry company and its president, allegedly transmitted an unsolicited advertising facsimile to the plaintiff in Michigan. Id. at *1. The court denied the defendants' motion to transfer the action out of Michigan, "the district where Plaintiff conducts business and where a significant portion of the events allegedly took place[.]" Id. at *27-28 (alteration supplied) (footnote omitted).
Similarly, in Flexicorps, Inc. v. Benjamin & Williams Debt Collectors, Inc., 2007 WL 1560212, (N.D. Ill. May 29, 2007), the defendants — three New York debt collection agencies and their sole shareholder — transmitted an unsolicited collection facsimile to the plaintiff in Illinois. Id. at *1-2. The court denied the defendants' motion to either dismiss the action on the basis of forum non conveniens or transfer the action to New York under 28 U.S.C. § 1404(a). Id.
This court is persuaded by the foregoing cases that "venue is proper in the district where [plaintiff] resides because the injury did not occur" when the facsimile was sent from New Jersey; it occurred when "the [facsimile] was received" in Alabama. Meredith, 2008 WL 4767523, at *6-7 (alterations and emphasis supplied). Given that "a substantial part of the events . . . giving rise to the claim" occurred in this district, plaintiff's choice of forum is proper under section 1391(b)(2).
Even so, a district court may transfer a case "[f]or the convenience of parties and witnesses, [and] in the interest of justice, . . . to any other district or division where it might have been brought[.]" 28 U.S.C. § 1404(a) (alterations supplied). As both defendants "reside" in New Jersey, see 28 U.S.C. § 1391(c)(1) and (d), plaintiff could also have brought this action in that state under section 1391(b)(1). Accordingly, this court will assess whether convenience and justice favor transfer to a federal court sitting in New Jersey.
1. Convenience of Parties and Witnesses
The decision to transfer is within the sound discretion of the trial court. See Ross v. Buckeye Cellulose Corp., 980 F.2d 648, 654 (11th Cir. 1993); England v. ITT Thompson Industries, Inc., 856 F.2d 1518, 1520 (11th Cir. 1988). "The plaintiff's choice of forum should not disturbed unless it is clearly outweighed by other considerations." Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253, 260 (11th Cir. 1996) (citing Howell v. Tanner, 650 F.2d 610, 616 (5th Cir. 1981), cert. denied 456 U.S. 918 (1982)).
Plaintiff resides in Alabama, while defendants reside in New Jersey.
Section 1404(a) does not provide for transfer "to a forum likely to prove equally convenient or inconvenient." Van Dusen v. Barrack, 376 U.S. 612, 645-46 (1964). Further, the transfer of this action from Alabama to New Jersey "would merely shift inconvenience from the defendants to the plaintiff." Robinson, 74 F.3d at 260. Because the convenience of the parties and witnesses does not "clearly outweigh" the presumption in favor of plaintiff's original choice of forum, id. (emphasis supplied), the convenience factor weighs against transfer.
2. Interest of Justice
The Supreme Court has noted that questions of venue require "an individualized case-by-case consideration of convenience and fairness." Van Dusen, 376 U.S. at 622. "If the combination and weight of factors requisite to given results [on venue motions] are difficult to forecast or state, those to be considered are not difficult to name." Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947) (alteration and emphasis supplied).
inexpensive. There may also be questions as to the enforceability of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, "vex," "harass," or "oppress" . . . .
Id. at 508-09 (footnote omitted).
In the context of analyzing a motion to transfer a private TCPA action from the state in which the communication was received to the state from which it was sent, a district court from the Seventh Circuit summarized the law as follows:
Flexicorps, 2007 WL 1560212, at *17-18 (alterations supplied).
Because the parties have not indentified the witnesses and evidence they intend to present at trial, this court has no information regarding "the relative ease of access to sources of proof [and] availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses." Gulf, 330 U.S. at 508-09 (alteration supplied); see also Heller, 883 F.2d at 1293. It does not appear that this action will require a "view of premises" in either Alabama or New Jersey. Gulf, 330 U.S. at 508-09. The parties are likely to obtain a judge familiar with federal law, a speedy trial, and an enforceable judgment in the courts of both states. Id.; Heller, 883 F.2d at 1293. Defendants have presented no evidence that plaintiff chose this forum to "vex," "harass," or "oppress." Gulf, 330 U.S. at 508-09.
Further, this action constitutes a localized controversy because it alleges a violation of federal law that is directed to an Alabama resident. See Gulf, 330 U.S. at 508-09. Although defendants repeatedly dispute the allegation that they "directed" their activities toward plaintiff, and assert that they transmitted the offending facsimile "inadvertently,"
In Cordell, the defendants were Georgia residents who mailed advertisements to the plaintiff at his Alabama residence. 892 F. Supp. at 1399. The court denied motions to dismiss for lack of subject matter jurisdiction and improper venue because one defendant had "purposefully directed its activities toward Alabama's citizenry in mailing the solicitation correspondence . . . . Clearly, [the defendant could] not say that it ventured into Alabama not of its own volition." Id. at 1400 (alteration supplied). As in Cordell, the defendants in the case before this court chose to advertise to an Alabama resident. Because defendants have not borne their burden under section 1404(a), this court will deny their motion to dismiss for improper venue.
C. Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted
In their motion to dismiss plaintiff's complaint, defendants contend that the motion is based in part on "Federal Rules of Civil Procedure 12(b)(1) [sic] (failure to state a claim upon which relief can be granted)."
"`It is not a court's task to research legal arguments on a party's behalf.'" Costa v. Sam's East, Inc., No. 11-0297, 2012 WL 3206362, *14 (S.D. Ala. Aug. 6, 2012) (quoting Minemyer v. B-Roc Representatives, Inc., 695 F.Supp.2d 797, 809 (N.D. Ill. 2009)). "[I]ssues on which [a] party provides no argument or legal support are deemed waived." Keeler v. Fla. Department of Health, 324 F. App'x 850, 855 n.4 (11th Cir. 2009) (alterations supplied) (citing United States v. Gupta, 463 F.3d 1182, 1195 (11th Cir. 2006)).
In any event, "[t]he fact that the persons . . . acting [in violation of federal law] are acting for a corporation also, of course, may make the corporation liable under the doctrine of respondeat superior. It does not relieve the individuals of their responsibility." Mead Johnson & Co. v. Baby's Formula Service, Inc., 402 F.2d 19, 23 (5th Cir. 1968) (alterations and emphasis supplied). In accordance with those principles:
Texas v. American Blast Fax, Inc., 164 F.Supp.2d 892, 898 (W.D. Tex. 2001) (emphasis supplied). Thus, this court will deny the motion to dismiss for failure to state a claim upon which relief can be granted.
For the reasons explained above, defendants' motion to dismiss is DENIED in its entirety.
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