United States District Court, D. Connecticut
MEMORANDUM OF DECISION DENYING MOTION TO DISMISS
Vanessa L. Bryant United States District Judge
Gorss Motels, Inc. brings this putative class action against
Defendant Sysco Guest Supply, LLC and John Does 1-5
(“Defendants”) for violations of the Telephone
Consumer Protection Act of 1991, as amended by the Junk Fax
Prevention Act of 2005, 47 U.S.C. §§ 227, et
seq. (“TCPA”). Before the Court is
Defendants' motion to dismiss for failure to establish
subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). The
Court must now determine whether Defendants' three
allegedly unsolicited facsimile (fax) advertisements
adequately confer upon Plaintiff Article III standing to
bring this suit. For the foregoing reasons, the Court finds
that they do confer jurisdiction and accordingly DENIES
Defendants' Motion to Dismiss.
the TCPA, it is “unlawful for any person within the
United States . . . to use 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). The TCPA confers a private right of
action for persons or entities to enjoin a violation, recover
monetary loss or receive $500 in damages, or both. 47 U.S.C.
to the Complaint, Defendants have sent unsolicited facsimile
advertisements to Plaintiff, including but not limited to
three faxes sent in August or September of 2013. [Dkt. 1
¶ 2]. The faxes “describe the commercial
availability or quality of Defendants' products, goods
and services.” Id. These “junk
faxes” do not contain the required opt-out language.
Id. ¶ 3. Plaintiff did not give Defendant prior
express invitation or permission to send such faxes to
Plaintiff. Id. ¶ 13. Defendants allegedly sent
“the same and other unsolicited facsimiles with opt-out
language identical or substantially similar to the opt-out
language of the fax advertisements” to Plaintiff and at
least 40 other recipients or sent the advertisements with the
required opt-out language but without permission.
Id. ¶ 14. Plaintiff believes Defendant
continues to send these junk faxes. Id. ¶¶
seeks to certify a class that includes those who received
faxes from Defendant during the four years prior to the
filing of this case. Id. ¶ 29. Plaintiff
believes that the faxes others received “were and are
being done in the same or similar manner.” Id.
¶ 5. Plaintiff and others from the putative class do not
have a reasonable means to avoid receiving unauthorized faxes
as fax machines are left on and operative to receive urgent
communications. Id. ¶ 15. Plaintiff and the
putative class do not have an established business
relationship with Defendant. See Id. ¶ 33.
result of Defendants' actions, “Plaintiff and the
other class members” have (1) lost paper and toner due
to the printing of the faxes; (2) experienced the use of
their telephone lines and fax machines in connection with the
unsolicited faxes; and (3) wasted time receiving, reviewing
and routing the Defendants' unauthorized faxes, which
could otherwise be spent on business activities. Id.
courts are courts of limited jurisdiction. . . .”
Gunn v. Minton, 568 U.S. 251, 256 (2013). Subject
matter jurisdiction is not waivable, and a lack of subject
matter jurisdiction may be raised at any time, by a party or
the court sua sponte. See Gonzalez v.
Thaler, 565 U.S. 134, 141 (2012); see also Sebelius
v. Auburn Reg'l Med. Ctr., 568 U.S. 145, 153 (2013)
(“Objections to a tribunal's jurisdiction can be
raised at any time, even by a party that once conceded the
tribunal's subject-matter jurisdiction over the
controversy.”). In circumstances where a plaintiff
lacks Article III standing, a court may not exercise subject
matter jurisdiction. Cent. States Se. & Sw. Areas
Health & Welfare Fund v. Merck-Medco Managed Care,
L.L.C., 433 F.3d 181, 198 (2d Cir. 2005). If a court
lacks subject matter jurisdiction, it must dismiss the
action. See Fed. R. Civ. P. 12(h)(3).
“district court must take all uncontroverted facts in
the complaint [ ] as true, and draw all reasonable inferences
in favor of the party asserting jurisdiction.”
Tandon v. Captain's Cove Marina of Bridgeport,
Inc., 752 F.3d 239, 243 (2d Cir. 2014). However,
“where jurisdictional facts are placed in dispute, the
court has the power and obligation to decide issues of fact
by reference to evidence outside the pleadings. . . .”
Id. “In that case, the party asserting subject
matter jurisdiction has the burden of proving by a
preponderance of the evidence that it exists.”
moves for dismissal solely on the basis that Plaintiff lacks
Article III standing to bring suit for a TCPA violation. The
Court accordingly shall address this limited issue involving
subject matter jurisdiction and will not address the merits
of the case.
Article III, section 2 of the Constitution, a federal court
is limited to jurisdiction over “Cases” and
“Controversies.” Massachusetts v.
E.P.A., 549 U.S. 497, 516 (2007). The doctrine of
standing is “an essential and unchanging part of the
case-or-controversy requirement of Article III.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992). “‘[T]he gist of the question of
standing' is whether petitioners have ‘such a
personal stake in the outcome of the controversy as to assure
that concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for
illumination.” E.P.A., 549 U.S. at 517
(quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).
Proper standing requires a three-part showing: that the
plaintiff has “(1) suffered an injury in fact, (2) that
is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a
favorable judicial decision.” Spokeo, Inc. v.
Robins, 136 S.Ct. 1540, 1547 (2016) (citing
Lujan, 504 U.S. at 560-61). The plaintiff bears the
burden of properly alleging facts that establish these
position is that Plaintiff lacks Article III standing for two
reasons: (1) it fails to establish a “concrete
injury” as required for an “injury-in-fact,
” and (2) it cannot establish a causal connection
between the injuries and the ...