United States District Court, D. Connecticut
GORSS MOTELS, INC., a Connecticut corporation, individually and as the representative of a class of similarly-situated persons, Plaintiff,
A.V.M. ENTERPRISES, INC., a Tennessee corporation, and John Does 1-5, Defendants.
RULING AND ORDER ON DEFENDANTS' MOTION TO
A. BOLDEN UNITED STATES DISTRICT JUDGE
Motels, Inc. (“Gorss Motels” or
“Plaintiff”) filed this class action Complaint on
June 29, 2017, alleging that A.V.M. Enterprises, Inc., and
John Does 1-5 sent unsolicited facsimiles
(“faxes”) to Gorss Motels and other similarly
situated plaintiffs in violation of the Telephone Consumer
Protection Act of 1991, as amended by the Junk Fax Prevention
Act of 2005, 47 U.S.C. § 227 (“JFPA”), and
Conn. Gen. Stat. § 52-570c. Compl. ¶¶ 1-3.
moved to dismiss, ECF No. 34, and Plaintiff opposed the
motion, ECF No. 38. For the following reasons,
Defendants' motion to dismiss is DENIED.
FACTUAL AND PROCEDURAL BACKGROUND
Motels, individually and on behalf of all others similarly
situated, alleges that A.V.M., a Tennessee corporation, sent
unsolicited advertisements by facsimile (“fax”)
on or about June 15, 2015, June 23, 2015, July 15, 2015,
October 19, 2015, and May 16, 2016. Compl. ¶¶ 3,
14. Gorss Motels alleges that the faxes “describe the
commercial availability or quality of Defendants'
products, goods and services.” Id. ¶ 3.
Gorss Motels alleges that it received five unsolicited faxes,
and that A.V.M. receives “some or all of the revenues
from the sale of the products, goods and services advertised
on [the faxes], and Defendants profit and benefit for the
sale of the products, goods and services advertised on [the
faxes].” Id. ¶¶ 14-15.
Motels asserts that A.V.M. sent the same and similar faxes to
at least forty other recipients within the four-year statute
of limitations period, without obtaining the
“recipients' express invitation or permission and
without having an established business as defined by the
[Telephone Consumer Protection Act] and its
regulations.” Id. ¶ 17.
Motels filed this Complaint on June 29, 2017, alleging that
A.V.M. violated the Telephone Consumer Protection Act of
1991, as amended by the Junk Fax Prevention Act of 2005, 47
U.S.C. § 227. Id. ¶ 3. Gorss Motels also
claims that A.V.M. did not provide a sufficient opt-out
provision, as required by 47 C.F.R. § 64.1200.
Id. ¶ 19. Gorss Motels also asserts claims
under Conn. Gen. Stat. § 52-570c. Id. ¶ 3.
Motels claims that this Court has federal question
jurisdiction over this case under 28 U.S.C. § 1331 and
47 U.S.C. § 227. Id. ¶ 7. In addition,
Gorss Motels asserts that the Court has supplemental
jurisdiction under 28 U.S.C. § 1367(a) over its state
law claims. Id. ¶ 8. Gorss Motels also claims
that the Court has personal jurisdiction over Defendants
because “Defendants transact business within this
judicial district, have made contacts within this judicial
district, and/or have committed tortious acts within this
judicial district.” Id. ¶ 9. Finally,
Gorss Motels claims that venue is proper under 28 U.S.C.
§§ 1391(b)(2) because “this is the judicial
district in which a substantial part of the events or
omissions giving rise to the claims in this case occurred,
” id. ¶ 10, and that they bring this suit
under 47 U.S.C. § 227(b)(3), which establishes a private
right of action. Id. ¶ 34.
October 2, 2017, A.V.M. moved to dismiss the Complaint under
Federal Rules 12(b)(1) and 12(b)(6). Mot. Dismiss, ECF No.
34. A.V.M. argues that the faxes were sent to the recipients
in the context of their relationships with Wyndham Worldwide,
not as unsolicited advertisements. Id. at 6. Second,
A.V.M. argues that the TCPA requires an opt-out notice only
for unsolicited faxes; because these were not unsolicited,
A.V.M. argues, this Count must also be dismissed.
Id. at 7-9. A.V.M. also argues that the alleged
technical violation of the opt-out requirement does not
amount to an injury in fact under Spokeo, Inc. v.
Robins, 136 S.Ct. 1540, 1549 (2016).
STANDARD OF REVIEW
survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a plaintiff must state a claim for relief
that is plausible on its face. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citation omitted);
see also Fed. R. Civ. P. 8(a)(2) (requiring that a
plaintiff plead only “a short and plain statement of
the claim showing that the pleader is entitled to
is facially plausible if “the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. In other
words, to state a plausible claim, a plaintiff's
complaint must have “enough fact to raise a reasonable
expectation that discovery will reveal evidence”
supporting the claim. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 556 (2007). Although “detailed factual
allegations” are not required, a complaint must offer
more than “labels and conclusions, ” “a
formulaic recitation of the elements of a cause of action,
” or “naked assertion[s]” devoid of
“further factual enhancement.” Id. at
Complaint must be construed liberally, and “all
reasonable inferences must be drawn in the plaintiff's
favor.” Concord Assocs., L.P. v. Entm't
Properties Tr., 817 F.3d 46, 52 (2d Cir. 2016);
Cohen v. S.A.C. Trading Corp., 711 F.3d 353, 359 (2d
Cir. 2013) (noting that, at this stage, the Court views the
facts alleged in the Complaint in the light most favorable to
the plaintiff and draws all reasonable inferences in the
plaintiff's favor). Still, the Complaint must contain
“more than a sheer possibility that a defendant has
acted unlawfully.” Galiano v. Fed. Nat. Title Ins.
Co., 684 F.3d 309, 313 (2d Cir. 2012). In other words,
the Court will not “accept as true a legal conclusion
couched as a factual allegation.” Iqbal, 556
U.S. at 678.
federal court lacks subject-matter jurisdiction under Rule
12(b)(1), the Court must dismiss the action. Fed.R.Civ.P.
12(h)(3). “Federal courts are courts of limited
jurisdiction[.]” Gunn v. Minton, 568 U.S. 251,
256 (2013); see also Spokeo, Inc., 136 S.Ct. at 1547
(explaining that “[n]o principle is more fundamental to
the judiciary's proper role in our system of government
than the constitutional limitation of federal-court
jurisdiction to actual cases or controversies” (quoting
Raines v. Byrd, 521 U.S. 811, 818 (1997)).
“Objections to a tribunal's jurisdiction can be
raised at any time[.]” Sebelius v. Auburn Reg'l
Med. Ctr., 568 U.S. 145, 153 (2013). In determining
whether a case or controversy exists, the district court will
view all uncontroverted facts 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).