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Gorss Motels, Inc. v. A.V.M. Enterprises, Inc.

United States District Court, D. Connecticut

February 2, 2018

GORSS MOTELS, INC., a Connecticut corporation, individually and as the representative of a class of similarly-situated persons, Plaintiff,
v.
A.V.M. ENTERPRISES, INC., a Tennessee corporation, and John Does 1-5, Defendants.

          RULING AND ORDER ON DEFENDANTS' MOTION TO DISMISS

          VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE

         Gorss 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.

         Defendants moved to dismiss, ECF No. 34, and Plaintiff opposed the motion, ECF No. 38. For the following reasons, Defendants' motion to dismiss is DENIED.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Gorss 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.

         Gorss 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.

         Gorss 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.

         Gorss 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.

         On 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).

         II. STANDARD OF REVIEW

         To 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 relief”).

         A claim 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 555, 557.

         The 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.

         If a 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). ...


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