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Gorss Motels, Inc. v. Sunbeam Consumer Products

United States District Court, D. Connecticut

May 11, 2018

GORSS MOTELS, INC. Plaintiff,
v.
SUNBEAM CONSUMER PRODUCTS, AND SYSCO GUEST SUPPLY, LLC, Defendants.

          MEMORANDUM OF DECISION DENYING DEFENDANT'S MOTION TO DISMISS THE SECOND AMENDED COMPLAINT

          HON. VANESSA L. BRYANT UNITED STATES DISTRICT JUDGE.

         I. Introduction

         Before the Court is a Motion to Dismiss the Second Amended Complaint under Federal Rule of Civil Procedure 12(b)(6) filed by Defendant Sunbeam Products, Inc. (“Sunbeam”). The Second Amended Complaint asserts Defendants Sunbeam and Sysco Guest Supply, LLC (“Sysco”) (together “Defendants”) violated the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227 (“TCPA” or the “Act”) by sending Plaintiff an unsolicited advertisement via facsimile. The Motion to Dismiss challenges the one-count Complaint for failure to assert facts upon which Sunbeam might be held liable under the TCPA. For the reasons discussed below, Sunbeam's Motion is DENIED.

         II. Factual Background

         The facts alleged in the Second Amended Complaint (“SAC”) are taken as true and construed in the light most favorable to Plaintiff for the purpose of a motion to dismiss. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

         On or about April 2015, Defendants used a telephone facsimile (“fax”) machine, computer, or other device to send an unsolicited fax. [Dkt. 19 (SAC) at ¶ 13.] The fax, a copy of which is attached to the SAC, [1] bears a logo at the top reading “Sunbeam Hospitality.” [Dkt. 19-1 (Fax).] The fax features images of Mr. Coffee coffee makers and Sunbeam shower heads, advertising “buy four get one free.” Id. The fax also bears a logo reading “Wyndham Hotel Group.” Id. At the bottom of the page is another logo reading “Sunbeam Hospitality, Together we'll make your day.” Id. That logo appears next to a short form to submit to redeem the advertised offer for coffee makers or shower heads, with spaces to provide the hotel name, address, phone number, and email address of the recipient. Id. The fax instructs the recipient to send the completed form, along with a “copy of an invoice from an authorized Sunbeam Hospitality Distributor to: Sunbeam Hospitality Customer Service . . .” Id. In small font at the bottom of the page, the fax also states:

All products and services are manufactured and/or provided by Sunbeam Hospitality and not by Wyndham Worldwide Corporation (WWC), or its affiliates. Neither WWC nor its affiliates are responsible for the accuracy or completeness of any statements made by this advertisement, the content of this advertisement (including the text, representations and illustrations) or any material on a website to which the advertisement provides a [number] or a reference. Please refer to the applicable brand specifications for your property prior to purchasing products.

Id. The fax also states “© Sunbeam Products, Inc. doing business as Jarden Consumer Solutions. All rights reserved.” Id. Plaintiff asserts the fax does not display an opt-out notice as required by 47 C.F.R. § 64.1200.

         Plaintiff asserts that, on “information and belief, Defendants receive some or all of the revenues from the sale of the products, goods and services advertised on Exhibit A, and Defendants profit and benefit from the sale of the products, goods and services advertised on Exhibit A.” SAC at ¶ 20. Plaintiff did invite or give permission to Defendants to send the fax. Id. at ¶ 21.

         Plaintiff also asserts that, on “information and belief, Defendants faxed the same and other unsolicited facsimiles without the required opt-out language to Plaintiff and at least 40 other recipients, or sent the same and other advertisements by fax with the required opt-out language but without first receiving the recipients' express invitation or permission and without having an established business relationship (EBR) as defined by the TCPA and its regulations.” Id. at ¶ 22.

         Plaintiff asserts the unsolicited fax harmed Plaintiff and other recipients by consuming paper and toner, using telephone lines and fax machines, requiring employees to expend time receiving, reviewing, and routing the unauthorized faxes, and “interrupt[ing]” their “privacy interests in being left alone.” Id. at ¶ 44.

         III. Legal Standard

         To survive a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6), the complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In considering a motion to dismiss for failure to state a claim, the Court should follow a “two-pronged approach” to evaluate the sufficiency of the complaint. Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). “A court ‘can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.'” Id. (quoting Iqbal, 556 U.S. at 679). “At the second step, a court should determine whether the ‘well-pleaded factual allegations, ' assumed to be true, ‘plausibly give rise to an entitlement to relief.'” Id. (quoting Iqbal, 556 U.S. at 679). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (internal quotations omitted).

         IV. ...


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