United States District Court, D. Connecticut
ROGER H. KAYE and ROGER H. KAYE, MD PC, on behalf of themselves and all others similarly situated, Plaintiffs,
MD TLC, INC., FLO GOSHGARIAN, AND DIANNE QUIBELL, Defendants.
RULING AND ORDER ON MOTION TO DISMISS
A. BOLDEN UNITED STATES DISTRICT JUDGE.
January 5, 2018, Roger H. Kaye and Roger H. Kaye, MD PC
(“Plaintiffs”), on behalf of themselves and all
others similarly situated, sued MD TLC, Inc. (“MD
TLC”), Flo Goshgarian, and Dianne Quibell (collectively
“Defendants”), claiming that Defendants sent them
unsolicited facsimiles (“faxes”) in violation of
the Telephone Consumer Protection Act, 47 U.S.C. §
227(b). Compl., ECF No. 1.
now move to dismiss, arguing that the Court lacks personal
jurisdiction over them, that Plaintiffs failed to serve
Defendants with sufficient process, and that the Complaint
fails to state a claim against them. Mem. in Support of Mot.
Dismiss (“Def.'s Br.”), ECF No. 13 (citing
Fed.R.Civ.P. 12(b)(2), 12(b)(5), and 12(b)(6)).
following reasons, the Court lacks personal jurisdiction over
the Defendants and GRANTS the motion to
FACTUAL AND PROCEDURAL BACKGROUND
Kaye, a Connecticut resident, and Roger H. Kaye, MD PC, a
professional corporation with its principal place of business
in Norwalk, Connecticut, allege that Defendant MD TLC,
medical consultant office and full-service cosmetic medicine
practice based in Massachusetts, sent unsolicited fax
advertisements to Plaintiffs' fax machine. Compl. at 2-3.
Plaintiffs allege that Ms. Goshgarian and Ms. Quibell
personally directed and authorized sending the faxes, and
were the “guiding spirits and central figures behind
the Fax Advertisements being sent in the manner in which they
were sent” on at least three occasions, January 9,
2014, February 18, 2014, and March 4, 2014. Id. at
faxes, which Plaintiffs attached to the Complaint, advertise
a “comprehensive aesthetics/cosmetics workshop”
at a hotel in Las Vegas that would “focus on didactics,
hands on training, and establishing and maximizing cash
procedures in your practice.” Compl. Ex. A (emphasis
omitted), ECF No. 1-1. The faxes explained that the workshop
would cover topics including laser hair removal, cellulite
reduction, toenail fungus removal, tattoo removal, and skin
rejuvenation. Id. The faxes also stated: “If
you cannot attend the workshop, or if you would like more
information on the aesthetic industry: Please call (866)
637-5801 ext. 1, or email: info@SaratogaCourses.com.”
Id. The signature line included the signature of
Michael Smith, Saratoga Courses, Aesthetics Division.
Id. The faxes also contained an opt-out notice that
The recipient is entitled to require the sender not to send
any future unsolicited advertisements to its telephone
facsimile machine. Failure to comply within 30 days from the
date the request is properly made is unlawful. (877) 254-0029
is the telephone number and (800) 561-4021 is the fax number
for the recipient to transfer such opt-out request.
Id.; see also Compl. at 4.
faxes did not mention Defendants. See generally
Compl. Ex A.
allege that the faxes failed to state that “a
recipient's request to opt out of future fax advertising
will be effective only if the request identifies the
telephone number(s) of the recipient's telephone
facsimile machine(s) to which the request relates, ”
and because it “fails to state that a recipient's
opt-out request will be effective so long as that person does
not, subsequent to making such request, provide express
invitation or permission to the sender, in writing or
otherwise, to send such advertisements.” Id.
allege that Defendants “either negligently or willfully
and/or knowingly arranged for and/or caused the Fax
Advertisements to be sent to Plaintiffs' fax
machine.” Id. They allege that they suffered
harm as a result of receiving the unsolicited faxes, namely
wasted paper and toner, that the faxes occupied their line,
and that they wasted time and caused Plaintiffs annoyance.
Id. at 4-5.
January 5, 2018, Plaintiffs filed a Complaint against
Defendants for violating the Telephone Consumer Protection
Act, 47 U.S.C. § 227 (the “TCPA”), claiming
that “Defendants have caused to be sent out over five
thousand (5, 000) unsolicited and solicited fax
advertisements for goods and/or services without proper
opt-out notices to persons throughout the United ...