Kaye v. MD TLC, Inc.

          RULING AND ORDER ON MOTION TO DISMISS

          VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE.

         On 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.

         Defendants 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)).

         For the following reasons, the Court lacks personal jurisdiction over the Defendants and GRANTS the motion to dismiss.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Factual Allegations

         Mr. 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, ^[1] a 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 3.

         The 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.”^[2] 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 read:

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.

         The faxes did not mention Defendants. See generally Compl. Ex A.

         Plaintiffs 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. at 4.

         Plaintiffs 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.

         B. Procedural History

         On 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 ...