Sartin v. EKF Diagnostics Inc., et al, No. 2:2016cv01816 - Document 19 (E.D. La. 2016)
Court Description: ORDER AND REASONS granting 5 Motion to Dismiss for Lack of Jurisdiction. This dismissal is WITHOUT PREJUDICE and with leave to file an amended complaint within twenty-one (21) days of this order. Defendants' motions strike plaintiff's class allegations and to stay this case pending the Supreme Court's ruling in Spokeo, Inc. v. Robins are DENIED AS MOOT.. Signed by Judge Sarah S. Vance on 7/5/16. (jjs)
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Sartin v. EKF Diagnostics Inc., et al Doc. 19 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA DR. BARRY SARTIN CIVIL ACTION VERSUS NO: 16-1816 EKF DIAGNOSTICS, INC. & STANBIO LABORATORY, L.P. SECTION: R ORD ER AN D REASON S Plaintiff Dr. Barry Sartin brings this lawsuit on behalf of him self and a proposed class of individuals and entities to whom defendants EKF Diagnostics, Inc. and Stanbio Laboratory, L.P. allegedly sent unsolicited fax advertisements in violation of the Telephone Consum er Protection Act of 1991, as am ended by the J unk Fax Prevention Act of 20 0 5, 47 U.S.C. § 227 ("TCPA"). Defendants m ove the Court to dism iss the com plaint for lack of Article III standing, or, in the alternative, to strike its class action allegations as insufficient to establish an ascertainable class. Because the com plaint fails to allege any facts indicating that defendants' fax caused Dr. Sartin a concrete injury in fact, the Court grants defendants' m otion to dism iss. Dockets.Justia.com I. BACKGROU N D In this junk fax case, Dr. Sartin alleges that defendants Stanbio Laboratory and its parent com pany, EKF Diagnostics, violated the TCPA by sending unsolicited faxes advertising their products and services. Dr. Sartin alleges that he "was the recipient of [a] fax advertisem ent sent by Defendants on Septem ber 24, 20 14."1 The fax, which Dr. Sartin subm its as an exhibit to his com plaint, discusses a "Glycated Serum Protein LiquiColor Assay," which the fax describes as "a 2-3 week glycem ic m arker that could benefit patients" with certain m edical conditions.2 The fax's cover sheet indicates that it was sent from Stanbio Laboratory and addressed to two recipients: East J efferson General Hospital and Dr. Barry Sartin.3 A m essage on the cover sheet begins "Dear Dr. Sartin" and concludes by stating "[i]f your lab is interested in setting up the GSP, we are offering free validation kits at this tim e."4 According to Dr. Sartin, this fax was part of a larger cam paign, in which defendants purchased 1 R. Doc. 1 at 2 ¶ 5. 2 R. Doc. 1-1 at 1. 3 Id. 4 Id. (em phasis in the original). 2 lists of fax num bers from third parties and "blasted thousands of junk faxes to businesses" without obtaining prior consent.5 On March 3, 20 16, Dr. Sartin filed this lawsuit against defendants, seeking statutory dam ages and injunctive relief.6 Dr. Sartin brings his TCPA claim s on behalf of him self and a proposed class consisting of all persons and entities, to which within four years of the filing of this Com pliant, Defendants sent facsim ile transm issions with content that discusses, describes, prom otes, products and/ or services offered by Defendants, and does not contain the opt-out notice required by 47 U.S.C. §§ 227(b)(1)(C)(iii), (b)(2)(D), (b)(2)(E), (d)(2) or 47 C.F.R. § 64.120 0 (a)(iii)-(iv).7 Defendants now m ove to dism iss the com plaint under Federal Rule of Civil Procedure 12(b)(1) for lack of Article III standing.8 According to defendants, Dr. Sartin rests his standing claim s on allegations of a bare violation of the TCPA, and he fails to allege that defendants' conduct caused him a concrete injury in fact. In the alternative, defendants ask the Court to strike Dr. Sartin's class allegations under Rule 12(f). Defendants contend that 5 R. Doc. 1 at 5 ¶ 13, 14. 6 R. Doc. 1. 7 Id. at 6 ¶ 18. 8 R. Doc. 5-1. 3 Dr. Sartin's class definition fails to establish an ascertainable group, whose boundaries can be objectively defined and feasibly adm inistered.9 II. LEGAL STAN D ARD Federal Rule of Civil Procedure 12(b)(1) governs challenges to a district court's subject m atter jurisdiction. "A case is properly dism issed for lack of subject m atter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case." Hom e Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 10 0 6, 10 10 (5th Cir. 1998) (quoting N ow ak v. Ironw orkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996)). A district court may dism iss for lack of subject m atter jurisdiction on any one of three bases: "(1) the com plaint alone; (2) the com plaint supplem ented by undisputed facts in the record; or (3) the com plaint supplem ented by undisputed facts plus the court's resolution of disputed facts." Clark v. Tarrant County , 798 F.2d 736, 741 (5th Cir. 1986) (citing W illiam son, 645 F.2d at 413). Here, defendants contend that Dr. Sartin lacks standing because he fails to plead an injury in fact divorced from defendants' alleged violations of the 9 In their original m otion defendants also asked the Court, as an alternative to dism issing Dr. Sartin's suit for lack of Article III standing, to stay this litigation pending the Suprem e Court's ruling in Spokeo, Inc. v. Robins. The Suprem e Court's Spokeo decision has since been handed down, so defendants' request is denied as m oot. 4 TCPA. Defendants offer no evidence by affidavit or otherwise to support this argum ent. In the absence of such evidence, the Court treats defendants' m otion as a "facial attack" on the com plaint, in which case review "is lim ited to whether the com plaint is sufficient to allege jurisdiction." Paterson v. W einberger, 644 F.2d 521, 523 (5th Cir. 1981); Russell v. Choicepoint Servs., Inc., 30 2 F. Supp. 2d 654, 663 (E.D. La. 20 0 4). Accordingly, the Court accepts as true all factual allegations set forth in the com plaint. Ass'n of Am . Phy sicians & Surgeons, Inc. v. Texas Med. Bd., 627 F.3d 547, 550 (5th Cir. 20 10 ) (quoting Pennell v. City of San Jose, 485 U.S. 1, 7 (1988)). III. D ISCU SSION In any suit in federal court, the issue of standing presents a "threshold jurisdictional question." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 10 2 (1998). The requirem ent that a party have standing to bring suit flows from Article III of the Constitution, which lim its the scope of the federal judicial power to the adjudication of "cases" or "controversies." U.S. Const. art. III, § 2. Standing consists of three elem ents: (1) the plaintiff m ust have suffered an "injury-in-fact," which is an invasion of a legally protected interest that is "concrete and particularized" and "actual or im m inent"; (2) the injury m ust be "fairly traceable" to the challenged conduct of the defendant; and (3) 5 it m ust be likely that plaintiff's injury will be redressed by a favorable judicial decision. Lujan v. Defs. of W ildlife, 50 4 U.S. 555, 560 (1992). As the party invoking federal jurisdiction, the plaintiff bears the burden of establishing each elem ent of standing. Spokeo, Inc. v. Robins, 578 U.S. _ _ _ , _ _ _ , 136 S. Ct. 1540 , 1547 (20 16). To carry this burden, the plaintiff m ust support each elem ent with the "m anner and degree of evidence required at the successive stages of litigation." Lujan, 50 4 U.S. at 561. In their m otion to dism iss, defendants argue that Dr. Sartin's allegations fail to establish the "[f]irst and forem ost" of standing's three elem ents, an injury in fact. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 10 3 (1998). To dem onstrate an injury in fact, a plaintiff m ust show that he or she suffered an invasion of a legally protected interest that is both "particularized" and "concrete." Lujan, 50 4 U.S. at 560 . A "particularized" injury is an injury that "affect[s] the plaintiff in a personal and individual way." Spokeo, 136 S. Ct. at 1548. A "concrete" injury is an injury that actually exists, m eaning that it is real and not abstract. Id. An injury need not be tangible to satisfy the concreteness requirem ent. Id. at 1549. As the Suprem e Court has explained, Congress may "create a statutory right or entitlement[,] the alleged deprivation of which can confer standing to sue even where the plaintiff would have suffered no judicially cognizable injury in the absence of statute." W arth v. 6 Seldin, 422 U.S. 490 , 514 (1975) (citing Linda R.S. v. Richard D., 410 U.S. 614, 617 n. 3 (1973)). Nonetheless, Congress m ay not erase the requirem ents of Article III by legislative fiat. See Sum m ers v. Earth Island Inst., 555 U.S. 488, 497 (20 0 9) (describing the injury in fact requirem ents as "a hard floor of Article III jurisdiction that cannot be rem oved by statute"); Sierra Club v. Morton, 40 5 U.S. 727, 738 (1972) ("[Statutorily] broadening the categories of injury that m ay be alleged in support of standing is a different m atter from abandoning the requirem ent that the party seeking review m ust him self have suffered an injury."). "Article III standing requires a concrete injury even in the context of a statutory violation." Spokeo, 136 S. Ct. at 1549. Thus, a plaintiff cannot "allege a bare procedural violation, divorced from any concrete harm , and satisfy the injury-in-fact requirem ent of Article III." Id. Here, Dr. Sartin brings his claim s against defendants under the TCPA. That statute m akes it unlawful to use a fax m achine to send an unsolicited advertisem ent. 47 U.S.C. § 227(b)(1)(C).10 It also provides a private right of 10 An unsolicited advertisem ent does not violate the TCPA if the sender can dem onstrate that "(1) the sender has an established business relationship with the recipient; (2) the sender obtained the recipient's fax num ber either through a voluntary com m unication between the two or through a public source on which the recipient voluntarily m ade the num ber available; and (3) the fax has an opt-out notice m eeting the requirem ents of the statute." Py hsicians Healthsource, Inc. v. Stry ker Sales Corp., 65 F. Supp. 3d 482, 494 (W.D. Mich. 20 14), as am ended (J an 12, 20 15) (citing 47 U.S.C. 7 action, which perm its any "person or entity" to bring a lawsuit seeking (1) to enjoin a violation of the Act; (2) to recover for actual m onetary loss from such a violation or to receive statutory dam ages of $ 50 0 per violation, whichever is greater; or (3) to pursue both injunctive and m onetary relief. 47 U.S.C. § 227(b)(3). Although Dr. Sartin has plausibly alleged that defendants violated the TCPA by sending unsolicited fax advertisem ents, he fails to plead facts dem onstrating how this statutory violation caused him concrete harm . Dr. Sartin's com plaint exhaustively describes the requirem ents of the TCPA, as well as the nature of defendants' alleged "junk fax cam paign." But the com plaint's only reference to any kind of injury appears in a single sentence, which states that defendants' failure to com ply with the TCPA's requirem ents "caus[ed] Plaintiff and Plaintiff Class to sustain statutory dam ages, in addition to actual dam ages, including but not lim ited to those contem plated by Congress and the [Federal Com m unications Com m ission]."11 While a plaintiff need only provide "general factual allegations of injury" to withstand dism issal at the pleading stage, Lujan, 50 4 U.S. at 561, Dr. Sartin's conclusory allegation lacks even general factual support. Cf. Anjelino § 227(b)(1)(C)). 11 R. Doc. 1 at 9-10 ¶ 26. 8 v. N ew York Tim es Co., 20 0 F.3d 73, 88 (3d Cir. 1999) ("Standing is established at the pleading stage by setting forth [, inter alia,] specific facts that indicate that the party has been injured in fact or that injury is im m inent . . . ."); Brow n v. F.B.I., 793 F. Supp. 2d 368, 374 (D.D.C. 20 11) ("[N]ondescript and conclusory allegations of injury are not the type of general factual allegations from which the Court m ay presum e the specific facts necessary to ensure that the plaintiff has standing, and are insufficient to m eet the plaintiff's burden of alleging an injury in fact that is concrete and particularized."). The com plaint does not explain what factual harm , in Dr. Sartin's view, lawm akers "contem plated" when enacting the TCPA. Thus, its vague reference to Congress and the FCC provides no factual m aterial from which the Court can reasonably infer what specific injury, if any, Dr. Sartin sustained through defendants' alleged statutory violations. Absent supporting factual allegations, Dr. Sartin's bare assurance that an unspecified injury exists is insufficient to establish Article III standing. See Pub. Citizen, Inc. v. Bom er, 274 F.3d 212, 218 (5th Cir. 20 0 1) (dism issing com plaint when plaintiffs failed to plead specific facts indicating that they had suffered an injury in fact); Cocona, Inc. v. Sheex, Inc., 92 F. Supp. 3d 10 32, 10 40 (D. Colo. 20 15) (finding plaintiff's "conclusory" allegation of an injury in fact insufficient to establish standing). 9 To resist this conclusion, Dr. Sartin argues in his opposition m em orandum that he "wasted valuable tim e in reviewing the fax, tim e that was taken away from his m edical practice and tim e that he could have otherwise spent perform ing billable m edical procedures."12 Regardless of whether these allegations of lost tim e and opportunity cost would be sufficient to establish standing to assert a TCPA claim , "[a]n opposition to a m otion to dism iss is not the place for a party to raise new factual allegations or assert new claim s." Peter-Takang v. Dep't of Children & Fam ily Servs., No. CV 14-10 78, 20 16 WL 69633, at *4 (E.D. La. J an. 6, 20 16); see Goodw in v. Hous. Auth. of N ew Orleans, No. CIV.A. 11-1397, 20 13 WL 387490 7, at *9 n. 37 (E.D. La. J uly 25, 20 13) (noting that it is "inappropriate to raise new facts and assert new claim s in an opposition to a m otion to dism iss"). The well-pleaded factual allegations in the com plaint establish nothing m ore than a bare violation of the TCPA, divorced from any concrete harm to Dr. Sartin. See Spokeo, 136 S. Ct. at 1550 (deem ing such allegations insufficient to withstand dism issal on the pleadings). Thus, Dr. Sartin has failed to dem onstrate a judicially-cognizable injury in fact, and his com plaint m ust be dism issed. 12 R. Doc. 11 at 3. 10 Defendants ask the Court to dism iss Dr. Sartin's TCPA claim s with prejudice because Dr. Sartin opposed defendants' motion instead of requesting leave to file an am ended com plaint.13 The Court denies this request. Dr. Sartin's failure to adequately allege a concrete injury in fact m ay reflect m ere pleading defect, rather than a m ore fundam ental problem with his claim s. Moreover, while defendants' m otion to dism iss was pending before this Court, the Suprem e Court issued its decision in Spokeo, which further clarified the requirem ents for pleading Article III standing to assert a statutory violation. The Court therefore dism isses Dr. Sartin's claim without prejudice and with leave to am end within twenty-one (21) days of entry of this order. See Lopez v. City of Dallas, Tex., No. 3:0 3-CV-2223-M, 20 0 4 WL 20 2680 4, at *5 (N.D. Tex. Sept. 9, 20 0 4) (granting leave to am end because "the failure to adequately plead standing m ay be a m ere pleading defect and because events subsequent to the filing of Plaintiffs' Second Am ended Com plaint m ay have rendered Plaintiffs' claim ripe for consideration"). IV. CON CLU SION For the foregoing reasons, the Court GRANTS defendants' m otion to dism iss for lack of Article III standing. 13 R. Doc. 14 at 3. 11 This dism issal is WITHOUT PREJ UDICE and with leave to file an am ended com plaint within twenty-one (21) days of this order. Defendants' m otions strike plaintiff's class allegations and to stay this case pending the Suprem e Court's ruling in Spokeo, Inc. v. Robins are DENIED AS MOOT. New Orleans, Louisiana, this _5th day of J uly, 20 16. __ ___________________________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 12
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