Sartin v. EKF Diagnostics Inc., et al, No. 2:2016cv01816 - Document 31 (E.D. La. 2016)

Court Description: ORDER AND REASONS denying 26 Motion to Dismiss for Lack of Jurisdiction; denying 26 Motion to Strike Complaint's Class Action Allegations.. Signed by Judge Sarah S. Vance on 12/28/16. (jjs)

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Sartin v. EKF Diagnostics Inc., et al Doc. 31 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” (2) ORD ER AN D REASON S Defendants EKF Diagnostics Inc. and Stanbio Laboratory L.P.’s m ove to dism iss plaintiff’s com plaint for lack of Article III standing, or, in the alternative, to strike the com plaint’s class action allegations as insufficient to establish an ascertainable class.1 Because Dr. Sartin’s am ended com plain t plausibly alleges a judicially cognizable injury, and because m em bership in the proposed class can be feasibly determ ined by using objective data in defendants’ fax logs, the Court denies both m otions. 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 Telephone Consum er Protection Act of 1991 (TCPA) by sending unsolicited faxes 1 R. Doc. 26. Dockets.Justia.com 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.”2 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.3 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.4 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.”5 According to Dr. Sartin, this fax was part of a larger cam paign, in which defendants purchased lists of fax num bers from third parties and “blasted thousands of junk faxes to businesses” without obtaining prior consent.6 On March 3, 20 16, Dr. Sartin filed this lawsuit against defendants, seeking statutory dam ages and injunctive relief.7 Dr. Sartin brings his TCPA claim s on behalf of him self and a proposed class consisting of sim ilarly 2 3 4 5 6 7 R. Doc. 1 at 2 ¶ 5. R. Doc. 1-1 at 1. Id. Id. (em phasis in the original). R. Doc. 1 at 5 ¶ 13, 14. R. Doc. 1. 2 situated fax recipients. On May 3, 20 16, defendants filed their first m otion to dism iss Dr. Sartin’s com plaint for lack of Article III standing.8 Because Dr. Sartin’s com plaint failed to allege any facts indicating that the defendants’ fax caused Dr. Sartin a concrete injury in fact, the Court granted defendants’ m otion on J uly 5, 20 16.9 The dism issal was without prejudice, and Dr. Sartin was granted leave to file an am ended com plaint. 10 Dr. Sartin filed an am ended com plaint alleging that the unsolicited fax caused Dr. Sartin and the class m em bers to suffer statutory dam ages, and caused Dr. Sartin to “waste[] valuable tim e 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.”11 Additionally, Dr. Sartin alleges that the fax tied up his fax line that he relies on for his business.12 In response, defendants again filed a 12(b)(1) m otion to dism iss for lack of standing, or in the alternative, m otion to strike Dr. Sartin’s class allegations under Rule 12(f). 8 9 10 11 12 R. Doc. 5. R. Doc. 19. Id. at 11-12. R. Doc. 25 at 3 ¶ 5. Id. 3 II. LEGAL STAN D ARD A standing m otion challenges the Court’s subject m atter jurisdiction, and it is governed by Federal Rule of Civil Procedure 12(b)(1). “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 Now ak v. Ironw orkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996)). A district court m ay 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) (citation om itted). Furtherm ore, plaintiff bears the burden of dem onstrating that subject m atter jurisdiction exists. See Paterson v. W einberger, 644 F.2d 521, 523 (5th Cir. 1981). Defendants offer no evidence by affidavit or otherwise to support their argum ent that plaintiff lacks standing. 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.” Id.; see also Russell v. Choicepoint Servs., Inc., 30 2 F. Supp. 4 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 The TCPA m akes it unlawful to use a fax m achine to send an unsolicited advertisem ent. 47 U.S.C. § 227(b)(1)(C).13 It also provides a private right of action, which perm its any “person or entity” to bring an action 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). As the Eighth Circuit recently explained, the TCPA’s plain term s authorize statutory dam ages for each sending of an unsolicited fax advertisem ent. Sandusky W ellness Ctr., LLC 13 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.” Phy sicians 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. § 227(b)(1)(C). 5 v. Medtox Sci., Inc., 821 F.3d 992, 997 (8th Cir. 20 16) (citing Creative Montessori Learning Ctrs. v. Ashford Gear LLC, 662 F.3d 913, 914 (7th Cir. 20 11)). A. Article III Stan d in g Defendants first contend that Dr. Sartin lacks standing to bring his claim s. 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 en ts: (1) the plaintiff m ust have suffered an “injury-in-fact,” which is an “actual or im m inent” invasion of a legally protected interest that is “concrete an d particularized”; (2) the injury m ust be “fairly traceable” to the challenged conduct of the defendant; and (3) 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. Spokeo, Inc. v. Robins, 578 U.S. _ _ _ , _ _ _ , 136 S. Ct. 1540 , 1547 (20 16). As the Suprem e Court recently em phasized in Spokeo, supra, the Constitution m andates an injury in fact, and “Congress cannot erase Article III’s standing requirem ents by statutorily granting the right to sue to a 6 plaintiff who would not otherwise have standing.” Spokeo, 136 S. Ct. at 154748 (20 16) (quoting Raines v. By rd, 521 U.S. 8 11, 820 n. 3 (1997)). Congress m ay, however, “create a statutory right or entitlem ent[,] 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. Seldin, 422 U.S. 490 , 514 (1975) (citing Linda R.S. v. Richard D., 410 U.S. 614, 617 n. 3 (1973)). In other words, “[t]he actual or threatened injury required by Art[icle] III m ay exist solely by virtue of ‘statutes creating legal rights, the invasion of which creates standing.’” Id. at 50 0 (quoting Linda R.S., 410 U.S. at 617 n. 3). Nonetheless, Spokeo held that an injury in fact does not autom atically exist “whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.” Spokeo, 136 S. Ct. at 1549. Article III requires a concrete injury even in the context of a statutory violation. Id. Therefore, a plaintiff cannot “allege a bare procedural violation, divorced from any concrete harm , and satisfy the injury-in-fact requirem ent . . . .” Id. Instead, a plaintiff suing to vindicate a statutory right m ust identify a concrete and particularized injury that he or she suffered as a result of the statutory violation. Id.; see also Palm Beach Golf Ctr.-Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245, 1251 (11th Cir. 20 15) 7 (“[W]here a statute confers new legal rights on a person, that person will have Article III standing to sue where the facts establish a concrete, particularized, and personal injury to that person as a result of the violation of the newly created legal rights.”). Relying on standing doctrine and the Suprem e Court’s recent decision in Spokeo, this Court dism issed Dr. Sartin’s initial com plaint because he failed to allege how defendants’ purported violation of the TCPA caused him concrete harm . Now, Dr. Sartin’s am ended com plaint alleges that the defendants’ TCPA violation caused him and other class m em bers injury by wasting their tim e, taking their tim e away from incom e producing activities, and tying up fax m achines relied on in their businesses. Defendants contend that despite these additions in his am ended com plaint, Dr. Sartin still alleges only a bare violation of the TCPA and fails to establish a judicially cognizable injury in fact. In m aking it unlawful to use a fax m achine to send an unsolicited advertisem ent, the TCPA vests all persons with a legal right to be free from the intrusion of unsolicited fax advertisem ents. Davies v. W .W . Grainger, Inc., No. 13-3546, 20 16 WL 1298667, at *2 (N.D. Ill. Apr. 4, 20 16) (“[T]he relevant legal right created by Congress under the TCPA is the right to be free from fax advertisem ents whose opt-out notices are not TCPA-com pliant.”); 8 see also Palm Beach, 781 F.3d at 1251 (noting that statutory rights “m ay be inferred from conduct prohibited by [the statute]”); Jam ison v. Esurance Ins. Servs., Inc., No. 15-2484, 20 16 WL 320 646, at *2 (N.D. Tex. J an. 27, 20 16) (finding that the TCPA’s prohibition on autom atic dialing creates a legal right to be free of such calls). At issue is whether defendants’ alleged violation of this statutory right caused Dr. Sartin a concrete and particularized injury in fact. The Fifth Circuit has not yet addressed what type of injury an individual m ust suffer to have Article III standing to sue for a TCPA violation. Other courts have addressed the type of injuries at issue here. In Palm Beach, the Eleventh Circuit held that Article III does not require proof of receipt of the allegedly unlawful fax. 781 F.3d at 1251. It reasoned that, regardless of whether faxes are printed or viewed, an unsolicited fax creates “a concrete and personalized injury in the form of the occupation of [one’s] fax m achine for the period of tim e required for the electronic transm ission of the data . . . .” Id. This occupation of a plaintiff’s fax m achine for a period of tim e “is am ong the injuries intended to be prevented by the statute and is sufficiently personal or particularized to [plaintiff] as to provide standing.” Id. at 1252. Further, in Am erican Copper & Brass, Inc. v. Lake City Industrial 9 Products, Inc., the Sixth Circuit reasoned that “unsolicited fax advertisem ents im pose costs on all recipients, irrespective of ownership and the cost of paper and ink, because such advertisem ents w aste the recipients’ tim e and im pede the free flow of com m erce.” Id. (em phasis added); see also Arnold Chapm an & Paldo Sign & Display Co. v. W agener Equities Inc., 747 F.3d 489, 491-92 (7th Cir. 20 14) (stating that “[w]hether or not the user of the fax m achine is an owner, he m ay be annoyed, distracted, or otherwise inconvenienced if his use of the m achine is interrupted by unsolicited faxes to it . . . .”). The Seventh Circuit em ployed sim ilar reasoning in Ira Holtzm an, C.P.A. v. Turza, 728 F.3d 682 (7th Cir. 20 13). Although not ruling on the issue of standing, the court explained that “[e]ven a recipient who gets the fax on a com puter and deletes it without printing [the fax] suffers som e loss: the value of the tim e necessary to realize that the inbox has been cluttered by junk.” Id. at 684. Consistent with the broad definition of cognizable harm in Palm Beach, Am erican Copper, and Holtzm an, a num ber of district courts have found that the wasted tim e associated with receipt of an unlawful fax or telephone call suffices to confer standing to sue under the TCPA. See Leung v. XPO Logistics, Inc., No. 15-0 3877, 20 15 WL 10 433667, at *4 (N.D. Ill. Dec. 9, 20 15) (collecting cases); Martin v. Leading Edge Recovery Sols., LLC, No. 10 11-5886, 20 12 WL 3292838 , at *3 (N.D. Ill. Aug. 10 , 20 12) (“Plaintiffs . . . were directly injured by defendants’ violations of the TCPA because they had to spend tim e tending to unwanted calls and their cell phone m inutes were depleted.”); Kane v. N at’l Action Fin. Servs., Inc., No. 11-1150 5, 20 11 WL 60 1840 3, at *5 (E.D. Mich. Nov. 7, 20 11) (finding that plaintiff’s allegation that he received several hundred phone calls on his cell phone was sufficient to establish standing to bring claim under TCPA, regardless of whether he incurred charges for any of the calls); King v. Tim e W arner Cable, 113 F. Supp. 3d 718, 728 (S.D.N.Y. 20 15) (sam e). Both sides rely on non-precedential, post-Spokeo TCPA cases to support their argum ents for or against standing. See Rogers v. Capital One Bank (USA), N.A., No. 15-40 16, 20 16 WL 3162592, at *2 (N.D. Ga. J une 7, 20 16) (finding injury in fact based on unwanted calls to TCPA plaintiffs’ personal cell phones because phones were unavailable for use during the unwanted calls); Booth v. Appstack, Inc., No. 13-1533, 20 16 WL 30 30 256, at *5 (W.D. Wa. May 25, 20 16) (sam e); Brodsky v. Hum anaDental Ins. Co., No. 10 -3233, 20 16 WL 5476233, at *10 -11 (N.D. Ill. Sept. 29, 20 16) (finding that TCPA plaintiffs had standing because unwanted faxes occupied their fax m achines and wasted their tim e). But see Transcript of Hearing on Motion to Dism iss at 22-26, Susinno v. W ork Out W orld, Inc., No. 15-5881 (D.N.J . 11 Aug. 1, 20 16), ECF No. 31 (granting m otion to dism iss after finding that TCPA plaintiff had not suffered an injury in fact from only one unwanted cell phone call); Rom ero v. Dep’t Stores N at’l Bank, No. 15-193, 20 16 WL 41840 99, at *4-6 (S.D. Cal. Aug. 5, 20 16) (finding no standing because plaintiff’s alleged injury was not connected to the alleged TCPA violation). Of these, the best reasoned and the m ost clearly analogous is Brodsky , which is the only case that involved faxes. In Brodsky , the court analyzed the plaintiff’s alleged harm in light of Spokeo and determ ined that the plaintiff’s alleged injuries of wasted tim e and the occupation of his fax line and m achine were sufficiently particularized and concrete to satisfy Article III’s injury-in-fact requirem ent. Brodsky , 20 16 WL 5476233, at *10 -11. In m aking this determ ination, the Brodsky court found that the alleged injuries were tangible, but even if they were intangible, they satisfied Spokeo. Id. at *11. The Brodsky court noted that Spokeo instructed courts to look to the “‘judgm ent’ of Congress” in ascertaining whether an intangible harm constitutes an injury in fact. Id. at *10 (quoting Spokeo, 136 S. Ct. at 1549). Following Spokeo’s instructions, the Brodsky court found that the “Congressional judgm ent sim ilarly suggests” that the plaintiff had standing, since Congress “enacted the TCPA’s restrictions on unwanted faxes ‘to protect citizens from the loss of the use of 12 their fax m achines during the transm ission of fax data.’” Id. at *11 (quoting Palm Beach, 781 F.3d at 1252). The Court finds the reasoning of Brodsky to be persuasive, especially in light of the legislative history of the TCPA. See S. Rep. No. 10 2-178, 1991 WL 211220 , at 2 (1991) as reprinted in 1991 U.S.C.C.A.N. 1968, 1969 (noting that consum ers have identified, inter alia, wasted tim e and tied up m achines as problem s caused by unsolicited calls and faxes; H.R. Rep. 10 2-317, 1991 WL 24520 1, at 10 (1991) (noting that unsolicited faxes are problem atic because fax m achines are “unavailable for legitim ate business m essages while processing and printing the junk fax”). Thus, Dr. Sartin’s alleged injuries are of the type that the TCPA sought to redress, and Congressional judgm ent supports finding that these alleged injuries satisfy Article III’s requirem ents. See W endt v. 24 Hour Fitness USA, Inc., 821 F.3d 547, 552 (5th Cir. 20 16) (noting that where “plaintiff’s claim of injury in fact depends on legal rights conferred by statute, it is the particular statute and the rights it conveys that guide the standing determ ination”). Defendants’ additional argum ent that because Dr. Sartin “was not the recipient or prim ary addressee of the [f]ax, and the [f]ax was not sent to a phone line he owned or to which he subscribed,”14 he lacks standing, is 14 R. Doc. 26-1 at 7. 13 without m erit. Plaintiff’s am ended com plaint alleges that the fax was sent to him and that it was his fax m achine. At this stage, the Court accepts Dr. Sartin’s factual allegations as true. Further, ownership of the fax m achine is not required to bring a TCPA claim . See, e.g., Am erican Copper, 757 F.3d at 544; Holtzm an, 728 F.3d at 684; Arnold Chapm an, 747 F.3d at 491-92; Sandusky , 821 F.3d at 997. Therefore, the Court rejects this argum ent. Because Dr. Sartin’s am ended com plaint alleges judicially cognizable injuries that are traceable to defendants and can be rem edied by a ruling in Dr. Sartin’s favor, Dr. Sartin has standing and defendants’ m otion to dism iss is denied. B. Mo tio n to Strike Clas s Alle gatio n s Next, defendants ask the Court to strike Dr. Sartin’s class allegations under Federal Rule of Civil Procedure 12(f). Dr. Sartin defines the putative class as follows: [A]ll persons and entities, who within four years of the filing of this Com plaint, received facsim ile transm issions sent by Defendants with content that discusses, describes [or] 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).15 Defendants challenge Dr. Sartin’s class definition on two grounds. Neither 15 R. Doc. 25 at 2 ¶ 3. 14 is persuasive. First, defendants argue that Dr. Sartin is not a m em ber of the proposed class because defendants’ fax was allegedly “sent,” not to Dr. Sartin, but to the subscriber of the fax num ber, East J efferson General Hospital. While defendants are correct that a plaintiff cannot lead a class to which he or she does not belong, see, e.g., Gen. Tel. Co. of Sw . v. Falcon, 457 U.S. 147, 156 (1982), the pleadings reveal no such problem here. Dr. Sartin alleges that he received an unsolicited fax advertisem ent from defendants. The fax, which is attached as an exhibit to the com plaint, is addressed to both “East J efferson General Hospital” and “Dr. Barry Sartin.”16 The m essage on the fax’s cover sheet begins “Dear Dr. Sartin.”17 Because the fax appeared at Dr. Sartin’s workplace and was addressed to his attention, Dr. Sartin has plausibly alleged that he “received” a fax “sent” by defendants. Although defendants assert that a fax is “sent” only to the subscriber of the line,18 they provide neither case law nor argum ent to support this counter-intuitive position. Cf. Merriam -W ebster Dictionary Online, www.m erriam - webster.com (last visited Decem ber 9, 20 16) (defining “send” as “to cause (a 16 R. Doc. 1-1 at 1. Id. 18 R. Doc. 26-1 at 10 (arguing that “[a] class defined as those to whom faxes were ‘sent’ will necessarily exclude potential class m em bers, including Plaintiff.”) 15 17 letter, an e-m ail, a package, etc.) to go to or be carried from one place or person to another.”).19 Further, the sole case cited by defendants in support of their argum ent that Dr. Sartin is not a m em ber of this class is Edw ards v. Oportun, Inc., No. 16-519, 20 16 WL 420 3853, at *3 (N.D. Ca. J une 14, 20 16). Although the court in Edw ards struck class allegations in a TCPA case, the plaintiff there sought to define the class as those who “received calls ‘m ade by or on behalf of Defendant in order to prom ote its products or services.’” Id. (quoting plaintiff’s First Am ended Com plaint). Because the plaintiff in Edw ards did not allege that he ever received calls m ade by the defendant to prom ote its products or services, the court granted the m otion to strike with leave to am end to change the class definition. Id. Dr. Sartin, on the other hand, has alleged facts indicating he is a m em ber of the class, i.e., that he received a fax 19 To the extent defendants intend to argue that ownership of the affected fax m achine is a statutory requirem ent to bringing a junk fax suit under the TCPA, this argum ent also fails. As a num ber of courts have held, the TCPA “contains no term s that would lim it violation claim s to those who own m achines assaulted by junk faxes.” Chapm an v. W agener Equities, Inc., No. 0 9-0 7299, 20 14 WL 540 250 , at *4 (N.D. Ill. Feb. 11, 20 14) (approving class definition including “all persons who . . . were successfully sent a fax”); see also Sandusky , 821 F.3d at 997 (noting that the TCPA does not require ownership of the fax m achine); Bridgeview Health Care Ctr. Ltd. v. Clark, No. 0 9- 560 1, 20 11 WL 4628744, at *3 (N.D. Ill. Sept. 30 , 20 11) (finding that class definition “language regarding ownership of the receiving m achine is not required by the Act”). 16 from defendants with content that discusses and prom otes defendants’ product. Second, defendants argue that Dr. Sartin’s proposed class definition fails to establish an ascertainable group, whose boundaries can be defined and policed in an adm inistratively feasible way. To m aintain a class action, the proposed class m ust be adequately defined and clearly ascertainable by reference to objective criteria. Union Asset Mgm t. Holding A.G. v. Dell, Inc., 669 F.3d 632, 639 (5th Cir. 20 12) (quoting DeBrem aecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970 )). The class definition m ust be sufficiently definite in that it is adm inistratively feasible for the court to determ ine whether a particular individual is a m em ber. Mike v. Safeco Ins. Co. of Am ., 223 F.R.D. 50 , 52-53 (D. Conn. 20 0 4) (citing Wright & Miller, 7A Federal Practice and Procedure, § 1760 (2d ed.)). Nonetheless, “the court need not know the identity of each class m em ber before certification; ascertainability requires only that the court be able to identify class m em bers at som e stage of the proceeding.” Frey v. First N at. Bank Sw ., 60 2 F. App’x 164, 168 (5th Cir. 20 15). Thus, “if the general outlines of the m em bership of the class are determ inable at the outset of the litigation, a class will be deem ed to exist.” Lee v. Am . Airlines, Inc., No. 0 1-1179, 20 0 2 WL 31230 80 3, at *4 (N.D. Tex. Sept. 30 , 20 0 2) (quoting Wright & Miller, 7A Federal Practice and 17 Procedure, § 1760 (2d ed.)). Dr. Sartin’s proposed class m eets the ascertainability requirem ent. In their briefs, defendants an d Dr. Sartin both refer to fax logs or fax lists showing the num bers to which defendants sent fax transm issions.20 As Dr. Sartin correctly notes, fax logs provide objective data that m ake it possible to ascertain which entities and/ or individuals received the faxes at issue. See, e.g., Sandusky , 8 21 F.3d at 997 (“[F]ax logs showing the num bers that received each fax are objective criteria that m ake the recipient clearly ascertainable.”); Am . Copper, 757 F.3d at 545 (“[T]he record in fact dem onstrates that fax num bers are objective data satisfying the ascertainability requirem ent.”); Avio, Inc. v. Alfoccino, Inc., 311 F.R.D. 434, 442 (E.D. Mich. 20 15) (“Plaintiff possesses a list of num bers to which the fax was sent, and it is certainly feasible to determ ine which individuals and businesses received the faxes at those num bers.”). As this litigation proceeds, the data contained in the fax logs will perm it the Court and the parties to objectively determ ine whether potential class m em bers fall within the boundaries of Dr. Sartin’s class. This is true even if, as Dr. Sartin alleges, the class encom passes a substantial num ber of individuals and entities.21 See 20 R. Doc. 26-1 at 10 -12; R. Doc. 30 at 12-13. Doc. 25 at 2 ¶ 4. 18 21 R. Arnold Chapm an, 747 F.3d at 492 (affirm ing class certification in a TCPA class action involving 10 ,145 persons); St. Louis Heart Ctr., Inc. v. Vein Centers For Excellence, Inc., No. 12-174, 20 13 WL 6498245, at *4 (E.D. Mo. Dec. 11, 20 13) (finding that “including in the class all persons who were sent a fax . . . does not render the class unascertainable or overbroad.”). Defendants correctly note that class m em bership cannot be ascertained from the fax logs alone. Because individual faxes m ay have been sent to m ultiple recipients—including the fax allegedly sent to Dr. Sartin, which was addressed to both Dr. Sartin and Eastern J efferson General Hospital—single entries on defendants’ fax logs m ight in fact signify m ultiple potential class m em bers. Nonetheless, Rule 23 does not require that all m em bers of a class be instantly determ inable without any individual exam ination; it need only be “adm inistratively feasible for the court to determ ine whether a particular individual is a m em ber of the proposed class.” Young v. N ationw ide Mut. Ins. Co., 693 F.3d 532, 537-38 (6th Cir. 20 12) (em phasis added). Although certain faxes shown in the logs m ay have been sent to m ultiple recipients, class m em bership can feasibly be determ ined by reviewing the actual faxes to determ ine the individuals and entities to whom they were addressed. This straightforward, m echanical procedure can be done without resort to individualized hearings or inquiry 19 into the m erits of each potential class m em ber’s claim s. Thus, Dr. Sartin’s proposed class does not present the type of adm inistrative quandaries that have caused other classes to fail for lack of ascertainability. Cf. Barasich v. Shell Pipeline Co., LP, No. 0 5-4180 , 20 0 8 WL 6468611, at *4 (E.D. La. J une 19, 20 0 8) (denying class certification when the determ ination of whether an individual was a class m em ber could not be m ade without inquiring into the m erits of each person’s claim ); McGuire v. Int'l Paper Co., No. 92-593, 1994 WL 261360 , at *5 (S.D. Miss. Feb. 18, 1994) (finding proposed subclass untenable because determ ining m em bership would require prospective subclass m em bers to subm it to blood tests and depositions and would necessitate “an inestim able num ber of individual hearings”). Defendants’ argum ent that this type of review necessarily creates “insurm ountable adm inistrative problem s”22 has been consistently rejected by other courts in the TCPA context. See, e.g., Sandusky , 821 F.3d at 997; Am . Copper, 757 F.3d at 545; Avio, Inc., 311 F.R.D. at 442; Brodsky , 20 16 WL 5476233, at *9 (noting that defendant’s adm inistrative concerns over determ ining all of the fax recipients can be addressed through case m anagem ent techniques and do not warrant denial of class certification). As in Brodsky , any adm inistrative concerns that defendants have at this stage 22 R. Doc. 26-1 at 11. 20 in the litigation can be addressed in future case m anagem ent orders and do not warrant striking Dr. Sartin’s class allegations. IV. CON CLU SION For the foregoing reasons, the Court DENIES defendants’ m otion to dism iss for lack of Article III standing, as well as defendants’ m otion strike plaintiff's class allegations. 28th New Orleans, Louisiana, this _ _ _ _ _ day of Decem ber, 20 16. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 21

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