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Zauderer v. Cirrus Consulting Group (USA), Inc.

United States District Court, D. Massachusetts

July 14, 2017

MARC J. ZAUDERER, DMD, a Massachusetts resident, individually and as the representative of a class of similarly-situated persons, Plaintiff,


          M. Page Kelley United States Magistrate Judge

         I. Introduction.

         Plaintiff Marc Zauderer filed this putative class action against defendants Cirrus Consulting Group (USA) Inc., Cirrus Consulting Group Inc., Jeremy Behar, Joanna Behar, Alain Sabbah, and John Does 1-5. (#11.)[1] Zauderer alleges that defendants violated the Telephone Consumer Protection Act of 1991 (TCPA), as amended by the Junk Fax Prevention Act of 2005, 47 U.S.C. § 227 et seq., by sending plaintiff an “unsolicited advertisement” via fax. Id.

         Presently before the court is defendants' motion to dismiss for lack of standing (#26)[2]; plaintiff has responded in opposition (#40); and defendants have replied (#45).

         II. The Facts.

         The facts as set forth in the amended complaint are as follows. Defendant Cirrus Consulting Group (USA), Inc., is a Delaware corporation, and Cirrus Consulting Group Inc., is a Canadian Corporation with its principal place of business in Toronto, Ontario, Canada. (#11 ¶¶ 8-9.) On April 10, 2014, defendants transmitted an unsolicited fax promoting an upcoming seminar that was to be held on May 20, 2014, see #11-1, to plaintiff by telephone fax machine. (#11 ¶ 14.) Defendants allegedly sent the same and other unsolicited faxes to more than forty additional recipients. Id. ¶ 17. Zauderer contends that these unsolicited faxes caused him and other recipients damages that include: (1) loss of paper and toner consumed in the printing of defendants' faxes; (2) occupation of telephone lines and fax machines; (3) waste of time receiving, reviewing and routing faxes; and (4) interruption of the privacy interest to be left alone. Id. ¶ 34.

         III. Standard of Review.

         “[S]tanding is a threshold issue determining whether the court has the power to hear the case, and whether the putative plaintiff is entitled to have the court decide the merits of the case.” Libertad v. Welch 53 F.3d 428, 445 (1st Cir. 1995) (citing United States v. AVX Corp., 962 F.2d 108, 113 (1st Cir. 1992)). If the plaintiff lacks standing to bring a matter before the court, the court lacks jurisdiction to rule on the merits of the case. Id. at 436. To satisfy Article III standing, “[t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, - U.S. -, 136 S.Ct. 1540, 1547 (2016).

         Pursuant to Rule 12(b)(1), Fed. R. Civ. P., a defendant may move to dismiss an action based on lack of federal subject matter jurisdiction.[3] “‘Because federal courts are courts of limited jurisdiction, federal jurisdiction is never presumed.' The party asserting jurisdiction has the burden of demonstrating the existence of federal jurisdiction.” Fabrica de Muebles J.J. Alvarez, Incorporado v. Inversiones Mendoza, Inc., 682 F.3d 26, 32 (1st Cir. 2012) (quoting Viqueira v. First Bank, 140 F.3d 12, 16 (1st Cir. 1998) (internal citation omitted)). Once a defendant challenges the jurisdictional basis for a claim under Rule 12(b)(1), the plaintiff bears the burden of proving jurisdiction. Thomson v. Gaskill, 315 U.S. 442, 446 (1942); Johansen v. U.S., 506 F.3d 65, 68 (1st Cir. 2007).

         In ruling on a motion to dismiss for lack of jurisdiction, the court must “‘credit the plaintiff's well-pled factual allegations and draw all reasonable inferences in the plaintiff's favor.'” Sanchez ex rel. D.R.-S. v. U.S., 671 F.3d 86, 92 (1st Cir. 2012) (quoting Merlonghi v. United States, 620 F.3d 50, 54 (1st Cir. 2010)). The “court may also ‘consider whatever evidence has been submitted, such as the depositions and exhibits submitted.'” Merlonghi v. United States, 620 F.3d 50, 54 (1st Cir. 2010) (quoting Aversa v. United States, 99 F.3d 1200, 1210 (1st Cir. 1996)); Carroll v. U.S., 661 F.3d 87, 94 (1st Cir. 2011) (“In evaluating a motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction, we construe plaintiffs' complaint liberally and ordinarily may consider whatever evidence has been submitted, such as .. . depositions and exhibits.” (alteration of original) (internal citation and quotation marks omitted)). That being said, a plaintiff cannot assert a proper jurisdictional basis “merely on ‘unsupported conclusions or interpretations of law.'” Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995), cert. denied, 515 U.S. 1144 (1995) (quoting Washington Legal Foundation v. Massachusetts Bar Foundation, 993 F.2d 962, 971 (1st Cir. 1993)); Johansen, 506 F.3d at 68.

         IV. Discussion.

         A. The TCPA.

         “Congress passed the TCPA in 1991, prompted by [v]oluminous consumer complaints about abuses of telephone technology.” Physician's Healthsource, Inc. v. Vertex Pharm. Inc., Civil Action No. 15-11517-JCB, 2017 WL 1534221, at *6 (D. Mass. Mar. 28, 2017) (alteration of original) (internal citation omitted). The TCPA, in pertinent part, makes it “unlawful for any person within the United States . . . to use any facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement.” 47 U.S.C § 227(b)(1)(c). The purpose of the TCPA was to “ban[ ] certain practices invasive of privacy” and to “address the costs - including paper, ink and time - of receiving unwanted ‘junk' faxes.” Physician's Healthsource, Inc., 2017 WL 1534221, at *6 (internal citation omitted). The TCPA was also meant to prevent the costs of “tying up fax machines while processing these junk faxes.” Id.

         The TCPA provides a private right of action that permits any “person or entity” who receives unsolicited advertisements to: (1) enjoin a violation of the Act; (2) recover for actual monetary loss from such a violation or to receive statutory damages of $500 per violation, whichever is greater; or (3) pursue both injunctive and ...

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