United States District Court, D. Massachusetts
MARC J. ZAUDERER, DMD, a Massachusetts resident, individually and as the representative of a class of similarly-situated persons, Plaintiff,
CIRRUS CONSULTING GROUP (USA), INC., a Delaware corporation, CIRRUS CONSULTING GROUP INC., a Canadian corporation, JEREMY BEHAR, JOANNA BEHAR, ALAIN SABBAH and JOHN DOES 1-5, Defendants.
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO
DISMISS FOR LACK OF STANDING (#26).
Page Kelley United States Magistrate Judge
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.) 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.
before the court is defendants' motion to dismiss for
lack of standing (#26); plaintiff has responded in opposition
(#40); and defendants have replied (#45).
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. ¶
Standard of Review.
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).
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. “‘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).
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
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.
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 ...