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Scoma Chiropractic, P.A. v. Jackson Hewitt Inc.

United States District Court, M.D. Florida, Fort Myers Division

December 11, 2017

SCOMA CHIROPRACTIC, P.A., a Florida corporation, individually and as the representative of a class of similarly-situated persons, Plaintiff,

          OPINION AND ORDER [1]


         This matter comes before the Court on Defendant Jackson Hewitt Inc.'s Motion to Dismiss Second Amended Class Action Complaint (Doc. 75), to which Scoma timely filed a Memorandum in Opposition (Doc. 86), Jackson Hewitt timely filed a Reply (Doc. 90), and Scoma timely filed a Sur-Reply (Doc. 91); and Defendants Astro Tax Services LLC and Naveen Mathur's Motion to Dismiss Second Amended Class Action Complaint (Doc. 77), to which Scoma timely filed a Memorandum in Opposition (Doc. 87). The motions are now fully briefed and ripe for the Court's review. For the following reasons, the motions to dismiss are denied.


         This is a junk fax case. Scoma sued on February 10, 2017, under the Telephone Consumer Protection Act of 1991, as amended by the Junk Fax Prevention Act of 2005 (“TCPA”), 47 U.S.C. § 227. Scoma alleges that, on or about December 23, 2016, Defendants transmitted by fax machine an unsolicited advertisement to Scoma. (Doc. 69). The fax consists of a one-page document describing a product of “Jackson Hewitt Tax Services.” (Doc. 69-1 at 2). Scoma alleges that it had not given Defendants permission or express invitation to send the fax, and that Defendants faxed the same and other unsolicited facsimiles to it and others without the opt-out language and notice required by 47 C.F.R. § 64.1200.

         Following the first round of motions to dismiss, the Court granted the defendants' motions, dismissed without prejudice the prior complaint, and instructed Scoma to file a second amended complaint by August 14, 2017. (Doc. 63). Scoma's Second Amended Class Action Complaint (“SAC”) (Doc. 69) was timely filed.


         When reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must view the allegations in the light most favorable to the plaintiff and accept the allegations of the complaint as true. Speaker v. U.S. Dep't of Health & Human Servs., 623 F.3d 1371, 1379 (11th Cir. 2010). To avoid dismissal, a complaint must contain sufficient factual allegations to “state a claim to relief that is plausible on its face” and “raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (alteration in original) (citations and quotation marks omitted).


         A. Violation of the TCPA

         The SAC alleges that Defendants violated the TCPA, which prohibits using “any telephone facsimile machine . . . to send, to a telephone facsimile machine, an unsolicited advertisement” unless certain criteria are met, by sending the unsolicited fax on December 23, 2016 to Scoma's fax number. 47 U.S.C. § 227(b)(1)(C). To state a claim for violation of the TCPA, a plaintiff must allege: (1) the fax is an advertisement; (2) the fax was unsolicited; and (3) the defendant(s) sent the fax to a telephone facsimile machine using a telephone facsimile machine, computer, or other device. 47 U.S.C. §227(b)(1)(C).

         In dismissing the prior complaint, the Court determined that Scoma's allegations satisfied the first and second elements by sufficiently alleging that the fax was an advertisement and that the fax was unsolicited. See Doc. 63 at 4;47 U.S.C. § 227(b)(1)(C). The Court held that the complaint failed, however, to allege with specificity which Defendant was the “sender” of the fax within the meaning of the TCPA because it improperly lumped the Defendants together; failed to identify and explain the relationship between them; and failed to provide virtually any factual support. See Doc. 63 at 4-7.

         Jackson Hewitt contends that the SAC fails to remedy the prior defects. It again argues that the SAC fails to provide notice of wrongdoing, in violation of Federal Rule of Civil Procedure 8, and fails to allege facts as to each Defendant that would establish Jackson Hewitt's liability. Astro Tax Services LLC (“Astro”) and Naveen Mathur make the same arguments. By contrast, Scoma contends that the addition of more facts, a detailed explanation of the relationship between the Defendants, and specific allegations as to each Defendant have addressed the prior deficiencies. The Court agrees. For the same reasons stated in the Court's prior Order, the allegations in the SAC satisfy the first two elements of a claim for violation of the TCPA. Accordingly, the Court turns its attention to the third element.

         A “sender” within the meaning of the TCPA is the “person or entity on whose behalf a facsimile unsolicited advertisement is sent or whose goods or services are advertised or promoted in the unsolicited advertisement.” 47 C.F.R. § 64.1200(f)(10). Here, the SAC still contains allegations directed at “Defendants” collectively and generally. See Doc. 69 ¶¶ 19, 21, 23, 25, 40. However, unlike the prior complaint, the SAC also contains allegations specific to each Defendant, see Doc. 69 ¶¶ 17-18, and describes in detail the relationship between the Defendants, supplemented by citations to the Franchise Agreement attached to the SAC (Doc. 69 ¶¶ 11-18). According to Scoma, with support from the Franchise Agreement, advertising was done by Astro Tax and Mathur on behalf of Jackson Hewitt, and the advertisements featured Jackson Hewitt's goods or services. These allegations track what the statute defines as a “sender” and are enough to rise the possibility of relief above the speculative level. See, e.g., Bais Yaakov v. Varitronics, LLC, Civil No. 14-5008 ADM/FLN, 2015 WL 1529279, at *5 (D. Minn. Apr. 3, 2015) (finding similar “on whose behalf” allegations as to the sender of the fax, “contextualized and colored by the Dealership Agreements” akin to the Franchise Agreement cited here, were sufficiently plausible to satisfy pleading requirements); Vinny's Landscaping, Inc. v. United Auto Credit Corp., 207 F.Supp.3d 746, 747, 753 (E.D. Mich. 2016) (court could infer plausibility where, despite fax not mentioning two of the named defendants, the plaintiff alleged the specific business relationship among the three defendants in addition to general allegations regarding the conduct of “all defendants”).

         The allegations in this case are also distinguishable from those in Arkin v. Innocutis Holdings, LLC, 188 F.Supp.3d 1304, 1310 (M.D. Fla. 2016), in which the court held that allegations that a defendant received revenue from the product's sale, without more, were insufficient to state a plausible claim this defendant was a “sender” of the fax under the TCPA, and Schwanke v. JB Med. Mgmt. Solutions, Inc., No. 5:16-cv-597-Oc-30PRL, 2017 WL 78727, at *4 (M.D. Fla. Jan. 9, 2017), in which the court dismissed similar TCPA allegations for failing to state a claim where the complaint failed to differentiate between the conduct of each defendant. Here, the additional factual allegations more closely align this case with those cited by Scoma in which courts have found that the allegations satisfied the plausibility standard and denied motions to dismiss. See, e.g., JWD Auto., Inc. v. DJM Advisory Grp. LLC, 218 F.Supp.3d 1335, 1341 (M.D. Fla. Nov. 21, 2016) (finding complaint sufficiently stated a claim where the fax at issue advertised the services of the named underwriter defendants); Scoma Chiropractic, P.A. v. Dental Equities, LLC, 232 F.Supp.3d 1201, 1203, 1206 (M.D. Fla. 2017) (rejecting similar ...

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