Bais Yaakov of Spring Valley v. Alloy, Inc.

936 F.Supp.2d 272

BAIS YAAKOV OF SPRING VALLEY, on behalf of itself and all others similarly situated, Plaintiff,

v.ALLOY, INC. and Channel One, LLC, Defendants.

No. 12–CV–581 (CS).

United States District Court, S.D. New York.

March 28, 2013.

Aytan Bellin, Bellin & Associates LLC, White Plains, NY, for Plaintiff.

Suzanna Marie Meyers Morales, Lathrop & Gage LLP, New York, NY, for Defendants.

Blaine Kimrey, Lathrop & Gage LLP, Chicago, IL, for Defendants.

OPINION AND ORDER

SEIBEL, District Judge.

Before the Court is the motion of Defendants Alloy, Inc. and Channel One, LLC to dismiss the Complaint (“Compl.”) of Plaintiff Bais Yaakov of Spring Valley for violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, and New York General Business Law (“GBL”) § 396–aa.¹ (Doc. 20.) For the reasons stated below, Defendants' motion is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

I assume the facts (but not the conclusions) as alleged in the Complaint to be true. This case is a putative class action arising out of faxes that Channel One, LLC.² (“Channel One”) sent to Plaintiff and others similarly situated, allegedly in violation of the TCPA, 47 U.S.C. § 227, and GBL § 396–aa, which prohibit the unsolicited transmission of fax advertisements. Channel One is a leading television news network for teens nationwide. (Compl.¶ 10.) Channel One provides a free television news program to schools, and its service is financed by two minutes of commercials in the daily ten-minute news program. ( Id. Ex. A, at BY–000044.)

Plaintiff alleges at least eighteen specific instances between February 19, 2008 and February 16, 2011 when Defendants sent unsolicited fax advertisements to Plaintiff, and alleges various other unspecified instances thereafter. ( Id. ¶ 12.) Plaintiff alleges that eight of the faxes (the “Group One faxes”) did not contain opt-out notices as required by 47 U.S.C. § 227(b)(2)(D), 47 C.F.R. § 64.1200(a)(3)(iii), and GBL § 396–aa(2). ( Id. ¶¶ 14, 16.) Plaintiff further alleges that the remaining ten faxes (the “Group Two Faxes”) contained opt-out notices that did not satisfy the requirements of 47 U.S.C. § 227(b)(2)(D), 47 C.F.R. § 64.1200(a)(3)(iii), or GBL § 396–aa(2). ( Id. ¶¶ 15, 17–19.) The opt-out notice on the Group Two faxes states:

TO OPT–OUT OF FUTURE OFFERS, SIMPLY WRITE ‘REMOVE’ AND RETURN THIS PAGE BY FAX TO 770.613.0222 OR CALL ME TOLL FREE AT 1.888.467.3784. THANK YOU!

( Id. ¶ 15.)

Plaintiff seeks to represent three classes of individuals: (A) persons in the United States to whom Defendants sent unsolicited fax advertisements without proper opt-out notices or with opt-out notices that failed to comply with the statutory language (“Class A”); (B) persons in the United States to whom Defendants sent solicited fax advertisements without proper opt-out notices or with opt-out notices that failed to comply with the statutory language (“Class B”); and (C) persons in New York to whom Defendants sent unsolicited fax advertisements without proper opt-out notices or with opt-out notices that failed to comply with the statutory language (“Class C”). ( Id. ¶¶ 39–40.)

In the first two Causes of Action One in the Complaint, Plaintiff seeks statutory damages of no less than $1,500,000 for the “thousands of violations” against Plaintiff and the putative Class A and Class B members, as well as treble damages for each statutory violation if it is found that Defendants acted “knowingly and willfully.” ( Id. ¶¶ 59–61, 63–65.) In the Third Cause of Action, Plaintiff seeks injunctive relief under the TCPA. ( Id. ¶ 68.) Finally, in the Fourth Cause of Action, Plaintiff seeks statutory damages of no less than $300,000 for the unsolicited fax advertisements sent to Plaintiff and the putative Class C members in violation of GBL § 396–aa. ( Id. ¶ 71.)

Defendant has moved to dismiss Plaintiff's Complaint for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6), or in the alternative, to dismiss the Complaint's class action allegations based on the unique language of Section 227(b)(3), which allegedly requires, in this instance, compliance with New York Civil Practice Law and Rules (“CPLR”) § 901(b), which in turn prohibits class action claims for statutory violations. Plaintiff opposes Defendants' motion and argues that Fed.R.Civ.P. 23 should govern whether the suit can proceed as a class action.

II. DISCUSSION

A. Legal Standard

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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.” Id. “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 entitlement 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, 127 S.Ct. 1955 (alteration, citations, and internal quotation marks omitted). While Federal Rule of Civil Procedure 8 “marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, ... it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 556 U.S. at 678–79, 129 S.Ct. 1937.

In considering whether a complaint states a claim upon which relief can be granted, the court “begin[s] by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth,” and then determines whether the remaining well-pleaded factual allegations, accepted as true, “plausibly give rise to an entitlement to relief.” Id. at 679, 129 S.Ct. 1937. Deciding whether a complaint states a plausible claim for relief is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘shown’—‘that the pleader is entitled to relief.’ ” Id. (alteration omitted) (quoting Fed.R.Civ.P. 8(a)(2)).

B. Consideration of Documents Outside the Pleadings

When deciding a motion to dismiss, the Court is entitled to consider:

(1) facts alleged in the complaint and documents attached to it or incorporated in it by reference, (2) documents “integral” to the complaint and relied upon in it, even if not attached or incorporated by reference, (3) documents or information contained in defendant's motion papers if plaintiff has knowledge or possession of the material and relied on it in framing the complaint, (4) public disclosure documents required by law to be, and that have been, filed with the Securities and Exchange Commission, and (5) facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence.

Weiss v. Inc. Vill. of Sag Harbor, 762 F.Supp.2d 560, 567 (E.D.N.Y.2011) (internal quotation marks omitted). A document is considered “integral” to the complaint where the plaintiff has “reli[ed] on the terms and effect of [the] document in drafting the complaint.” Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002) (emphasis omitted). Such reliance “is a necessary prerequisite to the court's consideration of the document on a dismissal motion; mere notice or possession is not enough.” Id.; see Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir.2006) (integraldocuments may include documents partially quoted in complaint or on which plaintiff relied in drafting complaint). If a document outside of the complaint is to form the basis for dismissal, two requirements must be met in addition to the requirement that the document be “integral” to the complaint: (1) “it must be clear on the record that no dispute exists regarding the authenticity or accuracy of the document”; and (2) “[i]t must also be clear that there exist no material disputed issues of fact regarding the relevance of the document.” Faulkner, 463 F.3d at 134.

Plaintiff has attached the challenged faxes to the Complaint, and therefore these may be considered by the Court. See Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir.1991) (“[T]he complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.”) Plaintiff has also submitted via declaration the legislative history for GBL § 396–aa, various judicial opinions and orders, and a Federal Communications Commission (“FCC”) amicus brief filed in connection with unrelated litigation. I may take judicial notice of these materials—for the fact that they exist and for what is in them, but not for their truth—because they are public documents. See Sutton v. Wachovia Sec., LLC, 208 Fed.Appx. 27, 29–30 (2d Cir.2006) (court orders are “undisputably matters of public record”); Global Network Commc'ns, Inc. v. City of N.Y., 458 F.3d 150, 157 (2d Cir.2006) (summary order) (“A court may take judicial notice of a document filed in another court not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings.”) (internal quotation marks omitted); Wang v. Pataki, 396 F.Supp.2d 446, 453 n. 1 (S.D.N.Y.2005) (“The Court may ... take judicial notice of public documents, such as legislative histories.”).

Additionally, Plaintiff has submitted a journal article of which I may take judicial notice for the fact of its publication, but not for the truth of the statements contained therein. See Pension Comm. of the Univ. of Montreal Pension...