Bobo's Drugs, Inc. v. Fagron, Inc.

314 F.Supp.3d 1240

BOBO'S DRUGS, INC., Plaintiff,

v.FAGRON, INC., Fagron Academy, LLC, Fagron Professional Services, LLC, Fagron Holding USA, LLC and B&B Pharmaceuticals, Inc., Defendants.

Case No: 8:17–cv–1862–T–36TBM

United States District Court, M.D. Florida, Tampa Division.

Signed June 8, 2018

Phillip Bock, James M. Smith, Bock, Hatch, Lewis & Oppenheim, LLC, Chicago, IL, for Plaintiff.

Darci F. Madden, Pro Hac Vice, Bryan Cave Leighton Paisner LLP, St. Louis, MO, David Axelman, Bryan Cave, LLP, Miami, FL, for Defendants.

ORDER

Charlene Edwards Honeywell, United States District Judge

This cause comes before the Court upon the Defendants' Motion to Dismiss Plaintiff's Class Action Complaint and Incorporated Memorandum of Law (Doc. 19), and Plaintiff's response in opposition (Doc. 25). Defendants move to dismiss both counts of the Complaint on the grounds that Plaintiff lacks a concrete and particularized harm to establish standing, Defendants were not "senders" of a fax communication that gave rise to the Complaint within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA"), and the statute of limitations bars certain claims by Plaintiff. Doc. 19 at p. 2. The Court, having considered the parties submissions and being fully advised in the premises, will grant, in part, the Defendants' Motion to Dismiss as to all claims pertaining to the May 1, 2013 fax. In all other respects, the Defendants' Motion to Dismiss will be denied.

I. STATEMENT OF FACTS¹

Plaintiff Bobo's Drugs, Inc. d/b/a/ Davis Islands Pharmacy ("Bobo's Drugs") is an independent pharmacy. Doc. 1 ¶ 5. Defendants Fagron, Inc.; Fagron Academy, LLC; Fagron Professional Services, LLC, Fagron Holding USA, LLC, and B & B Pharmaceuticals (collectively, "Defendants") allegedly faxed advertisements, either directly or through a third party, to Bobo's Drugs and a class of similarly situated persons. Doc. 1 ¶¶ 1, 18. Bobo's Drugs attached two of Defendants' fax advertisements to the Complaint, one received on June 2, 2016, and the second received on May 1, 2013. Id. ¶ 19, Ex. A–B. The 2016 fax advertises the Fagron Academy Compounding Technical Services ("FACTS") program, a subscription continuing education and consulting service, and displays a website address, telephone number, and e-mail address that can be used to subscribe to the FACTS program. Id. ¶¶ 20, 22, Ex. A. The 2013 fax advertises the commercial availability of Defendants' pharmaceutical ingredients and products and informs recipients that the listed prices are only available until May 31, 2013, or while supplies last. Id. ¶ 23. It also contains an address, toll free telephone number, and toll free fax number that can be used to place an order for Defendants' pharmaceuticals. Id. ¶ 24.

Additionally, Bobo's Drugs believes Defendants sent similar advertisements to thirty-nine other persons. Id. ¶ 26. Plaintiff brought suit on behalf of itself and all others similarly situated as members of a class, initially defined as follows:

Each person sent one or more telephone facsimile messages from Fagron or B & B Pharmaceuticals promoting pharmaceutical products or educational services from the Fagron Academy Compounding Technical Services [FACTS] but did not inform recipients that to opt out of receiving further faxes they must identify the telephone number of the telephone facsimile machine to which their opt-out request relates, that a request must be made to the telephone number, facsimile number, Web site address or email address identified in the sender's facsimile advertisement, and that an opt-out request will be valid until the recipient subsequently provides express invitation or permission to the sender, in writing or otherwise, authorizing advertisements by fax.

Id. ¶ 28.

Based on these facts, Bobo's Drugs filed a two-count Complaint. Id. Count I alleges that Defendants violated the TCPA by sending the fax advertisements to Bobo's Drugs and other similarly situated class members without their prior express invitation or permission. Id. ¶¶ 38–59. Count I further alleges that Bobo's Drugs and other similarly situated class members were damaged because the faxes tied up telephone lines, prevented fax machines from sending or receiving authorized faxes, caused undue wear and tear on the recipient's fax machines, and wasted the recipients time, paper, and ink toner. Id. ¶¶ 4, 59. Count II alleges that by sending advertisements to the class's fax machines, Defendants converted the class's fax machines, paper, toner, and time to Defendants' own use. Id. ¶¶ 60–67.

Defendants filed the instant Motion to Dismiss, arguing that (1) Bobo's Drugs' TCPA claim based on the 2013 fax advertisement is barred by the four year statute of limitations; (2) Defendants Fagron, Inc.; Fagron Academy, LLC; Fagron Professional Services, LLC, and Fagron Holdings USA, LLC (the "Fagron Defendants") do not qualify as the sender of the 2016 fax advertisement under the TCPA and Bobo's drugs cannot state a claim for violation of the TCPA or conversion against the Fagron Defendants; and (3) the 2016 fax advertisement was no more than a bare procedural violation that does not constitute a concrete injury in fact as required by Article III of the United States Constitution to establish standing. Doc. 19 at 3–7.

II. STANDARD OF REVIEW

To survive a motion to dismiss, a pleading must include a "short and plain statement of the claim showing that the pleader is entitled to relief." Ashcroft v. Iqbal , 556 U.S. 662, 677–78, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Fed. R. Civ. P. 8(a)(2) ). Labels, conclusions and formulaic recitations of the elements of a cause of action are not sufficient. Id. (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Furthermore, mere naked assertions are not sufficient. Id. A complaint must contain sufficient factual matter, which, if accepted as true, would "state a claim to relief that is plausible on its face." Id. (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). "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. (citation omitted). The court, however, is not bound to accept as true a legal conclusion stated as a "factual allegation" in the complaint. Id.

III. DISCUSSION

A. Statute of Limitations

The statute of limitations for a TCPA claim is four years. 28 U.S.C. § 1658(a) ; Solis v. CitiMortgage, Inc. , 700 Fed.Appx. 965 (11th Cir. 2017). Likewise, the statute of limitations for conversion is four years. Xavier v. Levie v Boymelgreen Marquis Developers, LLC , 117 So.3d 773, 775 (Fla. 3d DCA 2012).

Defendants move to dismiss Bobo's Drugs' TCPA and conversion claims to the extent that they rely on the May 1, 2013 fax, arguing that the fax was sent outside the applicable statutes of limitations. Bobo's Drugs filed the Complaint on August 7, 2017. Doc. 1. Thus, the May 2013 fax does, indeed, fall outside of the statutes of limitations for the TCPA and conversion, a point that Bobo's Drugs concedes. Doc. 25 at 1–2. Still, both counts in Plaintiff's complaint rely upon the June 2, 2016 fax as well as the May 1, 2013 fax. Doc 1 ¶¶ 42–44, 50–52, 60. A single fax may serve as the basis for a TCPA and conversion claim and, therefore, Counts I and II will not be dismissed. Palm Beach Golf Ctr.–Boca, Inc. v. John G. Sarris, D.D.S., P.A. , 781 F.3d 1245, 1259 (11th Cir. 2015) ; JWD Auto., Inc. v. DJM Advisory Grp. LLC , 218 F.Supp.3d 1335, 1340 (M.D. Fla. 2016). This case will proceed as to the June 2, 2016 fax, which is not barred by the statutes of limitations.

B. Standing

To meet Article III's standing requirements, a plaintiff must demonstrate (1) an injury in fact; (2) a causal connection between the injury and conduct complained of; and (3) that it is likely that the injury will be redressed by a favorable court ruling. Lujan v. Defenders of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The injury in fact must be "(1) concrete and particularized and (2) actual or imminent, not conjectural or hypothetical." Id. at 560, 112 S.Ct. 2130. A "particularized" injury "must affect the plaintiff in a personal and individual way." Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S.Ct. 1540, 1548, 194 L.Ed.2d 635 (2016) (quoting Lujan , 504 U.S. at 560 n. 1, 112 S.Ct. 2130 ).

Concrete injuries may arise from tangible or intangible harm, and Congress is "well positioned" to identify and elevate de facto injuries—either tangible or intangible—that were previously inadequate in law to the status of legally cognizable injuries. Id. at 1549. However, doing so "does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right." Id. ("Article III standing requires a concrete injury even in the context of a statutory violation"); Lujan 504 U.S. at 578, 112 S.Ct. 2130 ; Palm Beach Golf , 781 F.3d at 1251 ; Susinno v. Work Out World Inc. , 862 F.3d 346, 350 (3rd Cir. 2017). Thus, "a bare procedural violation, divorced from any concrete harm" does not "satisfy the injury-in-fact requirement of Article III." Spokeo , 136 S.Ct. at 1549.

Generally, the TCPA's intent with respect to unsolicited fax advertisements sought to "protect citizens from the loss of the use of their fax machines during the transmission of fax data." Palm Beach Golf , 781 F.3d at 1252 (citing H.R. REP. NO. 102–317, at 10). A recipient loses the ability to use their fax machine during transmission of an unsolicited fax advertisement, as well as paper and toner. JWD Auto , 218 F.Supp.3d at 1340. The costs associated with receiving unsolicited fax messages are certainly tangible, even if indirect, while the loss of time and usage of one's fax machine is intangible in nature. Id. Nonetheless, courts have held that receipt of an unsolicited fax advertisement meets ...