Boone's Pharmacy, Inc. v. EzriRx, LLC

684 F.Supp.3d 1207

BOONE'S PHARMACY, INC., Plaintiff, v. EZRIRX, LLC, Defendant.

CIVIL ACTION NO. 22-00375-JB-N

United States District Court, S.D. Alabama, Southern Division

Signed July 31, 2023

James H. McFerrin, McFerrin Law Firm, L.L.C., Birmingham, AL, Matthew Carroll, Matt Carroll Law LLC, Vestavia, AL, for Plaintiff.

Nathan David Chapman, Michael Sinan Qin, Kabat Chapman & Ozmer LLP, Atlanta, GA, Ryan Watstein, Pro Hac Vice, Watstein Terepka LLP, Atlanta, GA, for Defendant.

ORDER

JEFFREY U. BEAVERSTOCK, CHIEF UNITED STATES DISTRICT JUDGE

This matter is before the Court on Defendant's Motion to Dismiss Plaintiff's Amended Complaint and Motion to Strike Class Allegations or Deny Class Certification and briefs in support thereof (Docs. 29, 29-1, and 29-2), Plaintiff's opposition thereto (Docs. 34-1, 34-2, and 34-3), and Defendant's reply (Docs. 44 and 45). A hearing on the motion was held on July 5, 2023. After careful review of the relevant filings and the arguments presented at the hearing, Defendant's motion to dismiss is GRANTED.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case arises under the Telephone Consumer Protection Act ("TCPA"). Plaintiff, Boone's Pharmacy, Inc. ("Boone's"), is a small independent family pharmacy located in Demopolis, Alabama. (Doc. 20-3). Defendant, EzriRx, LLC ("EzriRx") is a pharmaceutical marketplace that connects wholesalers and pharmacies across the United States, allowing pharmacies to compare prices and find the best deals. (Docs. 20-1 and 29-1). According to Plaintiff, EzriRx obtained fax numbers for Plaintiff, and others similarly situated, from directories including a directory published by National Council for Prescription Drug Programs ("NCPDP")¹. (Doc. 20). The NCPDP directory includes the identity of a pharmacy's authorized representative. (Id.) After obtaining the fax number and telephone number from directories, Defendant had third parties call Plaintiff and other similarly situated entities to confirm the accuracy of the fax number and purportedly to obtain "consent" to be faxed advertisements. (Id.)

In July 2021, an EzriRx representative named Crystal called Boone's Pharmacy on behalf of EzriRx. A person named Sophie—a Boone's Pharmacy employee, answered the phone and the following conversation ensued:

Caller 1: Boone's Pharmacy.

EzriRx Agent: Hi, this is Crystal calling on behalf of EzriRx on a recorded line. I just want to confirm your fax number to be able to send you a marketing material about us. Is it (205) 652-7025, right?

Caller 1: Yes, ma'am, it is.

EzriRX Agent: And your name, please?

Caller 1: My name is Sophie.

EzriRX Agent: I'm sorry, what?

Caller 1: My name is Sophie, S-O-P-H-I-E.

EzriRX Agent: Okay. Thank you.

Caller 1: Uh-huh.

(Doc. 20-4). Following the above conversation, EzriRx sent Boone's faxes on two occasions: September 15 and September 19, 2022. (Doc. 20)

On September 21, 2022, Plaintiff filed the instant putative class action alleging EzriRx violated the TCPA, by sending Plaintiff faxes without consent. (Doc. 1). Plaintiff's Complaint was later amended on December 19, 2022. (Doc. 20). On February 8, 2023, Defendant filed the instant motion to dismiss based on the affirmative defense of consent and motion to strike class certification based Plaintiff's inability to ostensibly certify a class. (Docs. 29, 29-1, and 29-2). The same day, Defendant filed a Counterclaim for breach of contract and negligent misrepresentation, based on Plaintiff's filing the instant lawsuit after being notified that Boone's consented to the subject faxes. (Doc. 30). Plaintiff has responded to Defendant's motion to dismiss alleging that Boone's employee did not have the authority to give consent such that EzriRx acted in violation of the TCPA. (Doc. 34-2). Plaintiff additionally contends Defendant's motion to strike is premature or otherwise subject to denial. (Doc. 34-3). Defendant timely replied (Docs. 44 and 45). Finally, Plaintiff has filed a Motion to Dismiss Defendant's counterclaim (Doc. 35), Defendant has responded (Doc. 46), and Plaintiff has replied. (Doc. 47).²

II. DISMISSAL STANDARD

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, 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." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (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 a cause of action's elements will not do." Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (alteration in original) (citations and quotations omitted). The Court should not assess "whether a plaintiff will ultimately prevail but" consider "whether the claimant is entitled to offer evidence to support the claims." Id. at 583, 127 S.Ct. 1955 (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). "[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and 'that a recovery is very remote and unlikely.' " Id. at 556, 127 S.Ct. 1955. "The Supreme Court's Twombly formulation of the pleading standard 'does not impose a probability requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element.' " Williams v. Henry, 2009 WL 3340465, at *2 (S.D. Ala. Oct. 15, 2009) (citations and internal quotations omitted). "A district court may properly dismiss a complaint if it rests only on 'conclusory allegations, unwarranted factual deductions or legal conclusions masquerading as facts.' " Magwood v. Sec'y, Florida Dep't of Corr., 652 F. App'x 841, 843 (11th Cir. 2016), cert. denied sub nom. Magwood v. Jones, 580 U.S. 1073, 137 S. Ct. 675, 196 L.Ed.2d 560 (2017) (quoting Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003)).

III. MOTION TO DISMISS

Defendant's motion is premised on one position: that Plaintiff cannot state a plausible cause of action against it for violation of the TCPA because Plaintiff gave its prior express permission or consent to receive the subject faxes, rendering the transmission solicited. (Doc. 29-1, generally). In response, Plaintiff argues that the employee who was contacted by Defendant, Sophie, did not have the authority to consent, rendering Defendant's fax transmittals unsolicited. (Doc. 34-2, generally).

As an initial matter, the Court notes that consent is an affirmative defense. A motion to dismiss pursuant to 12(b)(6) does not generally permit an analysis of potential defenses a defendant may have to the asserted claims. See Brooks v. City of Winston-Salem, 85 F.3d 178, 181 (4th Cir. 1996) (citing Richmond, Fredericksburg & Potomac R.R. Co. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993)). However, an "affirmative defense . . . may be considered in resolving a motion to dismiss when the complaint affirmatively and clearly shows the conclusive applicability of the defense to bar the action." Scott v. Merchants Ass'n Collection Division, Inc., 2012 WL 4896175, at *2 (S.D. Fla. Oct. 15, 2012) (quoting Jackson v. BellSouth Telecommunications, 372 F.3d 1250, 1274-75 (11th Cir. 2004)); See also Murphy v. DCI Biologicals Orlando, LLC, 797 F.3d 1302, 1308 (11th Cir. 2015) citing to Fortner v. Thomas, 983 F.2d 1024, 1028 (11th Cir. 1993) ("By voluntarily providing his cell phone number to DCI, [plaintiff] gave his prior express consent to be contacted. Because [plaintiff's] complaint alleges, on its face, facts that demonstrate prior express consent, we affirm the district court's dismissal of [plaintiff's] claims.")

A. Prior Express Permission

In 1991, Congress passed the Telephone Consumer Protection Act and amended it with the Junk Fax Prevention Act in 2005, to protect consumers from unsolicited fax advertisements. See Pub. L. No. 102-243, 105 Stat. 2394 (1991) (codified as amended at 47 U.S.C. § 227); Pub. L. No. 109-21, 119 Stat. 359 (2005) (codified at 47 U.S.C. § 227). The Act prohibits the use of "any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement." Id. § 227(b)(1)(C). It defines an "unsolicited advertisement" as "any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission, in writing or otherwise." Id. § 227(a)(5). In analyzing "prior express invitation or permission", the Eleventh Circuit has stated as follows:

Because the Act does not define "prior express . . . permission," we give that term "its 'contextually appropriate ordinary meaning.' " In re Failla, 838 F.3d 1170, 1176 (11th Cir. 2016) (quoting Antonin Scalia & Bryan A. Garner, Reading Law § 6, at 70 (2012)). The term "permission" is defined as "the official act of allowing someone to do something" or "[a] license or liberty to do something; authorization." Permission, Black's Law Dictionary (11th ed. 2019); see also Permission, Oxford English Dictionary (online ed.) (defining "permission" as the "action of permitting, allowing, or giving consent; consent, leave, or liberty to do something"). And

...