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Kopff v. World Research Group

October 24, 2006

JUDY KOPFF, ET AL. PLAINTIFFS,
v.
WORLD RESEARCH GROUP, LLC, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Paul L. Friedman United States District Judge

OPINION

This matter is before the Court on [69] defendants' motion to dismiss the Second Amended Complaint for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Upon consideration of defendants' motion, plaintiffs' opposition, defendants' reply, and the entire record in the case, the Court denies defendants' motion in part and grants it in part. The Court finds that plaintiffs have stated claims against defendants Vidar J. Jorgensen, Tatiana Pose, Dan Manganiello, the National Vehicle Leasing Association, and WRG Research, Inc. for violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227, but have failed to state claims against CBI Research, Inc. and the Center for Business Intelligence, LLC.

I. BACKGROUND

Plaintiffs Judy and Gary Kopff bring this suit under the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227. Plaintiffs allege that, "since the mid-1990s," defendants have sent plaintiffs "dozens [of] unsolicited fax advertisement transmissions of two pages each, on a regular basis approximately every two months, promoting various events . . . without plaintiffs' prior express invitation or permission." Second Amended Complaint ("2d Am. Compl.") ¶ 10. Plaintiffs further aver that they received fourteen unsolicited faxes after plaintiffs' attorney sent defendants a letter demanding that they cease sending the faxes, and four more since the filing of this lawsuit. See id. ¶¶ 13-14. Finally, plaintiffs allege that "many or most" of the faxes failed to identify the business, individual, or other entity which sent the fax or the telephone number of the sender, and also did not include the date and time of the fax transmission as required by the TCPA. See id. ¶ 22. Plaintiffs aver that defendants' alleged actions in sending the unsolicited fax advertisements and failing to include required identification information on the faxes were "willful and knowing." Id. ¶¶ 30, 33. Defendants Vidar J. Jorgensen, Tatiana Pose, Dan Manganiello, the National Vehicle Leasing Association ("NLVA"), WRG Research, Inc., CBI Research, Inc., and the Center for Business Intelligence, LLC have moved to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted.

II. DISCUSSION

A. Motion to Dismiss Standard

On a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court assumes the truth of the material facts as alleged in the complaint, see Summit Health, Ltd. v. Pinhas, 500 U.S. 322, 325 (1991), and the "complaint should not be dismissed unless plaintiffs can prove no set of facts in support of their claim which would entitle them to relief." Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994); see also Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The complaint "is construed liberally in the plaintiffs' favor, and [the Court should] grant plaintiffs the benefit of all inferences that can be derived from the facts alleged." Kowal v. MCI Communications Corp., 16 F.3d at 1276; see also Browning v. Clinton, 292 F.3d at 242; Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000); Harris v. Ladner, 127 F.3d 1121, 1123 (D.C. Cir. 1997). While the complaint is to be construed liberally in plaintiff's favor, the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint; nor must the Court accept plaintiff's legal conclusions. See Kowal v. MCI Communications Corp., 16 F.3d at 1276; Browning v. Clinton, 292 F.3d at 242.

B. The Telephone Consumer Protection Act

Under the Telephone Consumer Protection Act ("TCPA"), it is "unlawful for any person within the United States . . . to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement[.]" 42 U.S.C. § 227(b)(1)(C). FCC regulations also provide:

It shall be unlawful for any person within the United States to use a computer or other electronic device to send any message via a telephone facsimile machine unless such person clearly marks, in a margin at the top or bottom of each transmitted page of the message or on the first page of the transmission, the date and time it is sent and an identification of the business, other entity, or individual sending the message and the telephone number of the sending machine or of such business, other entity, or individual.

47 C.F.R. § 68.318. When facsimiles are sent by a fax broadcaster on behalf of other entities, "the entity or entities on whose behalf facsimiles are transmitted are ultimately liable for compliance with the rule banning unsolicited facsimile advertisements[.]" In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, FCC Release No. 95-310, 10 F.C.C. Rcd. 12391, 12407 (Aug. 7, 1995) ("TCPA Rules").*fn1 The FCC "emphasize[d], however, that facsimile broadcast services must ensure that their own identifying information appears on fax broadcasts. We also point out that in cases where a facsimile is transmitted on behalf of multiple entities, the fax broadcaster must assure that each such entity is identified separately in accordance with the statutory requirement." Id. at 12407-08. The TCPA provides a private cause of action to enjoin violations and "an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater[.]" 47 U.S.C. § 227(b)(3).

C. Stating a Claim under Rule 12(b)(6)

Defendants argue that plaintiffs' Second Amended Complaint fails to allege clearly which defendant or defendants, if any, sent plaintiffs unsolicited faxes, and whether any of the unsolicited faxes were sent on behalf of one or more defendants. According to defendants, plaintiffs' allegations are vague, conclusory, and deliberately ambiguous, and the Second Amended Complaint "rather carefully avoids alleging that the defendants actually sent or benefitted from the allegedly unsolicited faxes. Plaintiffs realize that the facts as alleged are insufficient to hold any one party liable for the faxes, thus they choose to maintain a studied ambiguity in their allegations so that they continue to hold the group liable." Defs.' Mem. at 10. Defendants' suggestion that plaintiffs have avoided alleging that defendants sent the allegedly unsolicited faxes is false. The Second Amended Complaint clearly states that "[s]ince the mid-1990s, defendants . . . sent dozens of unsolicited fax advertisement transmissions . . . to plaintiffs' telephone facsimile machine" and that defendants "sent a total of at least 40 unsolicited advertisements or transmissions to the plaintiffs' telephone facsimile machines." 2d Am. Compl. ¶¶ 10, 29.

With respect to the particular defendants named in the Second Amended Complaint, the Court concludes for the reasons that follow that the complaint adequately states claims against WRG Research, Inc., the National Vehicle Leasing Association ...


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