United States District Court, W.D. Louisiana, Lake Charles Division
ELIZABETH ERNY FOOTE UNITED STATES DISTRICT JUDGE
the Court are a Motion to Dismiss, or, Alternatively, Motion
to Strike, filed by Defendant Port Pipe & Tube, Inc.
("Port Pipe") [Record Document 34] and an Appeal of
the Magistrate Judge's Order Granting Plaintiffs Motion
for Enlargement of Time Frame for Filing Motion for Class
Certification, also filed by Port Pipe [Record Document 28].
The respective parties have filed opposition and reply briefs
to the motion and appeal, all of which have been reviewed by
the undersigned. For the reasons set forth below, the Motion
to Dismiss, or, Alternatively, Motion to Strike is
DENIED, and the Magistrate Judge's
Memorandum Order of September 30, 2016 [Record Document 27]
March 28, 2016, Kostmayer Construction, LLC
("Kostmayer") filed a putative class action in the
Eastern District of Louisiana ("Complaint") against
Port Pipe for violations of the Telephone Consumer Protection
Act ("TCPA") as amended by the Junk Fax Prevention
Act of 2005 ("JFPA"). [Record Document 1].
Kostmayer alleged it personally received from Port Pipe
unsolicited faxes that violated the TCP A, the JFPA, and FCC
regulations. [Id. at 9]. Kostmayer also alleged that
the unsolicited faxes "caus[ed] Plaintiff and Plaintiff
Class to sustain statutory damages, in addition to actual
damages, including but not limited to those contemplated by
Congress and the FCC." [Id] The complaint did
not further explain the alleged damages.
10, 2016, Port Pipe moved to dismiss the action on two
grounds: (1) lack of subject matter jurisdiction because the
Complaint did not allege concrete facts that would give rise
to standing; and (2) improper venue because the Complaint did
not allege that any action giving rise to the claims occurred
in the Eastern District of Louisiana. [Record Document 8-1 at
3, 5-6]. In the alternative, Port Pipe moved to transfer the
case to the Western District of Louisiana or the Southern
District of Texas. [Id. at 7-8]. Kostmayer opposed
Port Pipe's motion on both grounds, but subsequently
consented to transfer; the case was transferred to this Court
on July 7, 2016. [Record Documents 10, 15, and 17].
August 18, 2016, Port Pipe filed a Motion for Protective
Order Staying Discovery, pending the disposition of its
Federal Rule of Civil Procedure 12(b)(1) Motion to Dismiss.
[Record Document 20]. On August 22, 2016, Kostmayer filed a
motion for an extension of time ("Motion for Enlargement
of Time Frame"), requesting thirty days from the
disposition of the Motion to Dismiss to move for class
certification. [Record Document 22], The Magistrate Judge
granted both Port Pipe's Motion for Protective Order
Staying Discoveiy and Kostmayer's Motion for Enlargement
of Time Frame. [Record Document 27]. In granting
Kostmayer's motion, the Magistrate Judge found that,
while the motion itself was untimely, "the circumstances
surrounding the failure to timely file the motion excuse this
inadvertence." [Id. at 3]. Port Pipe appealed
the decision of the Magistrate Judge in granting
Kostmayer's Motion for Enlargement of Time Frame
("Appeal of the Magistrate's Order"), arguing
that the Magistrate Judge did not apply the correct legal
standard. [Record Document 28].
October 19, 2016, the Court granted Port Pipe's motion to
dismiss for lack of subject matter jurisdiction because the
Complaint failed to state a concrete injury. [Record Document
30]. The Court dismissed Kostmayer's claims with leave to
amend. [Record Document 31]. Kostmayer then filed Plaintiffs
First Amended Complaint ("Amended Complaint"),
which alleged the following:
Plaintiff wasted valuable time reviewing the fax, time that
was taken away from its construction business, and time that
it could have otherwise spent performing construction work.
Additionally, Defendant's junk faxes tied up the fax line
Plaintiff relies on for business use and misappropriated and
converted Plaintiffs paper and toner. Further, Plaintiff has
suffered an injury, created by Congress, in that it has been
deprived of its right to receive the required opt-out notice
disclosures on facsimile advertisements governed by the TCP
Document 32 at 3-4]. In response, Port Pipe filed a Motion to
Dismiss Amended Complaint, or, Alternatively Motion to Strike
("Second Motion to Dismiss"), claiming that the
Amended Complaint still failed to allege a concrete injury
and thus that Kostmayer lacked standing to sue. [Record
Document 34], In the alternative, Port Pipe asks the Court to
strike the class allegations from the Amended Complaint,
reiterating the arguments raised in its Appeal of the
Magistrate's Order. [Id. at p. 8], II.
LAW AND ANALYSIS
discussed below, the Court construes one of Port Pipe's
arguments in its Second Motion to Dismiss as an argument that
the Amended Complaint fails to state a claim upon which
relief can be granted (a Rule 12(b)(6) motion), rather than
as an argument that Kostmayer lacks standing (properly raised
by a Rule 12(b)(1) motion). Additionally, Port Pipe's
Motion to Strike overlaps with its Appeal of the
Magistrate's Order. Therefore, the Court addresses Port
Pipe's arguments in the following manner: (1) Port
Pipe's 12(b)(1) Motion to Dismiss; (2) Port Pipe's
12(b)(6) Motion to Dismiss; (3) Port Pipe's 12(f) Motion
to Strike and its Appeal of the Magistrate's Order.
Port Pipe's 12(b)(1) Motion to Dismiss
12(b)(1) motion, Port Pipe argues that Kostmayer has
insufficiently pleaded facts that state an actual, concrete
injury and thus that Kostmayer does not meet the injury in
fact requirement for standing. [Record Document 34-1 at 1].
In opposition, Kostmayer contends that it has pleaded a
cognizable injury under the TCP A and the JFPA as well as
facts identifying actual, concrete injuries. [Record Document
39 at 9].
Federal Rule of Civil Procedure 12(b)(1) Standard
Rule of Civil Procedure 12(b)(1) allows a defendant to move
for the dismissal of a plaintiffs claims for lack of subject
matter jurisdiction. '"A case is properly dismissed
for lack of subject matter jurisdiction when the court lacks
the statutory or constitutional power to adjudicate the
case.'" Home Builders Ass'n of Miss., Inc.
v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998)
(quoting Nowak v. Ironworkers Local 6 Pension Fund,
81 F.3d 1182, 1187 (2d Cir. 1996)). The plaintiff bears the
burden of establishing subject matter jurisdiction. In re
FEMA Trailer Formaldehyde Prods. Liab. Litig., 668 F.3d
281, 286 (5th Cir. 2012) (citing Castro v. United
States, 560 F.3d 381, 386 (5th Cir. 2009)). To determine
whether it has subject matter jurisdiction, the Court can
look to "the complaint alone, the complaint supplemented
by the undisputed facts as evidenced in the record, or the
complaint supplemented by the undisputed facts plus the
court's resolution of the disputed facts."
Id. at287(citing Ramming v. United States,
281 F.3d 158, 161 (5th Cir. 2001)).
defendant's Rule 12(b)(1) motion is a "facial
attack" if it is not supplemented with affidavits,
testimony, or other evidentiary materials. Pater son v.
Weinberger, 644 F.2d 521, 523 (5 th Cir. 1981). In
considering a "facial attack, " the Court "is
required merely to look to the sufficiency of the allegations
in the complaint because they are presumed to be true. If
those jurisdictional allegations are sufficient the complaint
stands." Id. Because Port Pipe submitted no
evidence with its Rule 12(b)(1) motion, it has raised a
"facial attack;" thus, the Court need only
determine whether the Amended Complaint sufficiently alleges
the necessary jurisdictional facts.
Standing Requirement for Federal Subject Matter
jurisdiction of federal courts is limited to
"cases" and "controversies" that are
"amenable to, and resolved by, the judicial
process." Steel Co. v. Citizens for a Better Env
't, 523 U.S. 83, 102 (1998) (citing Muskrat v.
United States, 219 U.S. 346, 356-57 (1911)). For acase
to be justiciable, the plaintiff must have standing.
Id. (citing Whitmore v. Arkansas, 495 U.S.
149, 155 (1990)). Standing requires that the plaintiff have:
"(1) suffered an injury in fact, (2) that is fairly
traceable to the challenged conduct of the defendant, and (3)
that is likely to be redressed by a favorable judicial
decision." Spokeo, Inc. v. Robins, 136 S.Ct.
1540, 1547 (citing Lujan v. Defs. Of Wildlife, 504
U.S. 555, 560-61 (1992); Friends of the Earth v. Laidlaw
Envt'l Servs., Inc., 528 U.S. 167, 180-81 (2000)).
At the pleading stage, the plaintiff must "clearly . . .
allege facts demonstrating each element." Id.
(citing Warth v. Seldin, 422 U.S. 490, 518 (1975)).
Here, the parties dispute whether Kostmayer has adequately
alleged that it suffered an injury in fact. [Record Documents
34-1 at 4-8 and 39 at 8-16].
alleging injury caused by the violation of a statutory right,
a plaintiff must allege an injury that is both
"concrete" and "particularized."
Id. at 1549. A particularized injury is one that
"affects the plaintiff in a personal and individual
way." Id. at 1548 (citing Lujan, 504
U.S. at 560 n.l). A concrete injury is one that exists,
whether tangible or intangible. Id. at 1548-49.
Thus, a plaintiff cannot survive a 12(b)(1) dismissal through
"[a]negations of a bare procedural violation, divorced
from any concrete harm." Id. at 1549 (citing
Summers v. Earth Island Inst.,555 U.S. 488, 490
(2009)). While a mere procedural violation is insufficient,
the Supreme Court has cautioned that "[t]his does not