United States District Court, W.D. Louisiana, Lake Charles Division
KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE
the court is a Motion for Class Certification filed by
plaintiff Kostmayer Construction, LLC. Doc. 71. The motion is
opposed by defendant Port Pipe & Tube, Inc. Doc. 77. For
the reasons set forth below, the plaintiff's motion is
defendant, Port Pipe & Tube, Inc. is a company engaged in
the business of buying and selling steel to companies located
throughout the United States and internationally. Doc. 77, p.
7. On March 28, 2016, plaintiff, Kostmayer Construction, LLC,
filed a punitive class action in the Eastern District of
Louisiana alleging defendant had violated the Telephone
Consumer Protection Act of 1991 (“TCPA”), the
Junk Fax Prevention Act of 2005 (“JFPA”), and
regulations promulgated under the Federal Communications
Commission (“FCC”) by sending plaintiff and other
similarly situated persons facsimile advertisements that did
not include an JFPA mandated “Opt-Out Notice”
notifying recipients of their right to stop future junk
faxes. Doc. 1, p. 9, ¶ 24. Specifically, plaintiff cites
six facsimile transmissions of advertisements sent by
defendant to plaintiff it alleges failed to comply with the
mandatory Opt-Out Notice requirements set forth in 47 U.S.C.
§ 227, et seq., and 47 C.F.R. §
64.1200(a)(4)(iii)-(vii). Id. A copy of these
transmissions is attached to the complaint. Id. at
att. 1. It alleges these facsimile transmissions
“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.” Doc. 1, p. 9, ¶ 24.
10, 2016, plaintiff 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 claim occurred
in the Eastern District of Louisiana. Doc. 8, att. 1, pp. 3,
5-6. In the alternative, defendant moved to transfer the case
to the Western District of Louisiana or the Southern District
of Texas. Id. at 7-8. Plaintiff opposed the motion
to dismiss on both grounds [doc. 10], but subsequently
consented to transfer [doc. 15]; the case was transferred to
this court on July 7, 2016. Doc. 17. On October 19, 2016, the
court granted defendant's motion to dismiss for lack of
subject matter jurisdiction agreeing that plaintiff had
failed to state a concrete injury. Doc. 30. Plaintiff
subsequently amended its complaint to more specifically
connect its injury to the time wasted reviewing the
unsolicited fax advertisements and the expenses incurred from
printing them. Doc. 32, pp. 3-4. Defendant filed a second
motion to dismiss. Doc. 34. Among its arguments,
defendant's alleged plaintiff still failed to state a
concrete injury. Id. at att. 1, pp. 3-8. On November
1, 2017, the court rejected this argument, denying
defendant's motion and finding that plaintiff had
sufficiently alleged a concrete injury. Doc. 56, pp. 5-12.
1, 2018, plaintiff filed the instant motion to certify class.
Doc. 71. Plaintiff asks that we (1) certify it as the class
representative, (2) assign Chehardy, Sherman, Williams,
Murray, Recile, Stakelum, & Hayes, LLP as class counsel
and, (3) certify as a class:
All persons and entities that are subscribers of telephone
numbers to which within four years of the filing of this
Complaint, Defendant sent facsimile transmissions with
content that discusses, describes, promotes products and/or
services offered by Defendant, and does not contain the
opt-out notice required by 47 U.S.C. §
227(b)(1)(C)(iii), (b)(2)(D), (b)(2)(E), (d)(2) or 47 C.F.R.
Id. at 1. Defendant opposes the motion. Doc. 77. It
argues that plaintiff's claim should be dismissed for
lack of standing. Id. at 11-15. Furthermore, it
argues plaintiff cannot meet the class certification
requirements of Rule 23. Id. at 15-29.
begin by addressing defendant's claim that plaintiff
lacks standing in this case.
amended complaint designates its injury as the time wasted
reviewing the unsolicited fax advertisements and the expenses
incurred from printing them. Doc. 32, pp. 3-4. In
defendant's second motion to dismiss, it argued this was
not a concrete injury. Doc. 34, att. 1, pp. 3-8. The court
rejected this argument, denying defendant's motion and
finding that plaintiff had sufficiently alleged a concrete
injury. Doc. 56, pp. 5-12.
July 13, 2018, a deposition of plaintiff revealed it was
uncertain if any of the faxes sent by defendant had actually
been printed. Doc. 77, att. 2, pp. 12, 17-18, 25. Accordingly
defendant argues that plaintiff's only remaining injury
is the time it alleges it wasted reviewing the faxes. Doc.
77, p. 11. Defendant argues that this injury is not
“fairly traceable” to defendant's alleged
omissions of the mandatory Opt-Out Notice in its facsimile
transmissions. Id. at 11-12 (citing Lujan v.
Defenders. of Wildlife, 112 S.Ct. 2130, 2136 (1992)). As
set forth in the denial of defendant's second motion to
dismiss, the court has already contemplated that the alleged
waste of time ...