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Kostmayer Construction, LLC v. Port Pipe & Tube, Inc.

United States District Court, W.D. Louisiana, Lake Charles Division

April 7, 2019

KOSTMAYER CONSTRUCTION, LLC
v.
PORT PIPE & TUBE, INC.

          MEMORANDUM ORDER

          KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE

         Before 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 hereby DENIED.

         I. Background

         The 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.

         On June 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.

         On June 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. § 64.1200(a)(4)(iii)-(vii).

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.

         II.

         Law and Analysis

         A. Standing

         We begin by addressing defendant's claim that plaintiff lacks standing in this case.

         Plaintiff's 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.

         Then on 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 ...


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