Salmon v. Nutra Pharma Corp.
687 F. App'x 713
| 10th Cir. | 2017Background
- Caleb Salmon, initially a pro se law student plaintiff, sued numerous unidentified (Doe) defendants alleging hundreds of autodialed prerecorded calls and texts in violation of the TCPA; he later amended to name specific defendants including Nutra Pharma Corp. (NPC) and Steve Gewecke/MyNyloxin Group.
- Salmon alleged the calls were part of a multi-level marketing (MLM) telemarketing campaign tied to NPC (seller of Nyloxin), citing prerecorded messages that promoted "cash flow" and advertised domains/phone numbers linked to Gewecke.
- NPC moved to dismiss and for Rule 11 sanctions, arguing Salmon failed to allege or show that the calls concerned NPC products or that NPC authorized the calls.
- The district court dismissed Salmon’s TCPA claim against NPC, finding no factual basis to infer the calls were related to NPC or Nyloxin and that Salmon’s MLM/agency theory was speculative.
- The district court imposed Rule 11 sanctions, awarding NPC $3,000 in fees and ordering a non-monetary admonition; Salmon appealed only the Rule 11 finding.
- The Tenth Circuit reviewed for abuse of discretion, concluded Salmon lacked objective evidentiary support connecting NPC to the specific calls, and affirmed the Rule 11 sanction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Salmon had an objective evidentiary basis to sue NPC under Rule 11 | Salmon claimed investigation tied Gewecke/MyNyloxin to NPC and the prerecorded messages via domain ownership and business relationships | NPC argued no allegations or evidence showed the calls concerned NPC products or were made on NPC’s behalf | Court held no reasonable attorney would have pled NPC responsible for those calls; Rule 11 violation affirmed |
| Whether identity of caller can be inferred without self-identification in message | Salmon argued reliable tracing methods other than message self-identification suffice | NPC argued Salmon used no reliable method to trace the calls to NPC | Court held Salmon failed to use a reliable method tying NPC to the messages; inference not supported |
| Whether allegations of an MLM/agency created reasonable basis to link NPC to calls | Salmon contended the existence of an MLM and media-unit scheme supported agency/connection to NPC | NPC contended MLM allegations unrelated to content of the calls and do not establish NPC involvement | Court held MLM allegations were too speculative and not reasonably connected to the calls received |
| Appellate jurisdiction over premature appeal of Rule 11 sanctions | Salmon noted his premature notice ripened when final judgment entered; he did not seek review of sanction specifics | NPC contended the appeal was untimely or incomplete | Court held the premature notice ripened with final judgment and this court has jurisdiction |
Key Cases Cited
- Dodd Ins. Serv., Inc. v. Royal Ins. Co. of Am., 935 F.2d 1152 (10th Cir. 1991) (Rule 11 review deference and ripening of premature appeals)
- Predator Int’l, Inc. v. Gamo Outdoor USA, Inc., 793 F.3d 1177 (10th Cir. 2015) (abuse-of-discretion standard for Rule 11 determinations)
- Hughes v. City of Fort Collins, 926 F.2d 986 (10th Cir. 1991) (appellate court should not second-guess district court Rule 11 fact assessments)
- Lewis v. B.F. Goodrich Co., 850 F.2d 641 (10th Cir. 1988) (ripening of premature appeals rule)
- Phelps v. Washburn Univ. of Topeka, 807 F.2d 153 (10th Cir. 1986) (when an order is final for appellate jurisdiction purposes)
- E.E.O.C. v. Wal-Mart Stores, Inc., 187 F.3d 1241 (10th Cir. 1999) (limits on ripening rule in separate collateral fee orders)