305 F. Supp. 3d 1342
M.D. Fla.2018Background
- Plaintiff (Tickling Keys, a Florida corporation) alleges Defendants Transamerica Financial Advisors, World Financial Group, World Financial Group Insurance Agency, and John Does sent an unsolicited advertising fax on August 31, 2015, to its fax machine and to at least 40 others in violation of the TCPA (Junk Fax Prevention Act).
- Plaintiff filed a putative class action under 47 U.S.C. § 227(b) seeking relief for unsolicited advertising faxes lacking prior express permission and required opt-out language.
- Defendants moved to dismiss under Fed. R. Civ. P. 12(b)(1) (lack of standing), 12(b)(6) (failure to state a claim), and 12(b)(2) (lack of personal jurisdiction).
- The complaint alleges receipt and printing of the fax, occupation of the fax machine/telephone line, and that the fax advertised revenue-generating products/services.
- The district court evaluated (a) whether the plaintiff alleged a concrete injury for Article III standing, (b) whether the TCPA claim was plausibly pleaded, and (c) whether Florida courts have specific personal jurisdiction over the non‑resident defendants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing (12(b)(1)) | Alleged occupation of fax machine, printing of fax, and resulting costs constitute a concrete, particularized injury under TCPA precedent | Complaint fails to allege actual receipt/printing or use of paper/toner, so no concrete injury | Denied — plaintiff pleaded sufficient injury-in-fact (fax occupied machine; printed) to satisfy Article III |
| Failure to state a claim (12(b)(6)) | Complaint alleges defendants sent an unsolicited advertising fax using a facsimile/computer, without permission or opt-out language | Allegations are insufficient or conclusory to state a TCPA fax claim | Denied — complaint pleads required elements (device, advertisement, unsolicited) plausibly |
| Personal jurisdiction over non‑residents (12(b)(2)) | Sending the fax into Florida that injured the Florida plaintiff establishes long-arm jurisdiction and meets Calder effects test | WFG and WFGIA are non-Florida corporations and contest Florida courts’ jurisdiction | Denied — Florida long‑arm statute applies; Calder effects test and relatedness satisfied; fair play factors met |
| Class scope v. jurisdiction (Bristol‑Myers issue) | Class is a putative nationwide class but named plaintiff was injured in Florida; class allegations are typical and not barred at pleading stage | Class definition sweeps beyond Florida; Bristol‑Myers restricts jurisdiction over out‑of‑forum plaintiffs | Denied — Bristol‑Myers (mass‑tort, multi‑plaintiff) not extended here at motion to dismiss stage; challenge to class is premature |
Key Cases Cited
- DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (standing and subject‑matter jurisdiction principles)
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (concrete injury requirement for Article III standing)
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading standards / plausibility)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading standards)
- Florence Endocrine Clinic, PLLC v. Arriva Med., LLC, 858 F.3d 1362 (unsolicited fax occupying machine can be concrete injury under TCPA)
- Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339 (personal jurisdiction principles; application of Florida long‑arm statute)