ORDER
THIS MATTER is before the Court upon Defendant’s Motion for Summary Judgment (DE 59-61), to which Plaintiff filed a Response (DE 75-76, 78) and Defendant filed a Reply (DE 82). The Court heard oral argument on the Motion on August 2, 2018 (DE 89, 95). In connection with this briefing, Defendant also filed a Motion to Strike (DE 80), to which Plaintiff filed a Response (DE 88). The Court addresses all related filings in this Order.
I. BACKGROUND
On December 13, 2005, a one-page fax advertising dental services may have been sent to a golf equipment store. The dentist never saw or approved the advertisement and the golf store owner does not remember ever seeing or receiving it. This four-year litigation spanning both state and federal courts ensued.
A. Defendant and Plaintiff
Defendant John G. Sarris, D.D.S., P.A. is a Florida dental practice owned by Dr. John G. Sarris.
B2B offered to send up to 10,000 fax advertisements for Roberts in exchange for $420. Roberts communicated with individuals representing B2B, although never Abraham herself, to discuss a potential fax advertising campaign. He specified that faxes should be sent to fax numbers only in specific zip codes near the dental practice and not to the fax numbers of other dental practices. (Roberts Aff. ¶¶ 12-13.) The last known communication between Roberts and B2B about proposed faxing occurred on December 1, 2005, when Roberts sent B2B a marked-up draft of a fax advertisement with the handwrit
Sarris became aware of the fax advertisement campaign by January 20, 2006, when his attorney received a letter from Paul Price, attorney for the Presbytery of Tropical Florida, stating that the Presbytery had received an unsolicited fax sent on behalf of Sarris’s dental practice, which it believed violated the Federal Telephone Consumer Protection Act (“TCPA”). (Sarris Dep. at 22; DE 60-6, Abraham Dep. Exs. at 29-31.) Upon receiving a copy of this letter, Roberts faxed it to B2B and asked that B2B’s law firm contact Sarris’s attorney as soon as possible. (Abraham Dep. Exs. at 27.)
Plaintiff Palm Beach Golf Center-Boea, Inc. (“Palm Beach Golf’) is a golf equipment store owned and operated by Larry Sugarman. In 2005, Palm Beach Golf had a fax machine on a dedicated phone line that printed faxes as they came in. (DE 21-5 & 60-9, Sugarman Dep. at 15, 20, 45.) When Sugarman noticed that the store was receiving a lot of unwanted faxes, he told his employees to put those faxes in a box next to the fax machine. (Sugarman Dep. at 20, 24.) At some point, he took an additional step: after receiving marketing materials from the Illinois law firm of Anderson & Wanca,
B. Prior Litigation
The parties do not dispute that this case has its genesis in previous class action lawsuits in other Districts in which B2B was involved in selling fax advertisement services to U.S. customers.
Although class counsel had already received the fax transmission information from Abraham related to the four lawsuits they were engaged in, after the deposition, class counsel promised Abraham in writing that they would enter a protective order preventing them from disclosing any additional information on the back-up disks and hard drive to third parties if she produced them. Class counsel made the same representation in a hearing before a federal judge in one of the four lawsuits. However, on January 8, 2009, class counsel deposed Abraham’s son Joel, and, at the direction of his mother, he appeared with the back-up disks and hard drive containing the additional fax transmission information and gave it to class counsel.
By January 13, 2009, Plaintiffs’ expert in those cases and the present case, Robert Bigerstaff, received the back-up disks to analyze and found what he determined to be fax transmission information for thousands of alleged fax recipients. Upon receipt of this information, Plaintiffs counsel in this case sent solicitation letters to the alleged fax recipients identified by Bigerstaff.
*1245 My law firm litigates class action lawsuits against companies which send junk faxes. It is unlawful to send advertising faxes without obtaining the recipients’ prior express permission or invitation. We try to recover compensation for the recipients of junk faxes and also attempt to stop future junk faxes.
During our investigation, we have determined that you are likely to be a member of the class. You might not remember receiving junk faxes, but if the lawsuit is successful, you would receive compensation (up to $1,500) for each junk fax sent.
We would like to discuss this issue with you. Please call me at [telephone number], Very truly yours, Anderson & Wanca, Ryan M. Kelly
(DE 28-16, Pl.’s Resps. to Defs.’ Request for Prod, at 10; see also DE 28-13, Solicitation Letters.) The words “Advertising Material” appear at the bottom of the letter.
C. The Present Litigation
On June 9, 2009, Palm Beach Golf entered into a retainer agreement with Anderson & Wanca and another Illinois law firm, Bock & Hatch LLC, which included a contingency clause — an agreement that attorneys’ fees are owed only upon a successful outcome in the lawsuit— that provided for a fee equal to one-third of any benefit conferred upon the class. (DE 28-21, Retainer Agreement.) On July 9, 2009, the law firms filed three TCPA class action lawsuits on behalf of Palm Beach Golf in Florida state court, including the present lawsuit.
In this lawsuit, Palm Beach Golf raises two claims against the Sarris dental practice: (1) violations of the TCPA, 47 U.S.C. § 227, and (2) state law conversion. Although Palm Beach Golf is the Plaintiff and proposed Class Representative, Sugar-man testified that he did not review the complaint before it was filed and was not aware it was a class action lawsuit. (Sugarman Dep. at 26, 42.) The Second
Plaintiffs claims are predicated solely upon the Bigerstaff report.
II. DISCUSSION
Defendant has moved for summary judgment on both claims. Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(a). Under this standard,
In evaluating a motion for summary judgment, the Court considers the evidence in the record, “including depositions, documents, electronically stored information, affidavits or declarations, stipulations ..., admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A). The Court “must view all the evidence and all factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party, and must resolve all reasonable doubts about the facts in favor of the non-movant.” Rioux v. City of Atlanta,
Finally, “[s]ummary judgment for a defendant is appropriate when the plaintiff ‘fails to make a sufficient showing to establish the existence of an element essential to [his] case, and on which [he] will bear the burden at trial.” Cleveland v. Policy Mgmt. Sys. Corp.,
A. The TCPA Claim
The TCPA, 47 U.S.C. § 227(b)(1)(C), makes it unlawful for any person to use a fax machine, computer or other device to send an unsolicited advertisement to a fax machine if the sender or recipient is in the United States, subject to some exceptions that are not relevant in the context of Defendant’s Motion. The statute provides for a private right of action for injunctive relief and for damages equal to the actual monetary loss or $500 for each violation. 47 U.S.C. § 227(b)(3). A court has discretion to award up to $1,500 for each violation if it finds that a defendant willfully or knowingly violated the statute. Id.
In Count I of the complaint, Plaintiff alleges that Defendant sent a fax advertisement to Plaintiff without Plaintiffs permission, giving rise to a TCPA claim. (SAC ¶¶ 14-15, 32.) However, in its summary judgment briefing as well as at oral argument, Plaintiff does not claim that Defendant sent a fax that Plaintiff received, but rather avers that the Bigerstaff report shows that B2B electronically transmitted a fax to Plaintiffs fax machine in contravention of the TCPA. (Resp. to MSJ at 4; Hrg. Tr. at 21 (“Judge, we are not proving our case through Mr. Sugarman [Plaintiff], we’re proving our case through Mr. Bigerstaff and the electronic data.”).) In such an instance, Plaintiff can only establish liability on a theory of vicarious liability.
The Bigerstaff report is Plaintiffs evidence that a fax connection — an electronic handshake — occurred between a B2B computer and Plaintiffs fax machine on December 13, 2005 to transmit a one-page fax. However, it is undisputed that Sarris neither sent a fax on Defendant’s behalf nor knew one was sent and that Plaintiff did not know it received a fax, let alone what its content was. The Court begins with the issues raised by the first proposition, that is, in the absence of direct liability, whether Defendant can be held vicariously liable under the TCPA for the acts of B2B.
In a recent declaratory ruling, the Federal Communications Commission (“FCC”), which oversees the TCPA, elaborated on the scope of vicarious liability under sections 227(b) and (c) of the TCPA. In re Joint Petition filed by Dish Network LLC, 28 FCC Red. 6574 (2013). There, three petitioners (including Dish Network, against which TCPA claims were alleged) sought an FCC ruling as to whether the provisions of the TCPA created liability for a seller if the illegal advertising calls in question were not initiated or physically placed by the seller, but rather by the seller’s third-party marketer. Id. at 6578. The FCC requested public comment on this question and, more specifically, asked what legal principles should be used to define “on behalf of’ liability for a seller under the TCPA. Id. at 6578-79.
Section 227(b)(1)(B) of the TCPA, addressing telemarketing, states that a party must “initiate” a call to be liable under that section. Among the numerous responses the FCC received to its request for public comment, some parties took the position that, because the FCC regulations implementing the TCPA defined the term “initiate” as encompassing a person on whose behalf a communication is made, there is no need to import agency principles into the construction of the TCPA. Id. at 6579-81. The FCC disagreed with that position, noting that the TCPA itself does not define “initiate” or “on behalf of’ and that the FCC has long drawn a distinction “between the telemarketer who initiates a call and the seller on whose behalf a call is made.” Id. at 6582.
Examining its regulations and precedent, the FCC concluded that “a seller is not directly liable for a violation of the TCPA unless it initiates a call, but may be held vicariously liable under federal common law agency principles for a TCPA violation by a third-party telemarketer.” Id. In rejecting the notion that the TCPA is a strict liability statute, the FCC declared that,
under our current rules and administrative precedent interpreting and implementing sections 227(b) and 227(c), we do not think that an action taken for the benefit of a seller by a third-party retailer, without more, is sufficient to trigger the liability of a seller under either section 227(c) or section 227(b). However, we see no reason that a seller should not be liable under those provisions for calls made by a third-party telemarketer when it has authorized that telemarketer to market its goods or services. In that circumstance, the seller has the ability, through its authorization, to oversee the conduct of its telemarketers, even if that power to supervise is unexercised.
Id. at 6593 & n. 140.
Federal common law principles of agency apply to allegations of TCPA
a. Failure to Plead Vicarious Liability
In its Motion, Defendant first argues that it is entitled to summary judgment on Plaintiffs TCPA claim because it is undisputed that Defendant did not send an unsolicited fax advertisement and Plaintiff failed to make any allegations of vicarious liability in the complaint. (MSJ at 5-7 & n. 2; DE 82, Reply to MSJ at 5.) In response, Plaintiff cites pre-Dish Network decisions to make an argument similar to one made in Dish Network: since an FCC regulation defined “sender” for purposes of a TCPA violation as the person on whose behalf a broadcaster sends a fax, Plaintiffs right of action arises directly from the provisions of the TCPA and not common law principles of agency. (Resp. to MSJ at 8-9 (quoting 47 C.F.R. § 64.1200(f)(10)).) As discussed above, the FCC rejected this argument. In the fax transmission context, Dish Network stands for the proposition that a party is not directly liable for a TCPA violation unless it actually transmits a fax, but the party may be vicariously liable under federal common law principles of agency for the actions of a third-party. 28 FCC Red. at 6582.
Plaintiffs Response does not address Defendant’s contention that Plaintiff improperly failed to allege vicarious liability in the complaint. However, at oral argument, the Court asked Plaintiffs counsel why the complaint contained no allegations of agency relationship, apparent authority or vicarious liability, and why that deficiency does not undermine liability on the part of the Sarris dental practice. (Hrg. Tr. at 25.) Plaintiff replied by referring again to the definition of “sender” in the FCC regulation, disagreeing that vicarious liability
If a plaintiffs theory of recovery against a defendant is premised upon vicarious liability, it must be alleged in the complaint. Prager v. FMS Bonds, Inc., No. 09-80775-CIV,
Since Plaintiff agreed to dismiss its claims against Dr. Sarris, only Plaintiffs claims against the Sarris dental practice remain. In the complaint, Plaintiffs factual allegations are, quite simply, that Defendant — the Sarris dental practice — transmitted a fax advertisement to Plaintiff without Plaintiffs permission. (SAC ¶¶ 14-15.) Plaintiff does not name B2B as a party in this matter and never mentions B2B in the complaint.
Plaintiff cannot contend that it had no knowledge of B2B at the time it first filed
b. Insufficiency of Evidence
Even if the Court were to excuse Plaintiff for failing to plead vicarious liability on account of any arguably unsettled principles of liability under the TCPA when Plaintiff filed its complaint (that is, before Dish Network), the facts proffered by Plaintiff, even if true, are not sufficient to establish vicarious liability on the part of Defendant under the TCPA. In its Response to Defendant’s Motion for Summary Judgment — for the first time— Plaintiff offers three theories of vicarious liability against Defendant: formal agency; apparent authority and ratification. (Resp. to MSJ at 11-17.) Defendant argues it is entitled to summary judgment on all three theories. (MSJ at 7-14; Reply to MSJ at 5-10.) The Court addresses each in turn.
i. Formal Agency
Formal agency liability requires a showing that a principal “manifests assent” to an agent that the agent act on behalf of the principal and subject to the principal’s control. Dish Network, 28 FCC Red. at 6586; see also Restatement § 1.01. Thus, for Plaintiff to demonstrate a formal agency relationship between Defendant and B2B, Plaintiff must show Defendant had control of B2B’s actions. See Mais v. Gulf Coast Collection Bureau, Inc.,
The TCPA prohibits only faxes of certain content — that is, advertisements— from being sent; it does not prohibit other kinds of faxes. 47 U.S.C. § 227(b)(1)(C). As a result, in the context of Plaintiffs burden to show that B2B acted on behalf of Defendant for purposes of the alleged TCPA fax violation, it is essential that Plaintiff demonstrate that Defendant controlled the fax content.
Reviewing the parties’ factual contentions, the parties do not dispute that Roberts handled the marketing for Defendant in 2005.
As to the client table for Roberts, Abraham testified that the field designated for the date on which a customer approved a fax advertisement for transmission was left blank. (Abraham Dep. at 70-71.) Roberts stated that, in his last communication with B2B regarding the proposed fax, he requested changes to the fax content, and he never received a response from B2B, signed off on any changes, or approved the content of the fax for transmission. (Roberts Aff. ¶¶ 14-17.) Plaintiff has produced no evidence that Roberts did approve the fax,
Construing the facts in Plaintiffs favor, Plaintiff cannot demonstrate that Defendant controlled the content of the fax allegedly sent by B2B, which is an essential element of its vicarious liability claim under the TCPA. Roberts has testified under oath that he did not approve the fax content, and there is no evidence that the content was ever seen or approved by anyone else. By raising evidence of B2B’s custom and practice, Plaintiff does not create a genuine dispute of material fact; even if B2B sometimes or usually obtained customer approval of the contents of a fax, there is no evidence B2B did so in this case. Indeed, the evidence, by way of Roberts’ affidavit, is that B2B did not. Because the TCPA sets forth a content-specific prohibition on faxes, Plaintiff cannot make a showing of formal agency to support vicarious liability under the TCPA against Defendant.
ii. Apparent Authority
Plaintiffs second theory of vicarious liability against Defendant, apparent authority, requires proof of three elements: “(1) a representation by the purported principal; (2) reliance on that representation by a third party; and (3) a change in position by a third party in reliance upon such a relationship.” Nat'l Auto Lenders, Inc. v. SysLOCATE, Inc.,
The undisputed facts of this case cannot support a claim of apparent authority liability. As Defendant points out in its Motion, Plaintiffs complaint alleges only that Defendant sent a fax. (See MSJ at 11-12.) To the extent that demonstrating apparent agency requires a plaintiff to show it reasonably believed an agent was acting on behalf of a principal, Plaintiffs own complaint states otherwise when it alleges that Plaintiff believed Defendant (the now-alleged principal) sent a fax, not B2B (the now-alleged agent). (SAC ¶ 14.) The Restatement forthrightly provides that “[a]pparent authority is not present when a third party [Plaintiff] believes that an interaction is with an actor who is a principal.” Restatement § 2.03(f).
In any event, there is not a scintilla of evidence that Plaintiff ever knew it received any fax from Defendant. Indeed, Plaintiffs complaint never alleges Plaintiff received a fax, only that Defendant sent one. It is therefore impossible for Plaintiff to show it ever relied on a representation of B2B or that Plaintiff changed its position in reliance on an apparent agency relationship. In short, Plaintiff has provided no facts to support its new claim of apparent agency liability, and Defendant is thus entitled to summary judgment on this theory.
iii. Ratification
To prove its third theory of vicarious liability, ratification, Plaintiff has the burden of showing that “ ‘the benefits of the purportedly unauthorized acts are accepted [by Defendant] with full knowledge of the facts under circumstances demonstrating the intent to adopt the unauthorized arrangement.’ ” Nat’l Auto Lenders, F.Supp.2d at 1323 (quoting In re Securities Group,
Aside from the much-discussed pleading deficiencies, which are again present with respect to Plaintiffs new ratification claim, the sole fact Plaintiff proffers to support its ratification claim is that, a month after the alleged faxing occurred,
2. Article III Case-or-Controversy Standing
It is also undisputed in this case that Plaintiff did not know it received the fax that forms the basis of its claims against Defendant, let alone what the content of the fax was. These circumstances raise the question of whether Plaintiff suffered any injury sufficient to give it standing to bring this case in federal court — a question that must bear the Court’s sua sponte scrutiny.
“Article III of the Constitution limits the judicial power of the United States to the resolution of Cases and Controversies, and Article III standing ... enforces the Constitution’s case-or-controversy requirement.” Hein v. Freedom from Religion Found., Inc.,
To have Article III standing, a plaintiff must show (1) an “injury in fact” that is concrete, particularized, and actual or imminent (as opposed to conjectural or hypothetical); (2) that the injury is fairly traceable to the challenged action of the defendant; and (3) that it is likely (as opposed to merely speculative) that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife,
Federal courts are “under an independent obligation to examine their own jurisdiction, and standing ‘is perhaps the most important of [the jurisdictional] doctrines.’ ” FW/PBS, Inc. v. Dallas,
Here, the Court examines Plaintiffs standing to bring this action sua sponte, as it must. Because no evidentiary contradictions related to standing are present — indeed, a lack of standing is indicated by Plaintiffs evidence itself — the Court has declined to hold an evidentiary hearing related to standing.
a. Statutory Provisions
In a variety of contexts throughout this litigation, Plaintiff has argued that it need not show that it received Defendant’s fax advertisement because “[t]he TCPA prohibits the sending of an unsolicited advertisement by fax, not the receipt of such a fax.” (See DE 71, Pl.’s Mots, in Limine at 4-5 (citing TCPA).) The TCPA states that “[i]t shall be unlawful” for a person to “send, to a telephone facsimile machine, an unsolicited advertisement.” 47 U.S.C. § 227(b)(1)(C). Courts, including the high courts of two states, have construed this language to conclude that a plaintiff need only prove a defendant sent a fax advertisement, not that the plaintiff received it, to establish a violation of the TCPA. See Hinman v. M & M Rental Ctr.,
While the TCPA provides that a person who sends a fax advertisement may be liable, nowhere in the statute does Congress express an intent to circumvent the requirement that a plaintiff have Article III case-or-controversy standing to bring a claim, which requires that the plaintiff demonstrate “a distinct and palpable injury to himself.” See Warth v. Seldin,
In US Fax Law Center, Inc. v. iHire, Inc., the court addressed whether a plaintiff who never received the “junk faxes” at issue had standing to bring TCPA claims against the defendants who allegedly sent the faxes.
Several other aspects of the TCPA also inform the Court’s analysis of a plaintiffs standing to bring a claim under the statute. First, the TCPA’s prohibition on sending faxes is content-specific. Congress did not ban any unsolicited fax from being sent, just fax advertisements. 47 U.S.C. § 227(b)(1)(C). Presumably, a plaintiff must see a fax to discern whether it is an advertisement or not. Furthermore, it is well-settled that, in enacting the TCPA, the aim of Congress was to protect consumers’ privacy rights. See Dish Network, 28 FCC Red. at 6575, 6585 (citing TCPA); US Law Center,
b. Insufficiency of Evidence
Against this statutory backdrop, Plaintiff does not proffer sufficient evidence to demonstrate it suffered a distinct and palpable injury to itself such that it has standing to bring a TCPA claim against Defendant. The only evidence in this case that a fax was ever sent or received is the Bigerstaff report, which states only that a one-page fax (of unknown content) was sent through an electronic handshake. Plaintiffs own evidence shows that Sugarman had no knowledge of receiving the fax in
There is no dispute that counsel for Plaintiff, armed with the Bigerstaff report, solicited Plaintiff to bring this action against Defendant. Indeed, Plaintiff had no knowledge of the fax in question at the time the lawsuit was initiated, was not aware of the details of the lawsuit, and does not remember reviewing the complaint before it was filed. (See Sugarman Dep. at 25-28.) Counsel for Plaintiff has repeatedly represented to the Court that it is proving its case solely through the Bigerstaff report and not through Plaintiff.
However, to have Article III case-or-controversy standing to bring its TCPA claim, Plaintiff must have suffered a distinct and' palpable injury. At this, the summary judgment stage, Plaintiff must have adduced enough evidence (and not merely allegations) for the Court to conclude that Plaintiff was injured in fact. There is no evidence that this Plaintiff was injured by receiving a fax advertisement from Defendant or that this Plaintiffs privacy was ever invaded by Defendant, as the TCPA contemplates. Accordingly, the Court lacks subject matter jurisdiction over Plaintiffs TCPA claim, and the claim must be dismissed.
B. The Conversion Claim
In Count II of the complaint, Plaintiff alleges that Defendant’s broad
Plaintiffs conversion claim fails for at least four reasons, each of which is independently sufficient for the Court to grant summary judgment in Defendant’s favor. First, Plaintiff once again fails to plead vicarious liability, this time for its conversion claim. Under Florida law, traditional agency principles apply to determine whether a defendant is vicariously liable for an act of conversion by a third party. See Horizon Leasing, A Div. of Horizon Fin., F.A. v. Leefmans,
Second, aside from the pleading defect, Plaintiff in its briefing makes no argument that some theory of vicarious liability should apply to make Defendant liable for conversion resulting from B2B’s alleged actions, let alone point to any facts supporting that claim. Plaintiff thus fails to meet its evidentiary burden on the conversion claim, and summary judgment for Defendant is appropriate. See Brooks,
Third, the fact that Plaintiff has no knowledge of ever receiving a fax from Defendant and can produce no evidence that a fax was ever printed precludes Plaintiffs conversion claim. In other words, if no fax was printed by Plaintiffs fax machine, none of Plaintiffs toner, paper or employee time could have been converted. Cf. Rossario’s Fine Jewelry, Inc. v. Paddock Publ’ns, Inc.,
Finally, in response to Defendant’s contention that the value of any converted property arising from the re
III. CONCLUSION
As the Court stated at oral argument, both Plaintiffs TCPA claim and its conversion claim are rife with fatal pleading and evidentiary defects such that they may not proceed to a jury. (Hrg. Tr. at 39.) Moreover, under the facts of this case, the Court lacks subject matter jurisdiction over Plaintiffs TCPA claim because Plaintiff cannot demonstrate that it suffered injury in fact sufficient to give it Article III case-or-controversy standing before this Court.
Accordingly, for all the reasons set forth above, it is hereby ORDERED AND ADJUDGED that Defendant’s Motion for Summary Judgment (DE 59) is GRANTED. Any and all other pending motions in this matter, including Defendant’s Motion to Strike Portions of Plaintiffs Response to Defendant’s Motion for Summary Judgment (DE 80), are DENIED AS MOOT. The Clerk is directed to CLOSE this case for administrative purposes.
Notes
. Dr. Sarris was previously dismissed as Defendant in his individual capacity by stipulation of the parties (DE 47).
. For the purposes of Defendant's Motion, both parties treat B2B and Macaw as one entity and collectively refer to them as B2B, which the Court adopts for the purposes of this Order.
. In their sworn statements, both Roberts and Sarris aver that Roberts never informed Sarris of his communications with B2B or the proposed fax advertisement campaign, and Plaintiff has produced no evidence to the contrary. Plaintiff has also proffered no evidence regarding the circumstances surrounding Sarris Management Corporation’s payment to B2B, declining to depose either Sarris's wife, who runs that entity, or Roberts, who was the only person in contact with B2B.
. The contents of the letter Sugarman received from Anderson & Wanca are revealed below.
. The parties provided detailed briefing on these facts in Plaintiff's Motion to Certify Class (DE 20, 21), Defendant’s Response (DE 28) and Plaintiff’s Reply (DE 38). The facts set forth here are undisputed and the Court considers them germane to this Order.
. The lawsuits included CE Design Ltd. v. Cy’s Crabhouse North, Inc., No. 07 C 5456 (N.D.Ill.); G.M. Sign Inc. v. Finish Thompson, Inc., No. 07 C 5953 (N.D.Ill.); and two others.
. Attorney Eric Rubin accompanied Joel to the deposition. After the deposition, Brian Wanca, class counsel and a colleague of Kelly at Anderson & Wanca, sent Eric Rubin a check for $5,000 with the memo-line message "document retrieval.” CE Design Ltd. v. CY’s Crabhouse N., Inc., No. 07 C 5456,
. The irony of a situation where Plaintiff’s counsel sent out an unsolicited advertisement to find plaintiffs who were willing to bring lawsuits for receiving an unsolicited advertisement is not lost on the Court.
. Abraham has testified that Kelly and his law firm Anderson & Wanca have filed at least 134 lawsuits using the information obtained from the back-up disks the Abrahams produced. (DE 28-17, Abraham Aff. ¶ 7 & Ex. A (listing 134 lawsuits).)
. The other two lawsuits were Palm Beach Golf Center-Boca, Inc. v. ADCAHB Medical Coverages, Inc., No. 09-CA-23363 (Fla.Cir.Ct. July 9, 2009), and Palm Beach Golf Center-Boca, Inc. v. Boca Raton Florist, Inc., No. 09-CA-23367 (Fla Cir. Ct. July 9, 2009). (Abraham Aff. Ex. A.) In the ADCAHB matter, Sugarman was deposed on June 23, 2010, and testified not only that he was unaware of ever receiving a fax forming the basis of the ADCAHB lawsuit, but also that he was unaware of any details concerning the other two lawsuits in which his company was the sole named plaintiff:
Q: [A]m I therefore correct in stating that you don’t have personal knowledge whether [the fax at issue] actually was faxed to the Boca store?
A: I do not.
Q: Has Palm Beach Golf Center filed any other lawsuits in regard to [the fax at issue] or any other junk faxes?
A: No, sir.
Q: And I’m not here to trick you, but I am presently defending a lawsuit that the Palm Beach Golf Center-Boca, Inc. has brought against a dentist by the name of Sarris.
A: Oh.
Q: Are you aware of that?
A: I — yeah, I’m sorry. There were, I guess, two other — two other lawsuits.
Q: When you say two other lawsuits, another one besides Dr. Sarris and this one?
A: Yeah.
Q: What is the other one?
A: I don't remember right at the moment.
Q: Well, do you remember whether it was an individual or a business that you sued in the other lawsuit?
A: I don’t remember. (DE 28-23, Sugar-man Dep. in ADCAHB at 30-31.)
. In his deposition in the ADCAHB matter, Sugarman testified that the Bigerstaff report was the sole basis for his belief that Palm Beach Golf received the fax at issue. (Sugar-man Dep. in ADCAHB at 36.) In his deposition in the present matter almost a year later, Sugarman no longer remembered what the Bigerstaff report was or that he had stated it formed the basis of his claim in the ADCAHB matter. (Sugarman Dep. at 29, 32 ("I don't remember what my recollections are. I mean, if — if that's what I said, that’s what I said. I don’t know — I sitting here right now, I don't why I said that.”) Nonetheless, the only evidence Plaintiff has proffered to show that a fax was sent to its fax number is the Bigerstaff report. At oral argument, Plaintiff's counsel stated, "we are not proving our case through Mr. Sugarman; we're proving our case through Mr. Bigerstaff and the electronic data.” (DE 95, Hrg. Tr. at 21.) Defense counsel concurred, saying Sugarman "admittedly has no evidence, zero, besides what the plaintiff's attorneys have provided.” (Hrg. Tr. at 37.) Moreover, the fax attached to the complaint, which is the same as that attached to the Bigerstaff report, does not contain a header showing a fax number for a sender or recipient or any other identifying information. (SAC Ex. A; Sugarman Dep. at 64.)
. The Bigerstaff report does not once mention Plaintiff or its fax number, and neither Plaintiff's statement of facts nor its brief in response to Defendant's Motion for Summary Judgment establish that Plaintiff’s fax number was among the 7,058 numbers to which a one-page fax was allegedly sent. The closest Plaintiff's brief comes to bridging that gap is the contention that Defendant "does not dispute that advertisements for its chiropractic business were sent by fax to fax machines, including Plaintiff's.” (DE 75, Resp. to MSJ at 6.) Aside from the glaring inaccuracy regarding Defendant’s business — Defendant is a dental practice, not a chiropractic business— the brief also mischaracterizes Defendant’s position. (See, e.g., DE 61, MSJ at 1 ("[T]he alleged fax advertisement purportedly received by Palm Beach was undisputedly sent by B2B, a New York company, in conjunction with a Romanian company by the name of Macaw.”).) But, in its Motion for Class Certification, Plaintiff did proffer evidence that its fax number was among those listed in the Bigerstaff Report. (DE 21, Memo in Supp. of Mot. for Class Cert, at 6 (citing Sugarman Dep. at 16 (identifying Palm Beach Golf's fax number); Bigerstaff Report Ex. 5, p. 98, line 4606; Ex. 7, p. 3, line 671).)
. In their briefs, both parties cite Dish Network to state the standard for vicarious liability under the TCPA. (See MSJ at 6-7; Resp. to MSJ at 10.) Indeed, a district court must
. Although not argued by Defendant, it may also be true that B2B as the alleged agent of Defendant should have been joined as a necessary party under Federal Rule of Civil Procedure 19. See Jurimex,
. In Dish Network, the FCC notes that nothing in its ruling “requires a consumer to provide proof — at the time it files its complaint — that the seller should be held vicariously liable for the offending call.” 28 FCC Red. at 6593. This is consistent with the requirements of Federal Rule of Civil Procedure 8, which requires that a complaint need not contain proof, but rather enough factual content "to raise a reasonable expectation that discovery will reveal evidence” of a claim. See Bell Atl. Corp. v. Twombly,
. It is also undisputed that Sarris himself knew nothing of B2B or the proposed fax advertisement campaign, leaving marketing of the dental practice completely in the hands of Roberts. (See, e.g., Sarris Dep. at 24-25, 34-36.)
. Although the Abraham deposition was taken by Defendant in the context of this lawsuit, Plaintiff was represented at the deposition by Tod Allen Lewis, an Illinois attorney who was not admitted to practice law in Florida or the U.S. District Court for the Southern District of Florida. This is the subject of Defendant’s Motion to Strike (DE 80), which is addressed in this Order.
. Plaintiff never deposed Roberts — who is undisputedly a central figure in this lawsuit— before the June 7, 2013 discovery deadline, even though Plaintiff was aware of Roberts at least since 2010. After the close of discovery, Plaintiff moved the Court to re-open discovery so that it could depose Roberts, inaccurately representing to the Court that it saw Roberts’ affidavit for the first time on June 14, 2013. (DE 63.) In fact, even the Court had received Roberts’ affidavit in December 2012 when it was attached to a brief filed by Defendant. The Court denied Plaintiff's motion, finding that Plaintiff failed to exercise reasonable diligence in conducting discovery and had no excuse for its neglect. (DE 66.)
The record reveals a pattern of inattention by Plaintiff: calling Defendant a chiropractic instead of dental practice; failing to identify Roberts as a key witness, take notice of Roberts' affidavit or ever depose him; sending an attorney to defend a deposition who was not admitted to practice law in the Southern District of Florida; filing a motion to appear pro hac vice after the attorney had already appeared that was itself defective for not complying with the Local Rules (see DE 57, 62); and failing to plead vicarious liability in the complaint or identify B2B, not Defendant, as the entity whose alleged actions could give rise to Plaintiff’s claims.
.At oral argument, counsel for Defendant drew an analogy between this case and a situation in which a contractor (as alleged agent) constructs a building for a customer (as alleged principal) but never obtains final approval on the plans for the building, and a third party is injured by a defect in the building. Counsel for Defendant argued that the principal, having not approved the building plans, could not be held liable for the third-party injury. (Hrg. Tr. at 34.) The analogy is appropriate to the extent that a third-party could not properly bring a claim against the principal for the contents of the building in that scenario, or the contents of a fax under the TCPA in this case, absent a manifestation of assent by the principal.
. Defendant only raised the issue of Plaintiff's standing in its responses to Plaintiff's Motions in Limine. (DE 81, Resp. to Mots, in Limine at 9-10.) At oral argument, the Court raised the issue of standing as a matter of the Court's subject matter jurisdiction over this action. Because the Court examines Plaintiffs standing sua sponte and discerns no evidentiary contradictions requiring a hearing, the Court denied Plaintiff's request at oral argument to provide additional briefing, which would only have served to further prolong this four-year litigation. (Hr'g Tr. at 39-40.)
. To the extent Sugarman testified (inconsistently) regarding the number of faxes Plaintiff may have received in total from any sender, there is no causal connection between Defendant and Plaintiff's receipt of those unidentified faxes. (See Sugarman Dep. in ADCAHB at 49-50; Sugarman Dep. at 68-69.)
. Earlier in this Order, the Court quoted the contents of the solicitation letter sent by Plaintiff’s counsel to Plaintiff. (See DE 28-16 at 10 (produced by Plaintiff in its responses to Defendant’s requests for production).) The Court finds that this letter (notwithstanding its self-serving "advertisement” label) most likely violated Florida’s attorney ethics rules, including Professional Ethics of the Florida Bar Opinion 71-22, which provides that a lawyer’s contact with a putative member of a class shall not seek to have such person employ the original attorney in the litigation. In other words, a lawyer may not seek clients by sending solicitation letters to putative members of a class. A Florida state court examined a similar question in another case and found that, under those facts, since Plaintiff's counsel did not have a regular or permanent presence in Florida for the practice of law in the spring of 2009, when Plaintiff’s counsel sent the solicitation letter, the Florida rules did not apply. (DE 38-1, Order, Sabon, Inc. v. Aqualogic, Inc., No. 09-037436, at 7,
. To the extent Plaintiff uses any inconsistencies in TCPA law as an excuse not to have pled vicarious liability in the TCPA context, that excuse is unavailable with respect to Plaintiffs conversion claim.
. Sugarman testified that the value of the paper and ink used to print a one-page fax would be "pennies.” (Sugarman Dep. at 45.)