United States District Court, W.D. Tennessee, Eastern Division
ORDER GRANTING PLAINTIFF'S MOTION FOR CLASS
DANIEL BREEN, UNITED STATES DISTRICT JUDGE
the Court is the September 21, 2018, motion of Plaintiff,
Advanced Rehab and Medical, P.C. (“Advanced”),
for class certification, pursuant to Fed.R.Civ.P. 23(a) and
(b)(3). (Docket Entry (“D.E.”) 61.) Advanced
initiated this action on August 4, 2017, against Defendant,
Amedisys Holding, LLC (“Amedisys”), and other
parties, alleging violations of the Telephone Consumer
Protection Act (“TCPA”), as amended by the Junk
Fax Prevention Act of 2005 (“JFPA”), stemming
from faxes Amedisys transmitted to Plaintiff. (D.E.
In this putative class action, Advanced seeks to join all
similarly situated plaintiffs via this motion for class
certification. Defendant responded to the filing, (D.E. 67),
to which Plaintiff replied, (D.E. 71).
alleges that, between November 23, 2015, and July 13, 2017,
Amedisys, a Louisiana limited liability company that provides
in-home health care services, sent it unsolicited faxes in an
effort to facilitate referrals. (D.E. 32 ¶¶ 10, 12,
Ex. A; D.E. 61-1 at PageID 439.) Plaintiff avers that a total
of 216, 897 similar faxes were sent to the proposed class of
plaintiffs. (D.E. 61-1 at PageID 439.)
April 27, 2018, Defendant filed a motion for partial summary
judgment. (D.E. 43.) In its supporting memorandum, Amedisys
explained that only persons who had provided at least two
referrals within a twelve-month period received faxes, and,
furthermore, each of those documents contained an opt-out
notice that complied with the TCPA's requirements. (D.E.
44.) Defendant sought summary judgment on the issues of (1)
whether the opt-out notice was clear and conspicuous; (2)
whether the notice set forth the requirements for a proper
opt-out request as set forth in 47 U.S.C. §
227(b)(2)(D)(iii) & (E); and (3) whether the notice
complied with the requirements of § 227(d). (D.E. 56 at
PageID 422.) On August 15, 2018, the Court granted
Defendant's motion, in part, holding that the opt-out
notice (1) was clear and conspicuous as a matter of law; and
(2) complied with the statutory requirements of §
227(b)(2)(D)(iii), (E)(i) & (ii). (D.E. 56 at PageID 422-27.)
of a lack of argument from Defendant, the Court denied
summary judgment as to (1) the compliance of the opt-out
notice with respect to § 227(b)(2)(E)(iii); and (2)
whether the timestamp at the top of the faxed document
satisfied the statute's directive under §
227(d)(1)(B). (D.E. 56 at PageID 427-28.) As will be
discussed further, Amedisys's October 22, 2018, response
to Advanced's motion for class certification revisits
these issues at length.
response to Plaintiff's subsequent motion for class
certification, Defendant filed a thirty-three-page brief.
(D.E. 67.) Much of the document, however, does not directly
address the issue of class certification, but is, rather,
devoted to arguments that are collateral to that question.
First, Amedisys contends that Advanced lacks standing because
of an absence of damages that are traceable to the receipt of
the facsimiles in controversy. (Id. at PageID
5981-84.) Next, the brief implores the Court to consider
matters that “should be addressed prior to class
certification, ” which Defendant insists were raised in
its motion for summary judgment. (Id. at PageID
5984-91.) Finally, Amedisys proceeds to challenge the merits
of Plaintiff's motion. (Id. at PageID 5991-
6003.) The Court will address these arguments in turn.
United States Constitution vests the judiciary with the
limited powers of hearing only “Cases” and
“Controversies” but does not define the scope of
those terms. Lujan v. Defenders of Wildlife, 504
U.S. 555, 559 (1992) (quoting U.S. Const. art. III, §
2). Thus, it has been left to the courts to determine what
cases are justiciable within the meaning of the Constitution
and to delimit what party has the proper standing to bring
those cases. Id. at 560 (quoting Whitmore v.
Arkansas, 495 U.S. 149, 155 (1990)). Over time,
precedent has “established that the irreducible
constitutional minimum of standing contains three
elements”: (1) “the plaintiff must have suffered
an injury in fact-an invasion of a legally protected interest
which is (a) concrete and particularized, and (b) actual and
imminent, not conjectural or hypothetical”; (2)
“there must be a causal connection between the injury
and the conduct complained of-the injury has to be fairly
traceable to the challenged action of the defendant, and not
the result of the independent action of some third party not
before the court”; and (3) “it must be likely, as
opposed to merely speculative, that the injury will be
redressed by a favorable decision.” Id. at
560-61 (internal citations and quotation marks omitted).
“The party invoking federal jurisdiction bears the
burden of establishing these elements, ” which, at the
motion-to-dismiss stage,  is accomplished by “general
factual allegations of injury resulting from the
defendant's conduct.” Id. at 561.
asserts that Plaintiff lacks standing, because it lacks
concrete damages that are traceable to the receipt of the
faxes at issue. (D.E. 67 at PageID 5981.) Amedisys relies
heavily on the Eighth Circuit's decision in St. Louis
Heart Ctr., Inc. v. Nomax, Inc., 899 F.3d 500 (8th Cir.
2018). In that case, the defendant challenged the
plaintiff's standing to sue under the TCPA where the
plaintiff had received several unsolicited faxes that
contained an allegedly deficient opt-out notice. Id.
at 501-03. The court found that the plaintiff lacked Article
III standing on two grounds. First, because the plaintiff
conceded that it may have consented to the faxes, the harm it
allegedly suffered-use of paper and toner, occupation of its
phone lines, and invasion of privacy-could not be traced to
the non-compliant opt-out notice on the faxes. Id.
at 504. Second, the court held that the deficiency in the
opt-out notice alone was not enough to establish an actual
harm or create a risk of real harm. Id. at 504-05.
The court reasoned that because “all twelve faxes
contained a box that the recipient could check if he did not
wish to receive future faxes, and a domestic fax number to
which the form could be returned, ” the technical
deficiencies alone were not a concrete enough error.
Id. Furthermore, the plaintiff had not attempted to
opt out of the faxes. Id. Applying the Eighth
Circuit's reasoning to this case, Defendant contends that
the gravamen of Plaintiff's case amounts to a “bare
procedural violation” by Amedisys, and because Advanced
did not attempt to opt out, it suffered no real harm. (D.E.
67 at Page 5984.) Defendant also points out that Plaintiff
has produced only two actual faxes and has not yet calculated
its damages in this regard. (Id.)
critical difference between St. Louis Heart and this
case is that Advanced presents the position that the
advertisements at issue were unsolicited. (D.E. 71 at PageID
6330; D.E. 32 ¶ 1.) Thus, its reasoning for suing cannot
be reduced to the bare procedural violation that was the
essence of the plaintiff's action in St. Louis
Heart. Furthermore, Sixth Circuit precedent directly
addresses the thrust of Amedisys's argument. In
Imhoff Inv., L.L.C. v. Alfoccino, Inc., 792 F.3d 627
(6th Cir. 2015), the court considered a case where plaintiffs
had received unsolicited faxes from a small, family-owned
restaurant who had contracted a bulk faxing business to
advertise for it. In holding that the plaintiff had standing,
the court acknowledged that, with the enactment of the TCPA,
Congress intended to provide a remedy for the harms of
“the cost of paper and ink, the difficulty the
recipient's telephone line being tied up, and the stress
on the switchboard systems.” Id. at 633.
Because of the intangible harms accounted for by the statute,
the court also noted that a plaintiff could still have
standing whether it had printed the faxes or not.
Id.; see also Am. Copper & Brass, Inc. v.
Lake City Indus. Prods., Inc., 757 F.3d 540, 544-45 (6th
Cir. 2014) (“But unsolicited fax advertisements impose
costs on all recipients, irrespective of ownership and the
cost of paper and ink, because such advertisements waste the
recipients' time and impede the free flow of
commerce.”). This is precisely the harm Plaintiff
alleges it has suffered, (D.E. 32 ¶ 3), and
Defendant's arguments to the contrary cannot overcome
Sixth Circuit precedent. Thus, Advanced has standing to proceed.
PREVIOUSLY RAISED IN MOTION FOR SUMMARY JUDGMENT
next contention is that the Court should reconsider the two
issues left undecided in its order partially granting summary
judgment. This is essentially a motion for revision thinly
cloaked as an argument. In this Court, such motions are to be
filed separately on the docket, so that they may receive
proper consideration by the Court and the other parties.
See Local Rule 7.2. Furthermore, Local Rule 7.3(b)
A motion for revision must specifically show: (1) a material
difference in fact or law from that which was presented to
the Court before entry of the interlocutory order for which
revision is sought, and that in the exercise of reasonable
diligence the party applying for revision did not know such
fact or law at the time of the interlocutory order; or (2)
the occurrence of new material facts or a change of law
occurring after the time of such order; or (3) a manifest
failure by the Court to consider material facts or
dispositive legal arguments that were presented to the Court
before such interlocutory order.
Defendant has failed to demonstrate any of these three
instances in its request for reconsideration. Instead
Amedisys violates Local Rule 7.3(c), which prohibits parties
from repeating written arguments made in prior motions.
Accordingly, the Court declines to consider any of these
arguments in their present procedural posture.
Court now turns to the initial objective of Plaintiff's
motion: the certification of its class.
seeks class certification under Fed.R.Civ.P. 23(a) and
(b)(3). “A district court has broad discretion to
decide whether to certify a class.” In re Whirlpool
Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d
838, 850 (6th Cir. 2013) (citing In re Am. Med. Sys.,
Inc., 75 F.3d 1069, 1079 (6th Cir. 1996)). “To
obtain class certification, a claimant must satisfy two sets
of requirements: (1) each of the four prerequisites under
Rule 23(a), and (2) the prerequisites of one of the three
types of class actions provided for by Rule 23(b). A failure
on either front dooms the class.” Pilgrim v.
Universal Health Card, LLC, 660 F.3d 943, 945-46 (6th
Cir. 2011). “The plaintiffs carry the burden to prove
that the class certification prerequisites are met . . .
.” In re Whirlpool Corp., 722 F.3d at 851.
“Rule 23 does not set forth a mere pleading standard. A
party seeking class certification must affirmatively
demonstrate his compliance with the Rule-that is, he must be
prepared to prove that there are in fact sufficiently
numerous parties, common questions of law or fact,
etc.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S.
338, 350 (2011). “[I]f [the] plaintiff's definition
of the class is found to be unacceptable, the court may
construe the complaint or redefine the class to bring it
within the scope of Rule 23 . . . .” Alan Wright, et
al., Federal Practice and Procedure § 1759 (3d
ed. Update Apr. 2018) (citing Powers v. Hamilton Cty.
Pub. Def. Comm'n, 501 F.3d 592 (6th Cir. 2007)).
Supreme Court's recent opinions in Amgen and
Dukes now clarify that some inquiry into the merits
may be necessary to decide if the Rule 23 prerequisites are
met.” In re Whirlpool Corp., 722 F.3d at 851
(citations omitted); see also Amgen Inc. v. Conn. Ret.
Plans & Trust Funds, 568 U.S. 455 (2013);
Dukes, 564 U.S. 338. At the class-certification
stage, however, district courts must constrain themselves to
consideration of the merits only insofar as it is relevant to
the certification decision. “In other words, district
courts may not ‘turn the class certification
proceedings into a dress rehearsal for the trial on the
merits.'” In re Whirlpool Corp., 722 F.3d
at 851-52 (quoting Messner v. Northshore Univ.
HealthSys., 669 F.3d 802, 811 (7th Cir. 2012)). For
purposes of class certification, the Court must conduct a
“rigorous analysis” of the petition to ensure
that all Rule 23 prerequisites are fully met. Gen. Tel.
Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982);
Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 537
(6th Cir. 2012). Regarding TCPA claims specifically, the
Seventh Circuit has noted that “[c]lass certification
is normal . . . because the main questions, such as whether a
given fax is an advertisement, are common to all
recipients.” Ira Holtzman, C.P.A. v. Turza,
728 F.3d 682, 684 (7th Cir. 2013).
examining Rule 23's requirements, the Court must make two
threshold determinations. First, the Court must ensure that
an identifiable “class” exists. See
Wright, et al., supra, § 1760; see also In
re Wal-Mart ATM Fee Notice Litigation, 2015 WL 6690412,
at *5 (W.D. Tenn. Nov. 3, 2015). This requires that
“the class definition . . . be sufficiently definite so
that it is administratively feasible for the court to
determine whether a particular individual is a member of the
proposed class.” Young, 693 F.3d at 537-38
(citations omitted). “[T]he size of a potential class
and the need to review individual files to identify its
members are not reasons to deny class certification.”
Id. at 539-40 (citing Bateman v. Am.
Multi-Cinema, Inc., 623 F.3d 708, 722 (9th Cir. 2010);
In re Visa Check/MasterMoney Antitrust Litig., 280
F.3d 124, 145 (2d Cir. 2001); Perez v. First Am. Title
Ins. Co., 2009 WL 2486003, at *7 (D. Ariz. Aug. 12,
2009); Slapikas v. First Am. Title Ins. Co., 250
F.R.D. 232, 250 (W.D. Pa. 2008)). Second, the Court must
“determine whether the named representative party is a
member of the class that party purports to represent.”
Wright, et al., supra, § 1761; see also
Faralli v. Hair Today, Gone Tomorrow, 2007 WL 120664,
2007 U.S. Dist. LEXIS 1977, at *13 (N.D. Ohio Jan. 10, 2007)
(“[T]he named representative must be a member of the
class.”). “In the context of the TCPA, where fax
logs have existed listing each successful recipient by fax
number, our circuit has concluded that such a ‘record
in fact demonstrates that the fax numbers are objective data
satisfying the ascertainability requirement.'”
Sandusky Wellness Ctr., LLC v. ASD Specialty Healthcare,
Inc., 863 F.3d 460, 471 (6th Cir. 2017) (quoting Am.
Copper & Brass, Inc., 757 F.3d at 545).
identifies its putative class members as the owners or users
of the phone numbers identified in the fax logs it filed
under seal with the Court. (D.E. 61-1 at PageID 450; D.E.
62-1.) Advanced asserts that the persons associated with
those numbers received one of the nineteen subject faxes
encompassed by the class definition, (D.E. 61-1 at PageID
450), and that it received faxes itself. (D.E. 32
¶¶ 12, 14.) Amedisys makes no argument that the
class cannot be ascertained, and, because Sandusky
makes clear that this type of data satisfies the requirement,
the Court finds that the class is ascertainable and Plaintiff
is a member of that class.