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Advanced Rehab and Medical, P.C. v. Amedisys Holding, LLC

United States District Court, W.D. Tennessee, Eastern Division

August 30, 2019




         Before 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. 1.)[1] 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).


         Advanced 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.)

         On 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)[2]. (D.E. 56 at PageID 422-27.)

         Because 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.

         In 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.


         The 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, [3] is accomplished by “general factual allegations of injury resulting from the defendant's conduct.” Id. at 561.

         Defendant 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.)

         The 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.[4] Thus, Advanced has standing to proceed.


         Amedisys's 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) states:

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.


         The Court now turns to the initial objective of Plaintiff's motion: the certification of its class.

         Legal Standard

         Advanced 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)).

         “The 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).

         Threshold Questions

         Before 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).

         Plaintiff 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.

         Rule ...

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