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RJF Chiropractic Center, Inc. v. BSN Medical, Inc.

United States District Court, W.D. North Carolina, Charlotte Division

October 11, 2017

RJF CHIROPRACTIC CENTER, INC, an Ohio corporation, individually and as the representative of a class of similarly-situated per-sons, Plaintiff,
BSN MEDICAL, INC. and JOHN DOES 1-10, Defendants.


          Robert J. Conrad, Jr. United States District Judge.

         THIS MATTER comes before the Court on Plaintiff's Complaint, (Doc. No. 1), Plaintiff's “Placeholder” Motion for Class Certification and Request for Status Conference, (Doc. No. 2), and Defendant's Memorandum in Opposition, (Doc. No. 11).

         I. BACKGROUND

         On December 14, 2016, RJF Chiropractic Center, Inc. (“RJF”) filed a Complaint before this Court alleging the defendants violated the Federal Telephone Consumer Protection Act of 1991 as amended by the Junk Fax Prevention Act of 2005, 47 USC § 227 (“JFPA”). (Doc. No. 1 ¶¶ 1-2). These defendants include BSN Medical, Inc. (“BSN”), an Ohio corporation, and John Does 1-10, whose identity RJF alleges will be identified through discovery but remain presently unknown. (Id. ¶¶ 9-10).

         Specifically, RJF alleges that around January 9, 2013, Defendants sent an unsolicited advertisement to RJF by way of telephone facsimile machine. (Id.). RJF states that Defendants continued to send these faxes to RJF and others, thus violating the JFPA. (Id. ¶ 2). As a result, RJF argues that the defendants' unsolicited faxes damage recipients by invading their privacy and consuming paper, toner, and time. (Id. ¶ 35). In this suit, RJF comes before the Court on behalf of itself and all others similarly situated and ask this Court to certify a class comprised of those who received Defendants' alleged faxes. (Id. ¶ 4). RJF defines this class as:

All persons who (1) on or after four years prior to the filing of this action, (2) were sent telephone facsimile messages of material advertising the commercial availability or quality of any property, goods, or services by or on behalf of Defendants, (3) from whom Defendants did not obtain “prior express invitation or permission” to send fax advertisements, and (4) with whom Defendants did not have an established business relationship, and/or (5) which did not display a proper opt-out notice.

(Id. ¶ 17). In justifying the certification of the above class, RJF states that, upon information and belief, the proposed class contains more than 40 members who share a common questions of law and fact. (Doc. No. 2 at 2). The common questions of law and fact, RJF alleges, derive from Defendants' “standardized conduct” of “faxing a single advertisement form to persons on a list generated by Defendants and/or third a third party, which did not obtain prior express invitation or permission to send Defendants' advertisement by fax.” (Id. at 2-3).

         Defendant BSN has responded individually arguing that RJF's “motion should be denied because it is premature, unsupported, and in violation of the Federal and Local Rules.” (Doc. No. 11 at 2). Specifically, BSN states RJF's Complaint and Motion to Certify Class amounts to nothing more than unsupported allegations. BSN relies upon the Federal Rules of Civil Procedure, arguing that Rule 23 has a higher standard requiring affirmative demonstrations by RJF to prove that the prerequisites of class have been fulfilled. (Id.). Furthermore, BSN points to the Local Rules, asserting that they don't allow “placeholder” motions such as the one RJF has filed. (Id. at 3). By “placeholder, ” BSN alludes to motions that relate back to the filing date, allowing plaintiffs to “race to the courthouse to file empty, placeholder motions that may or may not ever be litigated, and that are neither required nor encouraged by the Federal Rules of Civil Procedure . . . .” (Id.) (citing Family Med. Pharmacy, LLC v. Perfumania Holdings, No. CV 15-0563-WS-C, 2016 WL 3680696, at *2 (S.D. Ala. July 5, 2016)).


         “The district court has broad discretion in deciding whether to certify a class.” Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 317 (4th Cir. 2006) (internal quotation marks omitted). In the execution of this discretion, a court must accept the substantive allegations of the complaint as true and “interpret Rule 23 in such a manner as to promote justice and judicial efficiency.” Farrar & Farrar Dairy, Inc., 254 F.R.D. at 72; In re Kirschner Med. Corp. Sec. Litig., 139 F.R.D. 74, 84 (D. Md. 1991). Nonetheless, the burden of establishing certification remains with the party seeking class certification. Thorn v. Jefferson-Pilot Life Ind. Co., 445 F.3d 311, 314 (4th Cir. 2006). A class “may only be certified if the trial court is satisfied, after rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” Gen Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982).


         The class action is “an exception to the usual rule that litigation is conducted by and on the behalf of the individual named parties only.” Comcast Corp. v. Behrend, 133 S.Ct. 1423 (2013) (citing Califano v. Yamasaski, 442 U.S. 682, 700-701 (1979)). To fall within the exception, a party seeking to maintain a class action “must affirmatively demonstrate his compliance” with Rule 23 of the Federal Rules of Civil Procedure. This rule requires a two-part test for certifying a class. First, the plaintiff must establish the four requirements under Rule 23(a):

(1) The class is so numerous that joinder of all members is ...

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