United States District Court, W.D. North Carolina, Charlotte Division
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.
J. Conrad, Jr. United States District Judge.
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).
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).
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).
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)).
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
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
(1) The class is so numerous that joinder of all members is