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Alpha Tech Pet, Inc. v. Lagasse, LLC

United States District Court, N.D. Illinois, Eastern Division

September 7, 2016

Alpha Tech Pet, Inc., Plaintiff,
v.
Lagasse, LLC; Essendant Management Services LLC; Essend ant Co.; United Stationers Inc.; and John Does 1-10, Defendants.

          MEMORANDUM OPINION AND ORDER

          Thomas M. Durkin, Judge

         Alpha Tech Pet, Inc., alleges that Lagasse LLC, Essendant Management Services LLC, Essendant Co., United Stationers, Inc., and John Does 1-10 ("Defendants") sent Alpha Tech eight unsolicited facsimile advertisements in violation of the Telephone Consumer Protection Act of 1991 ("TCPA"), as amended by the Junk Fax Protection Act of 2005, 47 U.S.C. § 227. R. 1. In addition to its individual claims, Alpha Tech also brings this action on behalf of all others similarly situated, and moves to have the Court certify a class of plaintiffs pursuant to Federal Rules of Civil Procedure 23(a), (b)(3) and (g). R. 3.[1] Defendants have moved to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), and alternatively, to strike the class allegations pursuant to Federal Rule of Civil Procedure 12(f). R. 19. Defendants also oppose Alpha Tech's motion for class certification and ask the Court to deny that motion. Id. For the following reasons, Defendants' motion to dismiss is denied, Defendants' motion to strike class allegations is denied, and Alpha Tech's motion for class certification is entered and continued to a more appropriate point in the case.

         Legal Standard

         A Rule 12(b)(6) motion challenges the sufficiency of the complaint. See, e.g., Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). A complaint must provide "a short and plain statement of the claim showing that the pleader is entitled to relief, " Fed.R.Civ.P. 8(a)(2), sufficient to provide defendant with "fair notice" of the claim and the basis for it. Bell Ail. Corp. v. Twombly, 550 U.S. 544, 555 (2007). This standard "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While "detailed factual allegations" are not required, "labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. The complaint must "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). "'A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Mann v. Vogel, 707 F.3d 872, 877 (7th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). In applying this standard, the Court accepts all well-pleaded facts as true and draws all reasonable inferences in favor of the non-moving party. Mann, 707 F.3d at 877.

         Background

         Alpha Tech alleges that Defendants sent eight unsolicited faxes to Alpha Tech between January 12, 2012 and April 26, 2012, R. 1 ¶¶ 13-15, copies of which it attached to its complaint. R. 1-1. The following is a list of the faxes by date, with a short description of the content of each fax:

January 16, 2012: offers a "5% rebate on Rubbermaid Commercial Products, " R. 1-1 at 2;
January 19, 2012: offers a "5% rebate on Purchases of Open Diversey Products, " id. at 3;
February 15, 2012: provides a "price change notification" for certain products, states "Electronic Pricing Tools Available to You 24/7!" and explains how customers can get up-to-date prices on the Legasse website, id. at 4;
March 15, 2012: provides "price change notification" for certain products, states "Electronic Pricing Tools Available to You 24/7!" and explains how customers can get up-to-date prices on the Legasse website, id. at 5;
March 20, 2012: encourages the recipient to "Place Your Order Today!" for a "Hot Paper Item, Quality hand drying towels for use in commercial restroom dispensers, " id. at 6;
Illegible Dated: encourages the recipient to "Place Your Order Today!" for a "New Paper Item, Brighter and whiter toilet tissue that is softer and more absorbent to provide at-home quality, " id. at 7;
April 25, 2012: informs the "Valued Customer" that the "Customer Care Team is currently experiencing difficulties with our email system, " and encourages customers to "continue to place orders via" phone or internet, id. at 8;
April 26, 2012: informs the "Valued Lagasse Customer" that "service has been successfully restored to the Lagasse Email system, " id. at 9.

         All eight of the faxes include the LagasseSweet logo. R. 1-1 at 2-9. All eight of the faxes state, "If you have received this fax in error, please accept our apologies and call toll free 877.385.4440 to be removed from our list." Id.

         Alpha Tech alleges that Defendants sent the faxes without the statutorily mandated "opt-out" message. R. 1 ¶¶ 18, 29. Alpha Tech also alleges that the faxes caused Alpha Tech to lose paper and toner in printing the faxes, and cost Alpha Tech employee time, as the employees reviewed and routed the faxes. Id. ¶ 36. Alpha Tech alleges that it "had not invited or given permission to Defendants to send the faxes." Id. ¶ 15.

         Alpha Tech also seeks certification the following class of individuals:

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, and (3) which Defendants did not have prior express ...

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