United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
M Dow Jr.United States District Judge
JT's Frames, Inc. (“Plaintiff”) brings this
proposed class action against Defendants Jesse Casares, Joe
Casares, Patricia Bezabaleta a/k/a Patricia Zabeleta, David
A. Ozuna, John Medina, Marketech d/b/a Interfax.net, Avigdor
Tessler, Jay M. Kamenetsky, and Does 1-10 for alleged
violations of the Telephone Consumer Protection Act of 1991
(“TCPA”), as amended by the Junk Fax Prevention
Act of 2005 (“JFPA”). In this opinion, the Court
will refer to Defendants Marketech Corp.
(“Marketech”), Avigdor Tessler
(“Tessler”) and Jay M. Kamenetsky
(“Kamenetsky”) collectively as “the
Marketech Defendants.” Currently before the Court is
the Marketech Defendants' motion to dismiss
Plaintiff's Second Amended Complaint (“SAC”)
for lack of subject matter jurisdiction, lack of personal
jurisdiction, and failure to state a claim , as well as
Plaintiff's motion to take limited jurisdictional
discovery . For the reasons explained below,
Plaintiff's motion to take limited jurisdictional
discovery  is granted and the Marketech Defendants'
motion to dismiss  is denied without prejudice to renewal
following limited jurisdictional discovery. This case is set
for status hearing on March 6, 2018. The parties are directed
to file a proposed schedule for jurisdictional discovery no
later than March 1, 2018.
is an Illinois corporation. Plaintiff alleges on information
and belief that Marketech is a Texas corporation; that
Tessler is Marketech's President and CEO and a resident
of Texas; and that Kamenetsky is Marketech's Vice
President of Sales and also a resident of Texas. Plaintiff
alleges generally that the Court “has personal
jurisdiction over Defendants, ” including the Marketech
Defendants, “because Defendants transact business
within this judicial district, have made contacts within this
judicial district, and have committed tortious acts within
this judicial district.”  at 3.
particular, Plaintiff alleges that between September 20 and
October 6, 2015, a fax advertisement (the “Fax”)
“was transmitted to Plaintiff's fax number by
Defendants utilizing a telephone facsimile machine, computer,
or other device.”  at 5; see also [38-1] (copy of
the Fax). The Fax is an advertisement of a Texas travel
agency (the “Travel Agency”) owned and operated
by Defendants Jesse Casares, Joe Casares, and Zabeleta
(collectively, the “Travel Agency Defendants”)
promoting an “END OF SUMMER Super Sale” for a
variety of vacation destinations. “The Fax transmitted
successfully and a copy of it was printed from
Plaintiff's fax machine, using Plaintiff's paper and
ink toner.”  at 5.
alleges on information and belief that Marketech is a fax
broadcaster and “physically transmitted the Fax to
Plaintiff.”  at 6. Plaintiff also alleges on
information and belief that Marketech “selected
Plaintiff's fax number from a database of recipient fax
numbers that [it] maintain[s] and use[s]” and that it
“actively solicit[s] third party advertisers to compile
the database.” Id. Plaintiff further alleges
on information and belief that Marketech “determined
the number and frequency of transmissions for the Fax,
” “created and w[as] responsible for the opt-out
notice on the Fax, ” and “handled the opt-out
requests for the Fax.” Id. Plaintiff alleges
that “[t]he phone number provided on the Fax for
removal of fax numbers” is Marketech's number.
Id. Plaintiff also alleges on information and belief
that Tessler and Kamenetsky “had direct and personal
participation in creating the opt-out notice for the Fax,
handling the opt-out requests for the Fax, in the decision of
sending the Fax, maintaining and using the database of
recipient fax numbers to which the Fax was sent, and in
determining the number and frequency of transmissions for the
on these allegations, Plaintiff alleges a single claim
against all Defendants for violation of the JFPA, 47 U.S.C.
§ 227. Plaintiff alleges that the Fax was unsolicited
and that each Defendant had a high degree of involvement in
sending the Fax. Plaintiff also alleges that the Fax did not
have the opt-out notice that is required to maintain an
affirmative defense under the JFPA.
Marketech Defendants move to dismiss Plaintiff's SAC
pursuant to Rule 12(b)(1) for lack of subject matter
jurisdiction, Rule 12(b)(2) for lack of personal
jurisdiction, and Rule 12(b)(6) for failure to state a claim.
The threshold jurisdictional issues must be addressed first.
See Leibovitch v. Islamic Republic of Iran, 188
F.Supp.3d 734, 744 (N.D. Ill. 2016). Because
“subject-matter jurisdiction generally should be
considered before personal jurisdiction, ” the Court
will begin its analysis with the Marketech Defendants'
Rule 12(b)(1) argument. Central States, Se. & Sw.
Areas Pension Fund v. Reimer Express World Corp., 230
F.3d 934, 939 n.2 (7th Cir. 2000); see also El-Khader v.
Perryman, 264 F.Supp.2d 645, 648 (N.D. Ill. 2003).
Subject Matter Jurisdiction
challenge Plaintiff's standing to bring a JFPA claim. A
motion to dismiss for lack of standing is a challenge to the
court's subject matter jurisdiction under Rule 12(b)(1).
See Scanlan v. Eisenberg, 669 F.3d 838, 841 (7th
Cir. 2012); Jimenez v. Illinois, 2012 WL 174772, at
*2 (N.D. Ill. Jan. 18, 2012); Smith v. GC Services
Limited Partnership, 2017 WL 2629476, at *1 (S.D. Ind.
June 19, 2017). In considering a motion under Rule 12(b)(1),
the Court “accept[s] as true all well-pleaded factual
allegations and draw[s] reasonable inferences in favor of the
plaintiff.” Bultasa Buddhist Temple of Chicago v.
Nielsen, 878 F.3d 570, 573 (7th Cir. 2017).
Marketech Defendants argue that, pursuant to Stoops v.
Wells Fargo Bank, N.A., 197 F.Supp.3d 782, 805 (W.D. Pa.
2016), Plaintiff lacks standing to bring this suit because it
is a “professional plaintiff” that has been the
lead plaintiff in at least four prior TCPA cases.  at 14.
The Marketech Defendants surmise that “Plaintiff is a
junk fax litigation business that happens to sell frames on
the side, rather than a frame business that has been
unfortunately injured.” Id.
does not compel dismissal of Plaintiff's case for lack of
subject matter jurisdiction. Most obviously, it is an
out-of-circuit district court case that has no precedential
value here. Further, it was decided at summary judgment based
on undisputed facts in the record, not on a motion to dismiss
based on the Marketech Defendants' assumption that
Plaintiff must be a professional plaintiff given its
participation in other TCPA lawsuits. The district court in
Stoops held that a Plaintiff who admittedly
purchased cell phones and cell phone minutes for the sole
purpose of receiving calls to enable her to file TCPA
lawsuits did not suffer an economic “injury in
fact” because “a plaintiff ‘cannot
manufacture standing by choosing to make expenditures based
on hypothetical future harm that is not certainly
impending.'” Stoops, 197 F.Supp.2d at 801
(quoting Clapper v. Amnesty Int'l USA, 568 U.S.
398, 402 (2013)). In this case, the Marketech Defendants do
not allege, nor provide any evidence that, Plaintiff
purchased its fax machine and fax machine supplies simply to
receive junk faxes and file JFPA claims. To the contrary,
Plaintiff alleges that it received an unsolicited Fax from
the Marketech Defendants, which used Plaintiff's fax
paper and toner, caused wear and tear on its fax machine, and
tied up its fax line. For these reasons, dismissal for lack
of subject matter jurisdiction would not be warranted even if
Stoops were binding on this Court.