The opinion of the court was delivered by: William J. Martini Judge
MARTIN LUTHER KING JR. FEDERAL BLDG. & U.S. COURTHOUSE 50 WALNUT STREET, P.O. BOX 419 NEWARK, NJ 07101-0419 (973) 645-6340
This matter comes before the Court on a Motion to Dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure by Defendant Afgo Mechanical Services, Inc. ("Afgo"). There was no oral argument. Fed. R. Civ. P. 78. For the reasons stated below, Defendant's Motion to Dismiss is GRANTED. Further, the request by Plaintiff Goodrich Management Corp. ("Goodrich") for class action certification pursuant to Federal Rule of Civil Procedure 23 is DENIED.
Plaintiff is a New Jersey corporation with its principal place of business in Englewood Cliffs, New Jersey. Defendant is a New York corporation with its principal place of business in Long Island City, NY. Defendant is in the business of installing and repairing commercial air conditioning, refrigeration, heating, and ventilation systems.
Plaintiff brings this action against Defendant for statutory damages and injunctive relief under the Telephone Consumer Protection Act of 1991 ("TCPA"), 47 U.S.C § 227. The TCPA is a statutory scheme concerned with nuisance telemarketing that provides for a private right of action, actual damages or a recovery in the amount of $500 per violation, and treble damages upon a showing that the violation was wilful or knowing. 47 U.S.C. § 227(b)(3).
Plaintiff alleges that on October 17, 2007 and December 23, 2008, it received unsolicited commercial advertisements from Defendant via facsimile machine (the "fax advertisements"). The fax advertisements promoted Defendant's products and services. Plaintiff contends that these advertisements were sent without its express invitation or permission, and that it did not have a prior business relationship with Defendant. Plaintiff further alleges that the advertisements did not contain the disclosure notices mandated by 47 C.F.R. §§ 227(b)(2)(D) or 64.1200(a)(3)(iii). Additionally, Plaintiff claims that Defendant sent the fax advertisements wilfully and knowingly and has, over the past four years, sent more than 10,000 similar fax advertisements to recipients across the United States, in violation of the TCPA.
Plaintiff seeks to certify the case as a class action under Fed. R. Civ. P. 23 for itself and all other persons to whom Defendant sent unsolicited faxes in violation of the TCPA. Plaintiff has described three classes of individuals that would be represented by the class action as follows:
Class A: all persons in the United States to whom, January 5, 2005 through July 8, 2005, Defendant sent or caused to be sent a fax advertisement without the person's express invitation or permission.
Class B: all persons from July 9, 2005 through July 30, 2006 to whom Defendant sent or caused to be sent a fax advertisement which did not contain a notice meeting the requirements of 47 U.S.C. § 227(b)(2)(D) without the person's express invitation or permission.
Class C: all persons from August 1, 2006 through the present, to whom Defendant sent or caused to be sent a fax advertisement which did not contain a notice meeting the requirements of 47 C.F.R. § 64.1200(a)(3)(iii).
Plaintiff asserts that its claims are typical of all three classes. Plaintiff's individual damages amount to $3000 maximum, but Plaintiff alleges that if a class action were certified, aggregate damages to the entire class would total over $5,000,000. In addition to treble damages, Plaintiff seeks an ...