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Sparkle Hill, Inc. v. Invecor, LLC

United States District Court, D. New Jersey

October 24, 2017

SPARKLE HILL, INC., individually and as the representative of a class of similarly-situated persons, Plaintiff,
v.
Invecor, LLC, doing business as AMB Business Supply, Defendant.

          JAMES C. SHAH SHEPHERD, FINKELMAN, MILLER & SHAH, LLP PHILLIP A. BOCK BOCK, HATCH, LEWIS OPPENHEIM, LLC BRIAN J. WANCA ANDERSON WANCA On behalf of Plaintiff.

          JOHN H. KING THOMPSON, BECKER & BOTHWELL, DAVE E. KAWALA CATHERINE BASQUE WEILER SWANSON, MARTIN & BELL, LLP On behalf of Defendant.

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         In this class action for claims concerning “junk” faxes, presently before the Court is Plaintiff's motion for summary judgment. For the reasons expressed below, Plaintiff's motion will be granted as to liability only.

         BACKGROUND

         On January 24, 2007, Plaintiff, Sparkle Hill, Inc., a dry cleaning store, received an unsolicited telephone facsimile on its fax machine from Defendant, Invecor, LLC, d/b/a AMB Business Supply, which was in the business of selling cash register and office supplies. The fax was an advertisement selling paper rolls for cash register and credit card machines. Defendant had engaged Business to Business Solutions (“B2B”), which sold fax blasting services, to send out faxes to advertise its business.

         B2B gathered a list of targets from a database purchased from InfoUSA, and after payment from Defendant and Defendant's approval of the content of the fax, B2B successfully faxed 34, 668 faxes to 28, 836 different fax numbers. The fax did not contain the proper out-opt information, and Plaintiff claims that it, as well as the 28, 835 other recipients, did not consent to receiving the fax.

         Plaintiff filed a putative class action complaint against Defendant for violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227.[1] On February 25, 2016, the Court granted Plaintiff's motion for class certification, which was unopposed by Defendant. The Court approved the following class:

All persons with whom Invecor, LLC d/b/a AMB Business Supply did not have an established business relationship, who were successfully sent one or more unsolicited faxes during the period December 10, 2006, through January 24, 2007, stating, “Credit Card & Cash Register Paper Rolls” or “Cash Register & Credit Card Receipt Paper Rolls” and “AMB Business Supply 1161 Rankin Dr Troy MI 48083 Toll Free: 800-399-4030.”

(Docket No. 134 at 3, Amended Order Granting Class Certification.)

         Plaintiff, through a claims administrator, mailed the Court-approved notice (Docket No. 136) to the class members - i.e., owners of 28, 836 fax numbers that were sent Defendant's fax. Plaintiff has now moved for summary judgment in the class's favor in the amount of $17, 334, 000, which is $500 in statutory damages for each time Defendant's unsolicited fax advertisement was successfully sent to a class member's fax machine. Defendant has opposed Plaintiff's motion.[2]

         DISCUSSION

         A. Jurisdiction

         This Court has jurisdiction over Plaintiff's federal claim under 28 U.S.C. § 1331, and supplemental jurisdiction over Plaintiff's state law claims under 28 U.S.C. § 1367.

         B. Standard for Summary Judgment

         Summary judgment is appropriate where the Court is satisfied that the materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, or interrogatory answers, demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to a ...


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