United States District Court, D. Minnesota
Sandusky Wellness Center LLC, a Ohio limited liability company, individually and as the representative of a class of similarly-situated persons, Plaintiff,
Medtox Scientific, Inc., Medtox Laboratories, Inc. and John Does 1-10, Defendants.
Glen L. Hara, Esq. and Anderson & Wanca, Rolling Meadows, IL, Brant D. Penney and Reinhardt, Wendorf & Blanchfield, St. Paul, MN, counsel for plaintiff.
Robert I. Steiner, Esq. and Kelley, Drye & Warren LLP, New York, NY and Jeffrey R. Mulder, Esq. and Bassford Remele, PA, Minneapolis, MN, counsel for defendants.
DAVID S. DOTY, District Judge.
This matter is before the court upon the cross motions for summary judgment by plaintiff Sandusky Wellness Center, LLC (Sandusky) and defendants Medtox Scientific, Inc., and Medtox Laboratories, Inc. (collectively, Medtox). Based on a review of the file, record, and proceedings herein, and for the following reasons, the court grants Medtox's motion and denies Sandusky's motion.
This dispute under the Telephone Consumer Protection Act (TCPA) arises from an unsolicited facsimile advertisement sent to Sandusky by Medtox on February 21, 2012. The background of this action is fully set out in the court's previous order dated August 5, 2014, and the court recites only those facts necessary for disposition of the instant motion.
On February 21, 2012, Medtox sent a facsimile to Sandusky's fax number. See Lang Decl. Ex. 1. It is undisputed that the fax advertises lead testing services. Id . The fax did not have a cover sheet and did not identify its intended recipient. See id. The record shows, however, that Medtox intended to send the fax to Dr. Bruce Montgomery, a non-party who worked out of Sandusky's office, but was not a Sandusky employee. Montgomery Dep. 21:24-22:10. Dr. Montgomery used Sandusky's fax number for business purposes. Id. at 43:13-44:12. Sandusky's owner, Greg Winnestaffer, reviewed the fax, as was his practice, and forwarded it to his attorney because he believed that it constituted an unsolicited advertisement in violation of the TCPA. Winnestaffer Dep. 76:12-14, 78:8-80:10, 81:17-21, 127:5-11; 74:16-75:12, 128:11-129:2, 130:3-9.
On August 23, 2012, Sandusky filed a putative class action complaint, alleging a violation of the TCPA, 47 U.S.C. § 227(b)(1)(C). On May 8, 2013, Medtox made a settlement offer, including payment by check, to Sandusky in the amount of $3, 500. See Lang Decl. Ex. 7, ECF No. 205. The offer included a promise not to "send another facsimile to plaintiff in the future unless plaintiff specifically requests that Medtox do so." Id . Medtox's offer did not, however, address or include class-wide relief. See id. On May 9, 2013, Medtox filed a motion to dismiss, arguing that because it offered Sandusky complete relief on its individual claim, Sandusky no longer had a personal stake in the outcome of the litigation, thereby rendering the action moot. The court denied the motion, concluding that because the offer did not provide class-wide relief, the offer did not moot the action. ECF No. 59, at 6. Medtox then made an offer of judgment under Fed.R.Civ.P. 68 to Sandusky, this time including relief for the class as a whole. Lang Decl. Ex. 8.
On August 5, 2014, the court denied Sandusky's motion for class certification and granted Medtox's motion to limit the case to the February 21, 2012, facsimile. Both parties now file motions for summary judgment.
I. Standard of Review
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material only when its resolution affects the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party. See id. at 252.
On a motion for summary judgment, the court views all evidence and inferences in a light most favorable to the nonmoving party. See id. at 255. The nonmoving party, however, may not rest upon mere denials or allegations in the pleadings but must set forth specific facts sufficient to raise a genuine issue for trial. See Celotex, 477 U.S. at 324. A party asserting that a genuine dispute exists - or cannot exist - about a material fact must cite "particular parts of materials in the record." Fed.R.Civ.P. 56(c)(1)(A). If a plaintiff cannot support each essential element of a claim, the court must grant ...