United States District Court, D. Minnesota
SANDUSKY WELLNESS CENTER, LLC, an 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.
L. Hara, Brian J. Wanca, Ryan M. Kelly, and Wallace C.
Solberg, ANDERSON WANCA; Garrett D. Blanchfield, Jr., and
Brant D. Penney, REINHARDT WENDORF & BLANCHFIELD, for
I. Steiner and Geoffrey W. Castello, III, KELLEY DRYE &
WARREN LLP; Jeffrey R. Mulder and Lewis A. Remele, Jr.,
BASSFORD REMELE, P.A., for defendants.
Patrick J. Schiltz United States District Judge
MedTox Scientific, Inc. and MedTox Laboratories, Inc.
(collectively, “MedTox”) faxed an unsolicited
advertisement to plaintiff Sandusky Wellness Center, LLC
(“Sandusky”). In response, Sandusky filed this
putative class action under the Telephone Consumer Protection
Act (“TCPA”), 47 U.S.C. § 227. Sandusky now
moves to certify a class of 3, 256 persons who received the
fax, ECF No. 229, and MedTox moves to dismiss Sandusky's
lawsuit for lack of standing, ECF No. 234. For the reasons
that follow, the Court grants Sandusky's motion to
certify and denies MedTox's motion to dismiss.
is a medical clinic in Ohio. Winnestaffer Dep. 10, 24 [ECF
No. 205-2]. Its owner, Gregg Winnestaffer, is a chiropractor,
but the clinic offers more than just chiropractic services.
Id. at 20-21, 23-24, 35, 39-40. During the time
period relevant to this litigation, Dr. Bruce Montgomery, a
family practitioner, saw patients at Sandusky one day per
week. Montgomery Dep. 7, 16-17, 21-22 [ECF No. 205-6].
is a toxicology laboratory in Minnesota. Huffer Decl. ¶
4 [ECF No. 176]. MedTox provides a lead-testing service that
it markets to pediatricians and other doctors who work with
children. Huffer Dep. 13-16, 44 [ECF No. 205-4]; see
also Montgomery Dep. 36 (describing the dangers that
lead poses to children). MedTox's lead-testing service
requires a doctor to draw only two drops of blood from a
patient (instead of a whole ampule). See ECF No.
205-1; Montgomery Dep. 38-40. This makes MedTox's
lead-testing service less invasive than many other forms of
February 2012, MedTox faxed a one-page advertisement to 3,
256 healthcare providers touting its lead-testing service.
Huffer Decl. ¶¶ 7-10, 16-17; see also ECF
No. 205-1 (reproducing the fax advertisement). One of these
faxes made its way to Sandusky. The fax was intended for
Montgomery (the part-time family doctor), see Huffer
Decl. ¶¶ 7-10, 13-15, but the fax was not
specifically addressed to Montgomery, see ECF No.
205-1, and Montgomery never actually saw the fax,
see Montgomery Dep. 38. Instead, a Sandusky employee
picked up the fax and brought it to Winnestaffer, who read it
and mailed it to his attorney. Winnestaffer Dep. 76-81, 128.
This lawsuit followed.
lawsuit, Sandusky claims that MedTox's unsolicited fax
violated the TCPA because it was sent without “a proper
opt-out notice” and without the recipients'
“permission or invitation.” Am. Compl.
¶¶ 14-17 [ECF No. 174]. Sandusky claims that
MedTox's violation of the TCPA harmed it in at least four
ways: First, MedTox's fax tied up Sandusky's fax
line, preventing Sandusky from receiving other faxes or
processing credit-card payments (which “run through
the fax machine”). Winnestaffer Dep. 75-76, 81-83.
Second, MedTox's fax wasted Sandusky's paper and ink.
Id. at 74, 76, 83-84. Third, MedTox forced
Sandusky's employees to waste time processing, reviewing,
and disposing of the unwanted fax. Id. at 76-77, 84.
And fourth, MedTox's fax “interrupted the
Plaintiff's and other class members' privacy
interests in being left alone.” Am. Compl. ¶ 29;
see also Id. ¶ 3.
years ago, Sandusky moved to certify a class of
“persons who were sent advertisements by fax about
products or services offered” by MedTox. ECF No. 162 at
1; see also ECF No. 165 at 8 (proposing a narrower
class definition). Senior Judge David S. Doty denied
Sandusky's motion for class certification on the grounds
that the proposed class was not ascertainable. ECF No. 188 at
7-10. Judge Doty also questioned the commonality of the
asserted claims and the adequacy of the proposed class
representative and class counsel. Id. at 10 n.4.
appeal, the United States Court of Appeals for the Eighth
Circuit reversed the denial of class certification.
Sandusky Wellness Ctr., LLC v. MedTox Sci., Inc.,
821 F.3d 992, 998 (8th Cir. 2016). The Eighth Circuit held
that the proposed class was ascertainable. Id. at
995-98. It also held that the proposed class met the
commonality and predominance requirements for class
certification. Id. at 998. It then remanded the case
for further proceedings. Id.
remand, the case was reassigned to the undersigned, ECF Nos.
223, 225, and Sandusky renewed its motion for class
certification, ECF No. 229. MedTox responded by moving to
dismiss the case for lack of standing. ECF No. 234.
Standard of Review
requirement of standing is rooted in the fact that Article
III of the United States Constitution limits the power of
federal courts to “cases” or
“controversies.” U.S. Const. art. III, § 2.
No “case” or “controversy” exists
unless (1) the plaintiff has suffered a “concrete and
particularized” injury; (2) the plaintiff's injury
“is fairly traceable” to the defendant's
actions; and (3) the plaintiff's injury is “likely
to be redressed by a favorable decision.” Spokeo,
Inc. v. Robins, 136 S.Ct. 1540, 1547-48 (2016).
defendant's motion to dismiss a claim for lack of
standing can be treated as either a “facial
attack” or a “factual attack” on
jurisdiction. Carlsen v. GameStop, Inc., 833 F.3d
903, 908 (8th Cir. 2016) (citation omitted). When addressing
a facial attack, a court must restrict itself to the face of
the pleadings and accept all of the plaintiff's
allegations as true. Id. When addressing a factual
attack, a court may consider matters outside of the pleadings
and weigh the evidence. Id. Here, the Court will
construe MedTox's motion to dismiss as a factual attack
on jurisdiction, and the Court will consider deposition
testimony and other evidence in the record.
argues that Sandusky lacks standing under the Supreme
Court's recent decision in Spokeo. But
Spokeo simply held that a “bare procedural
violation” of a statutory right-“divorced from
any concrete harm”-is not sufficient to establish
Article III standing. Spokeo, 136 S.Ct. at 1549.
Here, however, Sandusky alleges that MedTox's violation
of the TCPA created several types of concrete harm.
Specifically, Sandusky alleges that MedTox's illegal act