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LUTZ APPELLATE SERVS. v. CURRY

July 28, 1994

LUTZ APPELLATE SERVICES, INC.
v.
RODNEY CURRY, et al.



The opinion of the court was delivered by: HARVEY BARTLE, III

 Bartle, J.

 As new technology emerges, the appearance of related legal issues seems never to be far behind. This is such a case. It concerns the prohibitions on the use of the now ubiquitous facsimile ("fax") machine under the Telephone Consumer Protection Act of 1991 ("Act"), 47 U.S.C. ยง 227.

 Plaintiff, Lutz Appellate Services, Inc., filed the present action against a former employee, Rodney Curry, and his business partner, Douglas Taylor, individually and trading as Curry & Taylor. Plaintiff seeks damages for two alleged violations of the Act. The case is currently before the court on defendants' motion to dismiss for failure to state a claim for relief under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

 A complaint should be dismissed for failure to state a claim only where "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984). All well pleaded factual allegations in the complaint are assumed to be true and are viewed in the light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421, 23 L. Ed. 2d 404, 89 S. Ct. 1843 (1969).

 Plaintiff's complaint alleges that on two occasions, defendants faxed unsolicited messages to Lutz Appellate Services. The first of these messages reads as follows:

 
CURRY & TAYLOR
 
IS NOW HIRING
 
ALL POSITIONS
 
CALL TODAY 1-800-222-8738

 The second states:

 
CURRY & TAYLOR
 
-APPELLATE SPECIALISTS ...

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