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Ari Weitzner and Ari Weitzner, M.D., P.C., Individually and On Behalf v. Sanofi Pasteur

May 14, 2012


The opinion of the court was delivered by: Judge Caputo


Presently before the Court is the Defendants' Motion for Abstention, or, in the Alternative, to Dismiss, or, in the Alternative, to Stay Proceedings. (Doc. 20.) This matter is a putative class action seeking compensation for facsimile advertisements sent without prior express invitation in violation of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227(b)(1)(C). As the state court analogue is no longer a putative class action like the instant matter, the Court finds it substantially incongruent to be considered a parallel action and will decline to exercise Colorado River abstention. Moreover, the state court decision not to grant class certification will not be given res judicata effect as it was not a final decision on the merits. The Court will also reject the Defendants' statute of limitations argument as this action is not untimely on the face of the Complaint. Finally, the Court does not find any compelling reason to stay this matter pending the Third Circuit's rehearing in Landsman & Funk PC v. Skinder-Strauss Associates, 640 F.3d 72 (3d Cir. 2011) reh'g en banc granted, 650 F.3d 311 (3d Cir. 2011). Thus, the Defendants' Motion will be denied.


The matter before the Court is a class action lawsuit for facsimiles allegedly sent in violation of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227(b)(1)(C). Specifically, Plaintiff Ari Weitzner, a physician who practices in Brooklyn, New York, and Plaintiff Ari Weitzner, M.D., P.C., a professional corporation practicing at the same address, have filed this action, on behalf of themselves and others similarly situated, against Sanofi Pasteur, Inc. (formerly known as Aventis Pasteur Inc.), and Vaxserve, Inc. (formerly known as Vaccess America, Inc.).*fn1 While the Complaint pled diversity jurisdiction pursuant to the Class Action Fairness Act of 2005,*fn2 in light of the Supreme Court's holding in Mims v. Arrow Financial Services LLC, 132 S. Ct. 740, 747 (2012), the Court now has federal question jurisdiction under 28 U.S.C. § 1331.

The Plaintiffs claim that, beginning on April 21, 2004, the Defendants transmitted more than 10,000 facsimile advertisements to them and other members of the class. (Compl. at ¶¶ 10-11, Doc. 1.) Plaintiffs contend that they and the class members are entitled to statutory damages under the TCPA as these advertisements were sent without prior express invitation. Specifically, they bring this claim "on behalf of all persons or entities (i) whose facsimile numbers were licensed, rented or purchased by defendants Vaxserve or Sanofi from List Strategies, Inc., (ii) whose facsimile numbers did not exist in defendants' database on the date of defendants' receipt thereof from List Strategies, Inc.; and (iii) who received an unsolicited facsimile advertisement transmitted to them on behalf of defendants by VisonLab, Inc., Westfax, Inc. or Velofax LLP between February 14, 2005, and the date of the resolution of this lawsuit." (Id. at ¶ 1.) Plaintiffs and the class are seeking statutory damages, injunctive relief, attorneys' fees, and costs.

On February 14, 2005, Plaintiff Ari Weitzner filed a similar suit in the Common Pleas Court of Lackawanna County, Pennsylvania. Weitzner v. Vaccess Am. Inc. (Weitzner I), 5 Pa. D. & C. 5th 95 (Pa. Com. Pl. 2008). That action, initiated by Ari Weitzner individually and on behalf of himself and others similarly situated, was against the same two Defendants for the same "voluminous unsolicited advertisements via facsimile transmission . . . allegedly in violation of the TCPA." Id. at 97. While that class was also comprised of those "who received unsolicited facsimile advertisements from the Defendants," that class period began earlier, on January 2, 2001. Id. On June 27, 2008, in deciding a motion for summary judgment, the Common Pleas Court determined that Weitzner could not "fairly and adequately represent the class and protect the interests of the class due to his unique factual handicap." Id. at 119. Therefore, while Weitzner was allowed to pursue his claim as an individual, he could not act "as a representative plaintiff on behalf of others' interests." Id. at 122. Weitzner's individual action still appears to be pending before the Common Pleas Court.

The instant Complaint was filed in the Middle District on November 26, 2011. On February 6, 2012, the Defendants filed a motion to either abstain, dismiss, or stay the proceedings, arguing that: (1) pursuant to Colorado River abstention, the Court should abstain from this matter in light of a parallel state court proceeding; (2) the Complaint should be dismissed for res judicata as Plaintiffs' claims have been previously adjudicated in the Lackawanna County Court of Common Pleas; (3) the Complaint should be dismissed for being untimely under the statute of limitations; and (4) the action should be stayed pending the Third Circuit's revised decision in Landsman & Funk PC v. Skinder-Strauss Associates, 640 F.3d 72 (3d Cir. 2011) reh'g en banc granted, 650 F.3d 311 (3d Cir. 2011). This Motion has been fully briefed, and on April 26, 2012, oral argument was held before the Court. The issue is now ripe for the Court's determination.


I. Legal Standard

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. When considering a Rule 12(b)(6) motion, the Court's role is limited to determining if a plaintiff is entitled to offer evidence in support of their claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The Court does not consider whether a plaintiff will ultimately prevail. See id. A defendant bears the burden of establishing that a plaintiff's complaint fails to state a claim. See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).

"A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). The statement required by Rule 8(a)(2) must give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Detailed factual allegations are not required. Twombly, 550 U.S. at 555. However, mere conclusory statements will not do; "a complaint must do more than allege the plaintiff's entitlement to relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). Instead, a complaint must "show" this entitlement by alleging sufficient facts. Id.

As such, the inquiry at the motion to dismiss stage is "normally broken into three parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating whether all of the elements identified in part one of the inquiry are sufficiently alleged." Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).

Dismissal is appropriate only if, accepting as true all the facts alleged in the complaint, a plaintiff has not pleaded "enough facts to state a claim to relief that is plausible on its face," Twombly, 550 U.S. at 570, meaning enough factual allegations "'to raise a reasonable expectation that discovery will reveal evidence of'" each necessary element, Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. at 1950.

In deciding a motion to dismiss, the Court should consider the allegations in the complaint, exhibits attached to the complaint, and matters of public record. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). The Court may also consider "undisputedly authentic" documents when the plaintiff's claims are based on the documents and the defendant has attached copies of the documents to the motion to dismiss. Id. The Court need not assume the plaintiff can prove facts that were not alleged in the complaint, see City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 263 & n.13 (3d Cir. 1998), or credit a complaint's "'bald assertions'" or ...

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