Antitrust Law Daily Wrap Up, PRIVACY—NDAla: Alabama Physician’s TCPA Claims Proceed Against New Jersey Company and President over Facsimile Advertising, (Mar 11, 2013)

By Tobias J. Gillett, J.D., LLM.

An Alabama physician may proceed with Telephone Consumer Protection Act claims against a New Jersey company and its president over facsimile advertising allegedly sent to his office, the federal district court in Birmingham, Alabama, has ruled (Lary v. The Doctors Answer, LLC, March 8, 2013, Smith, L.). The court had personal jurisdiction over the case, venue was appropriate in Alabama, and the physician could bring his claims against the president of the New Jersey company personally, the court held.

The Doctors Answer, LLC is a New Jersey telephone answering service. On September 19, 2012, The Doctors Answer allegedly sent a facsimile to the emergency telephone number of the Alabama physician with advertising targeting doctors.

The physician filed suit against The Doctors Answer and its president alleging that the facsimile violated the TCPA. The defendants moved to dismiss.

Personal Jurisdiction. The court initially rejected the defendants’ argument that the court did not possess personal jurisdiction over them. The court cited the United States Supreme Court’s 2012 decision in Mims v. Arrow Financial Services, LLC, 132 S. Ct. 740, for the proposition that there is a “federal interest in regulating telemarketing” and that the “federal courts [have] federal-question jurisdiction over private TCPA suits.”

Venue. The court next addressed the defendants’ contention that venue was only proper in New Jersey, where the allegedly unlawful facsimile transmission was made, rather than Alabama, where it was received. The court cited case precedent establishing that venue was proper where the injury occurred, in this case in Alabama.

Moreover, “the convenience of parties and witnesses” and “the interest of justice” did not favor transfer to New Jersey. The court initially observed that, since the “plaintiff’s choice of forum should not be disturbed unless it is clearly outweighed by other considerations,” the defendants had the burden to establish that New Jersey was the more convenient forum.

Here, the plaintiff and the plaintiff’s witnesses resided in Alabama, while the defendant and the defendant’s witnesses resided in New Jersey, rendering the venues equally convenient. The court had no information on which to weigh “the relative ease of access to sources of proof and availability of compulsory process to attendance of unwilling, and the cost of obtaining attendance of willing, witnesses.” The case would not require viewing premises in either New Jersey or Alabama, and “a judge familiar with federal law, a speedy trial, and an enforceable judgment” would be available in either venue. The defendants had not shown the venue was chosen to “vex,” “harass,” or “oppress” them.

Furthermore, the defendants had allegedly chosen to direct their activities to an Alabama resident. The court rejected their contention that the facsimile was sent “inadvertently,” noting that the facsimile consisted of advertising directed to doctors, and that it was sent to the business address of a doctor. The court observed that it would “def[y] the laws of probability to suggest that defendants’ advertising material would ‘inadvertently’ reach a member of the ‘niche community’ of defendants’ consumers.”

Failure to State a Claim. The court also denied the defendants’ motion to dismiss for failure to state a claim upon which relief can be granted. The court observed that the defendants had not provided “any argument or authority” to support their assertion that the physician had not “stated and cannot establish a claim upon which relief may be granted against [the president of The Doctors Answer], individually.” Issues without argument or legal support are deemed waived, the court noted.

Moreover, the fact that a corporation may be liable for the actions of those acting on its behalf through respondeat superior “does not relieve the individuals of their responsibility.” Individuals directly and personally involved in violating the TCPA could not “escape liability solely because they are corporate officers.”

The case is Civil Action No. CV-12-S-3510-NE.

Attorneys: Dennis A. Mastando (Mastando & Artrip LLC) for The Doctors Answer, LLC.

Companies: The Doctors Answer, LLC

Cases: Privacy AlabamaNews