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Asher & Simons, P.A. v. J2 Global Canada, Inc.

United States District Court, D. Maryland

September 3, 2013

ASHER & SIMONS, P.A., et al., Plaintiffs
v.
J2 GLOBAL CANADA, INC., et al., Defendants

Decided: August 28, 2013

Page 702

For Asher & Simons, P.A., Dr. Stuart T. Zaller, LLC, Plaintiffs: Michael Craig Worsham, LEAD ATTORNEY, Law Office of Michael Craig Worsham, Forest Hill, MD.

For J2 Global Canada, Inc., J2 Global Communications, Inc., Defendants: Dana Whitehead McKee, LEAD ATTORNEY, Laura Ginsberg Abelson, Brown Goldstein and Levy LLP, Baltimore, MD; David Paul Niemeier, PRO HAC VICE, Mary Ann L Wymore, PRO HAC VICE, Greensfelder Hemker and Gale PC, St Louis, MO.

OPINION

Page 703

MEMORANDUM

James K. Bredar, United States District Judge.

Asher & Simons, P.A. and Dr. Stuart T. Zaller, LLC (" Plaintiffs" ) brought this suit against j2 Global, Inc., j2 Global Canada, Inc., Wellington Wreaths, LLC, and several individuals (" Defendants" ) alleging violations of the Telephone Consumer Protection Act (" TCPA" ), 47 U.S.C. § 227, and the Maryland Consumer Protection Act (" MCPA" ), MD. CODE ANN. COM. LAW § 14-3201. Now pending before the Court are Defendant j2 Global, Inc.'s (" j2 Global" ) motion to dismiss for lack of personal jurisdiction (ECF No. 30), Plaintiffs' motion to strike Defendant j2 Global Canada Inc.'s (" j2 Canada" ) affirmative defenses (ECF No. 44), Plaintiffs' motion for partial summary judgment (ECF No. 45), and Plaintiff Asher & Simons' motion for default judgment against Wellington Wreaths, LLC (" Wellington" ) (ECF No. 52). The issues have been briefed and no hearing is required. Local Rule 105.6. For the reasons set forth below, j2 Global's motion to dismiss for lack of personal jurisdiction will be GRANTED, Plaintiffs' motion to strike j2 Canada's affirmative defenses will be DENIED, Plaintiffs' motion for partial summary judgment will be GRANTED, and Asher & Simons' motion for default judgment will be GRANTED.

I. BACKGROUND

Plaintiffs allege that Defendants " sent, or aided and abetted or conspired to send" unsolicited facsimile advertisements to Plaintiffs during the period from May 11, 2010 through January 31, 2013. ( See Am. Compl., ECF No. 12.) The fax messages allegedly did not include the legally required opt-out notice. Plaintiffs allege that they " suffered actual damages including the loss of paper and toner, and nuisance, as a result of the receipt of unsolicited fax ads." ( Id. ¶ 31.)

Plaintiffs allege that j2 Global is the parent company of j2 Canada, which " regularly transmits large numbers of fax ads into Maryland, with the knowledge and approval of" j2 Global. ( Id. ¶ 39.) According to the amended complaint, j2 Global " is regularly updated on, has knowledge of, and directs [j2 Canada]'s regular business of sending large numbers of fax ads and related services as described above and herein, including through [j2 Canada] employee Allen Tough." ( Id. ¶ 57.) Plaintiffs allege that j2 Global is the alter ego of j2 Canada, " at least with respect to sending unsolicited fax ads."

II. LEGAL STANDARD

A motion to dismiss under Fed.R.Civ.P. 12(b)(2) is a test of the court's personal jurisdiction over the defendant. " [W]hen, as here, the court addresses the question [of personal jurisdiction] on the basis only of motion papers, supporting legal memoranda and the relevant allegations of a complaint, the burden on the plaintiff is simply to make a prima facie showing of a sufficient jurisdictional basis to survive the jurisdictional challenge." New Wellington Fin. Corp. v. Flagship Resort Dev. Corp., 416 F.3d 290, 294 (4th Cir. 2005) (quoting Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989)). The court must construe the relevant allegations in the light most favorable to the plaintiff. Id.

Fed. R. Civ. P. 12(f) permits district courts to " strike from a pleading an insufficient defense or any redundant, immaterial,

Page 704

impertinent, or scandalous matter." Motions under Rule 12(f) are generally disfavored and should be granted infrequently. Waste Mgmt. Holdings v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001); Renaissance Greeting Cards, Inc. v. Dollar Tree Stores, 227 Fed. App'x. 239, 247 (4th Cir. 2007). " Nevertheless, a defense that might confuse the issues in the case and would not, under the facts alleged, constitute a valid defense to the action can and should be deleted." 5C Wright & Miller, Fed. Prac. Proc. Civ. ยง 1380, 647 (3d ed. 2011). Furthermore, " the disfavored character of Rule 12(f) is relaxed in the context of scandalous allegations," i.e., those that " improperly cast a derogatory light on ...


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