Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kensington Physical Therapy, Inc. v. Jackson Therapy Partners, LLC

United States District Court, Fourth Circuit

October 4, 2013

KENSINGTON PHYSICAL THERAPY, INC., Plaintiff,
v.
JACKSON THERAPY PARTNERS, LLC, Defendant.

AMENDED MEMORANDUM OPINION

ALEXANDER WILLIAMS, Jr., District Judge.

Plaintiff Kensington Physical Therapy, Inc. ("Plaintiff") brings this action against Defendant Jackson Therapy Partners, LLC ("Defendant"). Plaintiff asserts a putative class action claim under the Telephone Consumer Protection Act ("TCPA"). Pending before the Court is Defendant's Renewed Motion to Dismiss in Light of the Supreme Court's Decision in Genesis Healthcare or, in the Alternative, to Certify Issues for Review by the Fourth Circuit ("Renewed Motion to Dismiss"). The Court has reviewed the entire record and deems a hearing unnecessary. For the reasons that follow, the Court DENIES Defendant's Renewed Motion to Dismiss.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff is a Maryland LLC whose principal place of business is Gaithersburg, Maryland. Defendant is a Georgia LLC whose principal place of business is either Georgia or Florida. Plaintiff generally alleges that Defendant has transmitted unsolicited advertisements via facsimile ("fax") to Plaintiff and many other recipients on various occasions.

In response, on January 24, 2011, Plaintiff sent Defendant a demand letter. The letter accuses Defendant of sending the unsolicited faxes in violation of the TCPA and demands that Defendant pay statutory damages for each violation. Doc. No. 13-3 at 1-2.

On February 17, 2011, Defendant sent a settlement offer ("Offer") to Plaintiff. Doc. No. 13-4. The Offer is worded broadly and purports to cover all claims for violations of the TCPA or related statutes or doctrines. The Offer also purports to provide: $1, 500 for each violation of the applicable statute; any additional compensation dictated by a state law doctrine; attorney fees and costs; and injunctive relief. Id. at 1-2. The Offer further states that Defendant would furnish Plaintiff with the following relief to the extent the Offer failed to do so as worded:

"[A]ny such other relief which is determined by a court of competent jurisdiction to be necessary to fully satisfy all of the individual claims of [Plaintiff]... arising out of or related to the transmission of [fax] ads sent to [Plaintiff]... by or on behalf of [Defendant]."

Id. at 2.

The Offer contains some language that one could construe as a limitation. For instance, the Offer states that it is "for settlement purposes only." Id. at 1. Defendant also states in the Offer that it "does not admit any liability to [Plaintiff] or others and makes this [O]ffer solely to avoid the expense and inconvenience of litigation." Id. The Offer does not explicitly state that it included an offer for judgment to be entered against Defendant. Evidently, Plaintiff did not respond to the Offer.

On September 1, 2011, Plaintiff filed a Class Action Complaint ("Complaint") pursuant to Rule 23 of the Federal Rules of Civil Procedure. Doc. No. 1. The Complaint generally alleges that Defendant violated federal and state laws prohibiting the transmission of unsolicited fax ads.

On September 26, 2011, Defendant offered to settle under the same terms as its February Offer. See Doc. No. 13-5. Plaintiff allegedly rejected this offer on September 28, 2011.

On October 12, 2011, Defendant supplemented its Offer ("Supplemental Offer"). See Doc. No. 13-6. Defendant's Supplemental Offer is essentially the same as its original Offer except that Defendant explicitly (1) agreed to have a judgment entered against it and (2) waived any requirement that the judgment be confidential. Id. at 2.

On November 4, 2011, Defendant filed a Motion to Dismiss for lack of standing. Doc. No. 13. Defendant argued that both its Offer and Supplemental Offer rendered Plaintiff's putative class action moot as it made the Offers before the certification of the putative class.

On July 30, 2012, the Court issued a Memorandum Opinion and Order ("Opinion") denying Defendant's Motion to Dismiss. Doc. Nos. 22-23; see also Kensington Physical Therapy, Inc. v. Jackson Therapy Partners, 880 F.Supp.2d 689 (D. Md. 2012). In reaching this disposition, the Court first analyzed whether the Offer and Supplemental Offer were complete settlement offers within the meaning of Simmons v. United Mortgage & Loan Investment, LLC, 634 F.3d 754 (4th Cir. 2011). The Court concluded that the original Offer was not a complete settlement offer within the meaning of Simmons, but that the Supplemental Offer was. Acknowledging that Plaintiff had yet to move for class certification, the Court considered whether the Supplemental Offer mooted Plaintiff's putative class action. Relying on the Third Circuit's decision in Weiss v. Regal Collections, 385 F.3d ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.