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.

Wendell H. Stone Co., Inc. v. Chesapeake Plywood, LLC

United States District Court, D. Maryland

May 1, 2017

WENDELL H. STONE COMPANY, INC. d/b/a STONE & COMPANY Plaintiff
v.
CHESAPEAKE PLYWOOD, LLC. Defendant

          MEMORANDUM AND ORDER RE: MOTION TO DISMISS

          Marvin J. Garbis United States District Judge

         The Court has before it Defendant's Motion to Dismiss [ECF No. 21] and the materials submitted related thereto. The Court finds no need for a hearing.

         I. BACKGROUND

         Plaintiff Wendell H. Stone Company is a concrete and construction supply business. Plaintiff alleges that at a time relevant hereto, [1] it received an unsolicited fax from Defendant Chesapeake Plywood, LLC, a seller of wood products. On August 10, 2016, Plaintiff filed the Class Action Complaint [ECF No. 1] alleging violation of the Telephone Consumer Protection Act (“TCPA”), as amended by the Junk Fax Prevention Act of 2005, 47 U.S.C. § 227. On August 23, 2016, Plaintiff filed the pending Amended Class Action Complaint [ECF No. 3] (“ACAC”).

         By the instant motion, Defendants seek dismissal of all claims due to the absence of subject matter jurisdiction, contending that Plaintiff lacks standing to sue.

         II. LEGAL PRINCIPLES

         A. Rule 12(b)(1)

         A motion to dismiss under Rule 12(b)(1) presents the question of whether this Court has jurisdiction to adjudicate the claims presented.

         The Plaintiff has the burden of proving that subject matter jurisdiction exists. Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).

         B. The Cause of Action

         The Telephone Consumer Protection Act provides, in pertinent part:

It shall be unlawful for any person within the United States . . . to use any . . . device to send, to a telephone facsimile machine, an unsolicited advertisement, unless [certain exceptions apply].

47 U.S.C. § 227(b)(1)(C).

         The recipient of a fax sent in violation of this provision may file “an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater.” 47 U.S.C. § 227(b)(3)(B).[2]

         Plaintiff alleges that Defendant sent a fax in violation of 47 U.S.C. § 227(b)(1)(C). Plaintiff alleges, as to the loss caused by Defendant's action, that it suffered:

• Loss of the paper and ink used to print the fax,
• Loss of fax machine availability while receiving the ...

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.