United States District Court, D. Maryland
WENDELL H. STONE COMPANY, INC. d/b/a STONE & COMPANY Plaintiff
CHESAPEAKE PLYWOOD, LLC. Defendant
MEMORANDUM AND ORDER RE: MOTION TO DISMISS
J. Garbis United States District Judge
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.
Wendell H. Stone Company is a concrete and construction
supply business. Plaintiff alleges that at a time relevant
hereto,  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”).
instant motion, Defendants seek dismissal of all claims due
to the absence of subject matter jurisdiction, contending
that Plaintiff lacks standing to sue.
motion to dismiss under Rule 12(b)(1) presents the question
of whether this Court has jurisdiction to adjudicate 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).
The Cause of Action
Telephone Consumer Protection Act provides, in pertinent
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).
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. §
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