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Bridging Communities, Inc. v. Top Flite Financial

May 3, 2010

BRIDGING COMMUNITIES, INC., PLAINTIFF,
v.
TOP FLITE FINANCIAL, INC., DEFENDANT.



The opinion of the court was delivered by: Lawrence P. Zatkoff United States District Judge

Hon. Lawrence P. Zatkoff

OPINION AND ORDER

AT A SESSION of said Court, held in the United States Courthouse, in the City of Port Huron, State of Michigan, on May 3, 2010

PRESENT: THE HONORABLE LAWRENCE P. ZATKOFF UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

This matter is before the Court on Defendant's motion to dismiss [dkt 5]. The parties have fully briefed the motion. The Court finds that the facts and legal arguments are adequately presented in the parties' papers such that the decision process would not be significantly aided by oral argument. Therefore, pursuant to E.D. Mich. L.R. 7.1(e)(2), it is hereby ORDERED that the motion be resolved on the briefs submitted. For the following reasons, Defendant's motion to dismiss is GRANTED.

II. BACKGROUND

The facts of this case are uncomplicated. Plaintiff filed this lawsuit alleging that Defendant sent an unsolicited facsimile advertisement to Plaintiff's facsimile machine in violation of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227. Plaintiff purports to bring this suit on behalf of itself and a class of all similarly-situated persons. Defendant contends that the Court lacks subject-matter jurisdiction to entertain Plaintiff's TCPA claims and has moved to dismiss the complaint.

III. LEGAL STANDARD

A motion challenging the basis for the Court's subject matter jurisdiction is brought under Fed. R. Civ. P. 12(b)(1). "When subject matter jurisdiction is challenged under Rule 12(b)(1) . . . the plaintiff has the burden of proving jurisdiction in order to survive the motion." Rogers v. Stratton Indus., 798 F.2d 913, 915 (6th Cir. 1986). A Rule 12(b)(1) motion to dismiss will be granted only if, taking as true all facts alleged by the plaintiff, the Court is without subject matter jurisdiction to hear the claim. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).

IV. ANALYSIS

The TCPA prohibits, inter alia, the use of "any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine[.]" 47 U.S.C. § 227(b)(1)(C). For violations of this provision, the Act prescribes the following private right of action:

A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State-

(A) an action based on a violation of this subsection or the regulations prescribed under this ...


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