United States District Court, E.D. Michigan, Southern Division
BRIAN LYNGAAS, D.D.S., individually and as the representative of a class of similarly situated persons, Plaintiff,
CURADEN AG, et al. Defendants.
& ORDER (1) GRANTING IN PART AND DENYING IN PART CURADEN
AG'S MOTION FOR SUMMARY JUDGMENT (DKT. 60); (2) DENYING
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (DKT. 62); (3)
GRANTING PLAINTIFF'S MOTION TO CERTIFY CLASS (DKT. 63);
(4) DENYING WITHOUT PREJUDICE DEFENDANTS' MOTION TO
EXCLUDE PLAINTIFF'S EXPERT WITNESS (DKT. 67); AND (5)
DENYING PLAINTIFF'S MOTION TO POSTPONE RULING ON
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (DKT. 68)
A. GOLDSMITH UNITED STATES DISTRICT JUDGE.
case, Plaintiff Brian Lyngaas contends that Defendants
Curaden AG and Curaden USA Inc. are liable under the
Telephone Consumer Protection Act (“TCPA”), 47
U.S.C. § 227, for sending him unsolicited fax
advertisements. Lyngaas has moved for summary judgment
against both Defendants (Dkt. 62), and seeks to certify a
class of similarly-situated individuals (Dkt. 63). He has
also filed a motion asking the Court to postpone ruling on
his summary judgment motion until the Court has ruled on the
class certification motion (Dkt. 68). Curaden AG has also
filed for summary judgment (Dkt. 60), and seeks to exclude
Lyngaas' expert witness (Dkt. 67). Because oral argument
will not aid the decisional process, the motions will be
decided based on the parties' briefing. See E.D.
Mich. LR 7.1(f)(2); Fed.R.Civ.P. 78(b). For the reasons that
follow, the Court (1) denies without prejudice
Defendants' motion to exclude Lyngaas' expert
witness; (2) grants in part and denies in part Curaden
AG's motion for summary judgment; (3) denies Lyngaas'
motion for summary judgment; (4) grants Lyngaas' motion
to certify class; and (5) denies Lyngaas' motion to
postpone ruling on his motion for summary judgment.
case arises out of two faxes received by Plaintiff Brian
Lyngaas, a dentist whose practice is located in Livonia,
Michigan. Plaintiff's Statement of Material Facts
(“PSMF”) ¶ 1 (Dkt. 62). On March 8, 2016 and
March 28, 2016, Lyngaas received faxes advertising the
Curaprox Ultra-Soft CS 5460 toothbrush. Id. ¶
3. Lyngaas contends that these faxes were sent in violation
of the TCPA.
Curaden AG, a Swiss entity, manufactures toothbrushes,
including the Curaprox Ultra-Soft 5460. Id. ¶
10. The faxes at issue in this case were sent at the
direction of its wholly-owned, U.S.-based subsidiary,
Defendant Curaden USA, Inc. See id. ¶ 6.
Curaden USA employee Diane Hammond created the fax
advertisements, both of which state that an order of
toothbrushes should be emailed to email@example.com or
ordered online at www.curaproxusaprofessional.com.
Id. ¶¶ 64-65.
USA is authorized to promote Curaden AG products, including
the Curaprox Ultra-Soft 5460, throughout the United States.
Id. ¶¶ 13, 15. Curaden AG authorized
Curaden USA to use its trademarks, images, graphics, and
pictures when promoting Curaden AG products. Id.
¶ 16. Curaden AG had the right to approve all marketing
done by its distributors, Deposition of Clifford zur Nieden,
Ex. 1 to Pl. Mot. for Summ. J., at 26 (Dkt. 62-2), but
Curaden USA did not need prior approval from Curaden AG to
use its marketing materials, 11/13/2017 Johnson Dep., Ex. 2
to Pl. Mot. for Summ. J., at 43 (Dkt. 62-3).
USA did not send the faxes itself, but instead paid a company
called AdMax Marketing to do so. Komniey Dep., Ex. 3 to Pl.
Mot for Summ. J., at PageID.1368, 1373 (Dkt. 62-4). Curaden
USA purchased the database and target list that was used in
the fax campaigns. PSMF ¶ 66. AdMax Marketing, in turn,
hired a company called WestFax to send the faxes.
Id. ¶ 58.
Komniey, the owner of AdMax Marketing, explained that WestFax
is a service provider that has a platform to broadcast faxes.
Komniey Dep. at 12, 83-85. To use WestFax's broadcasting
service, Komniey would visit WestFax's website, upload
the list of numbers to which the faxes would be sent, and
schedule the time and date to be sent. Id. at 85.
After the faxes were sent, Komniey would receive an email
showing the summary of the transmissions. Id. at 86.
He would then go to WestFax's website, log into his
account, and then download a report that showed which faxes
were successful and which failed. Id. at 86-87.
parties dispute how many of these faxes were successfully
sent. Lyngaas' expert, Christopher Lee Howard, opined:
It is my experience that fax systems report a successful
transmission as a result of having received an
“MCF” (message confirmation signal) from the
receiver at the end of T.30 Phase D. Therefore, there are no
instances of “false positives.”
Every fax receiver which employs ITU T.30 and confirms the
receipt of a fax is inherently “equipment which has the
capacity to transcribe text or images (or both) from an
electronic signal received over a regular telephone line onto
paper” as stipulated by the Telephone Consumer
Howard Report, Ex. 12 to Pl. Mot. for Summ. J., at 3 (Dkt.
62-13). By reviewing the reports generated by WestFax, Howard
concluded that the faxes were sent to 33, 226 recipients on
March 8, 2016, and to 32, 678 recipients on March 28, 2016.
now seeks to certify a class of individuals who received
unsolicited faxes advertising the Curaprox Ultra-Soft CS 5460
in March of 2016, as well as summary judgment against both
Defendants. Curaden AG also seeks summary judgment,
and both Defendants seek to exclude Howard's report.
MOTION TO EXCLUDE PLAINTIFF'S EXPERT
seek to exclude the testimony of Lyngaas' expert,
Christopher Lee Howard. Howard has worked for over eighteen
years as a fax consultant, is a developer of fax software,
and has designed and developed fax applications as well as a
software modem. Howard Report at 1. Defendants argue that
Howard must be excluded because his export report fails to
comply with Federal Rule of Civil Procedure 26. Federal Rule
26 provides that an expert report must contain:
(i) a complete statement of all opinions the witness will
express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming
(iii) any exhibits that will be used to summarize or support
(iv) the witness's qualifications, including a list of
all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4
years, the witness testified as an expert at trial or by
(vi) a statement of the compensation to be paid for the study
and testimony in the case.
Fed. R. Civ. P. 26(a)(2)(B)(i)-(vi). Defendants argue that
Howard's expert report does not contain his opinions or
the bases and reasons for them; the facts he relied upon to
draft his report, including the ITU T.30 document he states
he relied upon; the list of all publications he has authored
in the previous ten years; or a list of cases in which he
testified as an expert. Defs. Mot. to Exclude Expert at 3-4.
report does contain his opinions and the reasons for them -
he explains that he examined the lists of fax broadcasts and
determined that a fax was successfully transmitted to 33, 226
individuals on March 8, 2016 and that another fax was
successfully transmitted to 32, 678 recipients on March 28,
2016. Howard Report at 3. Howard stated that “[i]t is
my experience that fax systems report a successful
transmission as a result of having received an
‘MCF' (message confirmation signal) from the
receiver at the end of T.30 Phase D. Therefore, there are no
instances of ‘false positives.'” Id.
In his deposition, Howard further explained:
ITUT.30 is the document which describes fax protocol, the
signals and information that go between two fax machines in
order to communicate those pages. . . . [I]f you understand
ITUT.30 protocol and how it works, that message confirmation
signal indicates a positive signal from the receiver that it
believes that that page was received complete. So there's
no question whether or not the recipient got it or not
because the recipient confirmed that it did. . . .
[T]here's no other way for a fax confirmation to occur.
So when you have a summary report that says, you know, 30,
000 faxes were received by the recipients, the only way that
that could be stated is through the MCF signal.
Howard Dep., Ex. 3 to Defs. Mot. to Exclude Expert, at 32-34
the report is not deficient for failing to supply opinions,
it is deficient in other respects. It is missing ITU T.30,
the document upon which Howard relies. It also omits one
deposition, Pl. Resp. to Mot. to Exclude Expert at 14 (Dkt.
72), which was required by Rule 26 (a)(2)(B)(v). Regarding
the omission of certain blogs, Lyngaas contends that Howard
did not need to disclose them because his employer, not
Howard, is the “author.” Id. at 12. The
Court disagrees. Because Howard wrote the blog postings, he
is the “author” under a common understanding of
the word. See Author, Merriam-Webster, available
(“the writer of a literary work (such as a
book)”). Thus, his report falls short of the Rule
26(a)(2)(B)(iv) requirement as well.
urges the Court not to exclude Howard's report entirely,
but instead to re-open his deposition. The Court agrees that
this is appropriate, and will re-open discovery for this
limited purpose. Howard must furnish to Defendants a revised
export report no later than June 3, 2019 containing the
omitted information; if Defendants wish, they may take
Howard's deposition no later than June 13, 2019.
Defendants' motion is therefore denied without prejudice.
MOTIONS FOR SUMMARY JUDGMENT
Standard of Review
motion for summary judgment under Federal Rule of Civil
Procedure 56 shall be granted “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A genuine dispute of material fact exists
when there are “disputes over facts that might affect
the outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). “[F]acts must be viewed in the light most
favorable to the nonmoving party only if there is a
‘genuine' dispute as to those facts.”
Scott v. Harris, 550 U.S. 372, 380 (2007).
“Where the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party, there
is no genuine issue for trial.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
the movant satisfies its initial burden of demonstrating the
absence of any genuine issue of material fact, the burden
shifts to the nonmoving party to set forth specific facts
showing a triable issue of material fact. Scott, 550
U.S. at 380; Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). The nonmoving party “must do more than
simply show that there is some metaphysical doubt as to the
material facts, ” Scott, 550 U.S. at 380
(quoting Matsushita, 475 U.S. at 586), as the
“mere existence of some alleged factual
dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment, ”
id. (quoting Anderson, 477 U.S. at 247-248)
(emphasis in original); see also Babcock & Wilcox Co.
v. Cormetech, Inc., 848 F.3d 754, 758 (6th Cir. 2017)
(“A mere scintilla of evidence or some metaphysical
doubt as to a material fact is insufficient to forestall
Summary Judgment as to Curaden AG
TCPA provides that it “shall be unlawful for any person
within the United States, or any person outside the United
States if the recipient is within the United States . . . to
use 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).
Curaden AG does not dispute that the March 8, 2016 and March
28, 2016 faxes received by Lyngaas constitute
“unsolicited advertisements” within the meaning
of the statute. However, the parties dispute several other
issues that bear on summary judgment: whether this Court
lacks personal jurisdiction over Curaden AG; whether Curaden
AG is liable as a “sender” of the faxes; and
whether Curaden AG can be held liable for Curaden USA's
actions under an alter ego theory. The Court will address
each argument in turn.
This Court has jurisdiction over Curaden AG
two years ago, Curaden AG argued in its motion to dismiss
that it was not subject to this Court's jurisdiction.
While the Court denied Curaden AG's motion, Lyngaas
v. Curaden AG, No. 17-10910, 2018 WL 1251754 (E.D. Mich.
Mar. 12, 2018), Curaden AG now argues that discovery has
revealed that the Court does not have personal jurisdiction
over it. Def. Mot. for Summ. J. at 16. Curaden AG is
Court previously found that Curaden AG was subject to
Michigan's long-arm statute, Michigan Compiled Laws
§ 600.715(2), because “it created Curaden USA and
authorized it to market . . . Curaden AG's toothbrushes
in the entire United States including Michigan, ”
id. at *4, and “any nexus between business
transaction and tort shall allow limited personal
jurisdiction to operate, ” id. (quotations and
alterations omitted). This is still the case. Curaden AG
argues that it did not “do or cause to be done”
the acts that resulted in a tort; it only entered into a
distribution agreement with Curaden USA, which is not
tortious. Def. Mot. for Summ. J. at 16-17. But as this Court
already found, Michigan Compiled Laws § 600.715(2)
“has been interpreted broadly, ” and
“Curaden AG caused consequences to occur in Michigan
that resulted in an action for tort” when it created
Curaden USA and authorized it to market Curaden AG's
toothbrushes throughout the entire United States, including
Court also found that the exercise of jurisdiction over
Curaden AG comported with due process, because (i) Curaden AG
purposefully availed itself of the privilege of acting in
Michigan, (ii) the cause of action arose from Curaden
AG's activities there, and (iii) the acts of Curaden AG
or the consequences it caused had a substantial enough
connection with Michigan to make the exercise of jurisdiction
over it reasonable. Id. at *5, *8.
AG now claims that it did not purposefully avail itself of
the privilege of acting in Michigan. Def. Mot. for Summ. J.
at 18. Curaden AG points to certain testimony from Dale
Johnson and Clifford zur Nieden to show that Curaden USA had
some freedom regarding its market activities. Dale Johnson,
for example, testified that Curaden USA does not “clear
with [Curaden AG] or talk to them about what our marketing
activities are.” 11/13/2017 Johnson Dep. at 28. In
support, Curaden AG cites two Sixth Circuit cases - Smith
v. Home Depot USA, Inc., 294 Fed.Appx. 186 (6th Cir.
2008), and Bridgeport v. Still N the Water
Publishing, 327 F.3d 472 (6th Cir. 2003). But this Court
already found that those cases support the opposite position,
that Curaden AG did indeed purposefully avail itself of the
privilege of acting in Michigan. Lyngaas, 2018 WL
1251754, at *5-*6. Even though Curaden USA has freedom to
decide how to market the products, this does not
negate the Court's prior conclusion that
Curaden USA has the obligation to market products throughout
the United States. Curaden AG was not “merely aware
that their distributor was likely to market the product in
all fifty states, ” but rather “the parties'
contract required it.” Bridgeport, 327 F.3d at
480. Curaden USA was not merely given the rights to market
products in the United States; it was to use its “best
endeavors” to do so. Curaden USA was to promote the
sale of Curaden AG's products “throughout the
Territory, ” i.e. throughout the United States.
Further, the Sixth Circuit has established that
“advertising is among the activities that constitute
‘reaching out' to forum state residents.”
Bridgeport, 327 F.3d at 481 (quoting Creech v.
Roberts, 908 F.2d 75, 79 (6th Cir. 1990)).
Lyngaas, 2018 WL 1251754, at *6.
respect to the final two due process considerations noted
above, Curaden AG again puts forth arguments that this Court
rejected in connection with the motion to dismiss. For the
reasons set forth in that opinion, the Court again finds that
the exercise of jurisdiction over Curaden AG comports with
There is an issue of fact as to whether Curaden AG is a
“sender” of the faxes
now to the merits of the TCPA claim, Curaden AG argues that
it is not a “sender” of the faxes, as defined by
the FCC regulation: “the person or entity on whose
behalf a facsimile unsolicited advertisement is sent or whose
goods or services are advertised or ...