Ari Weitzner, M.D., P.C. v. Cynosure, Inc.
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13‑P‑264 Appeals Court ARI WEITZNER, M.D., P.C. vs. CYNOSURE, INC. No. 13‑P‑264. Middlesex. October 4, 2013. ‑ March 13, 2014. Present: Graham, Sikora, & Hanlon, JJ. Practice, Civil, Class action, Judicial discretion. Rules of Civil Procedure. Due Process of Law, Class action, Jurisdiction over nonresident. Superior Court, Jurisdiction. Civil action commenced in the Superior Court Department on May 24, 2005. A motion for class certification was heard by Joseph M. Walker, III, J., and entry of final judgment was ordered by him. Todd C. Bank (Christopher J. Marino with him) for the plaintiff. Richard M. Zielinski for the defendant. SIKORA, J. The plaintiff, Ari Weitzner, M.D., P.C. (Weitzner), brought a class action complaint in Superior Court for injunctive relief and damages against the defendant, Cynosure, Inc. (Cynosure). A judge denied class certification and subsequently entered judgment on the merits of Weitzner’s individual claims. Weitzner has appealed. He contends (1) that the judge wrongly denied certification of the proposed class of plaintiffs, and (2) that the judge should not have adjudicated the merits of his individual claims because the Superior Court lacked jurisdiction over allegations of damages below the level of $ 25,000. For the following reasons, we affirm. Background. The following facts emerge from the record as undisputed. Weitzner conducts an ophthalmology practice in Brooklyn, New York; Cynosure is a manufacturer of laser and light-based technology with a principal place of business in Massachusetts. Between April 7, 2004, and May 20, 2004, Cynosure sent Weitzner four unsolicited facsimile advertisements. On May 24, 2005, Weitzner filed the class action complaint in Superior Court alleging that Cynosure had violated the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. § 227. The TCPA prohibits, inter alia, the transmission of unsolicited advertisements via facsimile. 47 U.S.C. § 227(b)(1)(C). Weitzner requested $ 1,500 in statutory damages for each violation of the TCPA and an order enjoining Cynosure from “continuing to send unsolicited facsimile advertisements.” See 47 U.S.C. § 227(b)(3). Three months later, in August of 2005, Cynosure voluntarily suspended its facsimile transmission program. In February of 2006, a judge denied Cynosure’s motion to dismiss the complaint. Weitzner subsequently ignored Cynosure’s offer to confess judgment on his individual claims. In April of 2008, Weitzner moved for certification of a nationwide class composed of: “[a]ll individuals […]