United States District Court, E.D. Michigan, Southern Division
MATTHEW N. FULTON, D.D.S., P.C., individually and as the representative of a class of similarly-situated persons, Plaintiff,
ENCLARITY, INC., LEXISNEXIS RISK SOLUTIONS INC., LEXISNEXIS RISK SOLUTIONS GA INC., LEXISNEXIS RISK SOLUTIONS FL INC., and JOHN DOES 1-12, Defendants.
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
PAGE HOOD CHIEF JUDGE, UNITED STATES DISTRICT COURT.
October 24, 2016, Plaintiff filed this action, alleging that
Defendants violated the Telephone Consumer Protection Act, 47
U.S.C. § 227, and the accompanying regulations
prescribed by the Federal Communications Commission
(“FCC”), 47 C.F.R. § 64.1200 (collectively,
the “TCPA”), when Defendants sent Plaintiff an
unsolicited facsimile (the “Fax”). On December
16, 2016, the identified Defendants filed a Motion to Dismiss
[Dkt. No. 18] pursuant to Federal Rule of Civil Procedure
12(b)(6). The Motion is fully briefed, and on February 22,
2017, the Court held a hearing on Defendants' Motion. For
the reasons that follow, the Court grants Defendants'
sent the Fax to Plaintiff, a dental practice in Linden,
Michigan. A copy of the Fax is set forth below.
to receiving the Fax, Plaintiff did not have a relationship
with any of the Defendants.
filed a two-count Complaint. In Count I, Plaintiff alleges
Defendants violated the TCPA. In Count II, Plaintiff alleges
a state law conversion claim.
APPLICABLE LAW & ANALYSIS
A. Standard of Review
12(b)(6) motion to dismiss tests the legal sufficiency of the
plaintiff's complaint. Accepting all factual allegations
as true, the court will review the complaint in the light
most favorable to the plaintiff. Eidson v. Tennessee
Dep't of Children's Servs., 510 F.3d 631, 634
(6th Cir. 2007). As a general rule, to survive a motion to
dismiss, the complaint must state sufficient “facts to
state a claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). The complaint must demonstrate more than a sheer
possibility that the defendant's conduct was unlawful.
Id. at 556. Claims comprised of “labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Id. at 555.
Rather, “[a] claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
Analysis Regarding TCPA Claim
argue that Plaintiff's TCPA does not apply TCPA does not
apply to the Fax because it is not an advertiment. Whether a
fax constitutes an advertisement under the TCPA is a question
of law. Sandusky Wellness Ctr., LLC v. Medco Health
Solutions, Inc., 788 F.3d 218, 221 (6th Cir. 2015)
(“So were these faxes advertisements? It is a question
of law our court has never addressed”).
TCPA forbids 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). An “unsolicited
advertisement” is defined as “any material
advertising the commercial availability or quality of any
property, goods, or services which is transmitted to any
person without that person's prior express invitation or
permission, in writing or ...