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Fulton v. Enclarity, Inc.

United States District Court, E.D. Michigan, Southern Division

March 1, 2017

MATTHEW N. FULTON, D.D.S., P.C., individually and as the representative of a class of similarly-situated persons, Plaintiff,
v.
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 [#18]

          DENISE PAGE HOOD CHIEF JUDGE, UNITED STATES DISTRICT COURT.

         I. INTRODUCTION

         On 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' Motion.

         II. BACKGROUND

         Defendants sent the Fax to Plaintiff, a dental practice in Linden, Michigan. A copy of the Fax is set forth below.

         (IMAGE OMITTED)

         Prior to receiving the Fax, Plaintiff did not have a relationship with any of the Defendants.

         Plaintiff filed a two-count Complaint. In Count I, Plaintiff alleges Defendants violated the TCPA. In Count II, Plaintiff alleges a state law conversion claim.

         III. APPLICABLE LAW & ANALYSIS

          A. Standard of Review

         A Rule 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).

         B. Analysis Regarding TCPA Claim

         Defendants 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”).

         The 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 ...


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