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Health One Medical Center, Eastpointe, P.L.L.C. v. Bristol-Myers Squibb Company and Pfizer, Inc.

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

July 17, 2017

Health One Medical Center, Eastpointe, P.L.L.C., Plaintiff,
v.
Bristol-Myers Squibb Company and Pfizer, Inc., Defendants.

          Stephanie Dawkins Davis Mag. Judge

          OPINION AND ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS [44, 45], DENYING AS MOOT PLAINTIFF'S MOTION TO CERTIFY CLASS [3]

          JUDITH E. LEVY United States District Judge

         Before the Court are defendants Bristol-Myers Squibb Company and Pfizer, Inc.'s motions to dismiss the amended complaint (Dkts. 44, 45), and plaintiff's motion for class certification. (Dkt. 3.)

         For the reasons set forth below, defendants' motions are granted, and plaintiff's motion is denied as moot.

         I. Background

         Plaintiff Health One Medical Center, Eastpointe PLLC has filed a putative class action against defendants Mohawk, Inc., Bristol-Myers Squibb Co. (“BMS”), and Pfizer, Inc., for alleged violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, and acts constituting common law conversion and statutory conversion under Michigan law. (Dkt. 21.) Defendant Mohawk, Inc. never appeared, and the Court granted plaintiff's motion for a default judgment against that defendant. (Dkt. 20.)

         On August 8, 2016, plaintiff received an unsolicited fax advertising several pharmaceutical products. (Dkt. 21-1 at 2.) On September 8, 2016, plaintiff received a second fax that also advertised several pharmaceutical products, including many of the products listed in the fax received in August. (Dkt. 21-2 at 2.)

         The faxes promote various drugs, listing the item number, description, regular price and discounted price for the relevant month. (Dkts. 21-1, 21-2.) To order these drugs, the customer is directed to fax, call, or email order@mohawkmedical.com. (Id.) And each fax bears Mohawk Medical's name, address, website, and email address at the top. (Id.)

         Defendant BMS produces Kenalog, and defendant Pfizer produces Depo Medrol, and both of these drugs were promoted in the August and September faxes. (Dkt. 21 at 6.) Plaintiff alleges these defendants “sent the faxes, caused the faxes to be sent, participated in the activity giving rise to or constituting the violation, or the faxes were sent on its behalf.” (Id. at 21-22.)

         Plaintiff's first claim is that the faxes do not comply with the TCPA because there is no opt-out notice that meets the statutory and regulatory requirements. (Dkt. 21 at 18-20.) For these alleged TCPA violations, plaintiff seeks statutory and/or treble damages, an injunction, and any other costs and relief the Court deems just and proper. (Id. at 23-24.)

         Plaintiff also claims that the faxes amount to common law and statutory conversion, Mich. Comp. Laws § 600.2919a(1)(a).[1] When the faxes were sent, defendants allegedly converted plaintiff's fax machine, paper, toner, and employees' time for their own use. (Dkt. 21 at 24-27.) On this claim, plaintiff requests damages, punitive damages, attorney fees and costs, and all other relief the Court deems just and proper. (Id. at 26-27.)

         II. Legal Standard

         Defendants have brought motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), and BMS also argues the Court lacks personal jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2).

         Under Fed.R.Civ.P. 12(b)(2), “the party seeking to establish the existence of personal jurisdiction bears the burden to establish such jurisdiction.” Beydoun v. Wataniya Rests. Holding, Q.S.C., 768 F.3d 499, 504 (6th Cir. 2014). “To defeat [a motion to dismiss for lack of personal jurisdiction, a plaintiff] need only make a prima facie showing of jurisdiction.” Id. And when a motion to dismiss for lack of personal jurisdiction is filed but no evidentiary hearing is held, “the court must consider the pleadings and affidavits in a light most favorable to the [nonmoving party-here, plaintiffs].” Id. (brackets in original).[2]

         Under Fed.R.Civ.P. 12(b)(6), “[a] complaint must state a claim that is plausible on its face.” Johnson v. Moseley, 790 F.3d 649, 652 (6th Cir. 2015). A plausible claim need not contain “detailed factual allegations, ” but it must contain more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In other words, a plaintiff must plead facts sufficient to “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 369 (6th Cir. 2011). And a court considering a motion to dismiss must “construe the complaint in the light most favorable to the plaintiff and accept all allegations as true.” Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012).

         III. Analysis

         Defendant Pfizer, Inc. argues plaintiff fails to state a claim for a TCPA violation, common law conversion, and statutory conversion. Defendant BMS also argues that plaintiff fails to state a claim, and that the Court lacks personal jurisdiction over it.

         Whether Pfizer, Inc. ...


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