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Lyngaas v. J. Reckner Associates, Inc.

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

July 31, 2018

BRIAN LYNGAAS, D.D.S., Plaintiff,
v.
J. RECKNER ASSOCIATES, INC. D/B/A RECKNER HEALTHCARE, Defendant.

          ORDER DENYING DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS (DKT. 15)

          TERRENCE G. BERG UNITED STATES DISTRICT JUDGE

         Plaintiff is a dentist who received what he considered to be a “junk fax” on his office fax machine. He seeks to bring a class action on behalf of similarly besieged dentists. Defendant moves for judgment on the pleadings, claiming that the faxed communication at issue does not constitute an “advertisement” as defined by the Telephone Consumer Protection Act. 47 U.S.C. § 227(b)(1)(C). The Court finds that the fax at issue is an advertisement, and so Defendant's motion will be DENIED.

         BACKGROUND

         Plaintiff Brian Lyngaas, D.D.S. (“Plaintiff” or “Dr. Lyngaas”) is a dentist in Livonia, Michigan. On January 5, 2017, Dr. Lyngaas was unpleasantly surprised to discover the following unsolicited faxed communication on his office fax machine:

         (Image Omitted)

         As can be seen from the face of the fax, Defendant J. Reckner Associates, Inc. d/b/a Reckner Healthcare (“Defendant” or “Reckner Healthcare”) sought to enlist Dr. Lyngaas as a survey taker. In exchange for 20 minutes of Dr. Lyngaas's time, Reckner Healthcare offered to pay Dr. Lyngaas $30.

         Plaintiff alleges, which for purposes of this motion the Court must presume to be true, that Defendant is a for-profit pharmaceutical marketing research firm (Dkt. 1, ¶ 11). Plaintiff claims that Defendant collects data from medical professionals, and then sells that data to clients in the health care, pharmaceutical, and medical device industries. Id. ¶ 12.

         Defendant, for its part, does not deny that it sent the fax. Rather, Defendant contends that, as a matter of law, this fax is not an “advertisement” for purposes of the TCPA. For the reasons set out below, I conclude that the fax is an advertisement as defined in the TCPA.

         ANALYSIS

         The same standard for deciding a Rule 12(b)(6) motion to dismiss applies to a Rule 12(c) motion for judgment on the pleadings. See Roth v. Guzman, 650 F.3d 603, 605 (6th Cir. 2011). A Rule 12(b)(6) motion tests the sufficiency of the complaint. To survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

         Whether a fax constitutes an advertisement under the TCPA is a question of law. See 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”).[1] 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 in the TCPA 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 otherwise.” 47 U.S.C. § 227(a)(5); 47 C.F.R. § 64.1200(f)(1). Relying on dictionary definitions to flesh out the meaning of the word “advertising, ” in Sandusky, the Sixth Circuit explained the scope of this term under the TCPA as follows:

Advertising is “[t]he action of drawing the public's attention to something to promote its sale, ” Black's Law Dictionary 65 (10th ed. 2014), or “the action of calling something (as a commodity for sale, a service offered or desired) to the attention of the public, ” Webster's Third New International Dictionary 31 (1986). So material that advertises something promotes it to the public as for sale. For another thing, we know what's advertised-here, the “availability or quality of any property, goods, or services”-must be commercial in nature. Commercial means “of, in, or relating to commerce”; “from the point of view of profit: having profit as the primary aim.” Webster's Third at 456. It's something that relates to “buying and selling.” Black's Law Dictionary 270 (6th ed. 1990). So to be an ad, the fax must promote goods or services to be bought or sold, and it should have profit as an aim.

Sandusky, 788 F.3d at 221-22 (emphasis in original).

         Defendant argues that the plain language of the fax establishes that it is not an advertisement because it does not “advertis[e] the commercial availability or quality of any property, goods, or services.” 47 U.S.C. § 227(a)(5). Defendant asserts that the fax does not offer to sell any goods or services to Plaintiff. Thus, according to Defendant, the fax cannot be an advertisement. ...


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