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Practice Management Support Services, Inc. v. Appeal Solutions

March 1, 2010

PRACTICE MANAGEMENT SUPPORT SERVICES, INC. PLAINTIFF
v.
APPEAL SOLUTIONS, INC., RANDALL FUCHES, AND TAMMY TIPTON, DEFENDANTS.



The opinion of the court was delivered by: Michael T. Mason, United States Magistrate Judge.

MEMORANDUM OPINION AND ORDER

Plaintiff Practice Management Support Services, Inc. ("plaintiff" or "Practice Management") filed this action against defendants Appeal Solutions, Inc. ("ASI"), Randall Fuchs ("Fuchs") and Tammy Tipton ("Tipton") (collectively defendants) in the Circuit Court of Cook County. Defendants subsequently removed this action to the Northern District of Illinois. In the second amended class action complaint, the operative complaint in this case, Practice Management alleges that defendants sent unsolicited advertisements through telephone facsimile machines to plaintiff and thirty-nine or more other persons similarly situated. Plaintiff, individually and on behalf of others similarly situated, asserts the following claims: violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA") (Count I), common law conversion due to defendants' permanent misappropriation of the putative class members' fax machines, toner, paper, and employee time (Count II), and violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS § 505/1 et seq. ("ICFA") (Count III). Plaintiff has not moved to certify a class, or otherwise placed evidence before this Court as to the forty or more purportedly similarly situated individuals.

Presently before the Court is defendants' motion for summary judgment. For the reasons stated below, that motion is granted.

I. STIPULATED FACTS*fn1

ASI is a foreign corporation with its principal place of business in League City, Texas. The individual defendants, Fuchs and Tipton, are the co-owners and sole employees of the company. ASI's customers are in the medical billing and claim resolution business. ASI maintains a website which it uses to provide information to prospective customers. That website includes a form that is used to collect information from persons and businesses interested in the products and services offered by ASI. Defendants contend that John Zulaski ("Zulaski") visited ASI's website on September 17, 2001, identified himself as the "president" of "Practice Management" and provided a mailing address in Mt. Prospect, Illinois, a telephone number, and an email address. In support, defendants cite the Affidavit of Tammy Tipton (the "Tipton Affidavit"). Plaintiff disputes defendants' proposed facts, and affirmatively states that it "lacks sufficient knowledge to admit or deny, but demands strict proof thereof."

Defendants rely on the Tipton Affidavit to show that, while entering his information on ASI's website, Zulaski also provided his fax number, 847-797-0583. Defendants assert that the "web form did not require [Zulaski] to enter his fax number in order to submit his contact information." Plaintiff disputes these assertions, and again states that it lacks sufficient knowledge to respond and demands "strict proof thereof." Defendants contend that after Zulaski "voluntarily" provided his fax number, ASI sent "various faxes, all of which were sent subsequent to September 21, 2001." In response, plaintiff "admits only that it received three-page faxes from defendants on July 18, 2006 and August 27, 2007." Plaintiff attached as exhibit E to its response a document it describes, in that brief, as "the August 27, 2007 fax." Although not presented in a form that complies with Local Rule 56.1, we have considered this evidence in connection with the pending motion. The fax is dated August 24, 2007 and addressed to "John E. Zulaski" at fax number "847-797-0583." The cover sheet also indicates that the fax is from Fuchs, is two pages long, and involves "ERISA Appeals Audio conference." According to the data strip at the top of the document, Practice management received the fax on "08/27/07 14:07:38 ET." This is enough to create a question of fact as to the specific date of the second fax. However, we need not resolve the parties' dispute over that date, or the length of either fax, in order to resolve this motion. Rather, we need only recognize the parties' agreement that Practice Management received a multi-page fax from ASI on July 17, 2006 and a second fax in August 2007. These two faxes form the basis of plaintiff's claims against defendants.

II. LEGAL STANDARD

Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, along with any affidavits, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Oates v. Discovery Zone, 116 F.3d 1161, 1165 (7th Cir. 1997) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548 (1986)). This Court must consider the evidentiary record in the light most favorable to plaintiff, the non-movant, and draw all reasonable inferences in its favor. Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002). The movant bears the burden of establishing the absence of any issues of material fact and right to judgment as a matter of law. Santaella v. Metropolitan Life Ins. Co., 123 F.3d 456, 461 (7th Cir. 1997) (citations omitted). However, to avoid summary judgment, the non-movant must go beyond the pleadings and "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505 (1986); see also McMillian v. Svetanoff, 878 F.2d 186, 188 (7th Cir. 1989) ("A party . . . who bears the burden of proof on a particular issue may not rest on its pleadings but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact for trial") (citation omitted). The "mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient to show a genuine issue of material fact." Weeks v. Samsung Heavy Indus. Co. Ltd., 126 F.3d 926, 933 (7th Cir. 1997) (citing Anderson, 477 U.S. at 252). Rather, a genuine issue of material fact exists where "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.

III. ARGUMENT

The TCPA prohibits, among other things, the sending of unsolicited advertisements via facsimile. 47 U.S.C. § 227(b)(1)(C). It is undisputed that ASI sent plaintiff two multi-page faxes in the summer of 2007. Defendants argue that plaintiff voluntarily consented to receiving faxed communications, and therefore the faxes were not "unsolicited" and did not violate the TCPA as a matter of law. See 47 U.S.C. § 227(a)(4) (exempting from prohibited solicitations messages sent "to any person with that person's prior express invitation or permission") and (a)(5) (defining an "unsolicited advertisement" 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."). We must determine if any issue of law or question of fact precludes summary judgment on this claim.

In their statement of undisputed material facts submitted pursuant to Local Rule 56.1, defendants assert that on September 17, 2001, Zulaski "voluntarily provided" plaintiff's fax number, 847-797-0583, even though defendants' web form did not require Zulaski to enter that fax number in order to submit his contact information. Plaintiff has not placed any evidence in the record to rebut these material facts. Defendants argue that, as a result of this omission, their facts are deemed admitted and they are entitled to judgment as a matter of law. See Ammons v. Aramark Uniform Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004) (affirming summary judgment against plaintiff and noting that "a district court is entitled to expect strict compliance with Rule 56.1.") (citation omitted).

Pursuant to Local Rule 56.1(b), a party opposing summary judgment must respond to each numbered paragraph in the moving party's statement and "includ[e], in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon" in opposing that statement. Thus, to avoid summary judgment, plaintiff was required to "show what evidence it has that would convince a trier of fact to accept its version of events." Johnson v. Cambridge Indus., Inc. 325 F.3d 892, 901 (7th Cir. 2003) (quoting Schacht v. Wisconsin Dep't of Corr., 175 F.3d 497, 504 (7th Cir. 1999)). Aside from the August 2007 fax, plaintiff did not submit any contradictory evidence. Therefore, defendants' assertion that Zulaski voluntarily provided the fax number and remaining statements of material fact are deemed admitted as a matter of law. See Local Rule 56.1(b)(3)(C) ("All material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party."); Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005) (explaining that summary judgment "is not a dress rehearsal or practice run; it is the put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events.") (quotations omitted); Brown v. New York Life Ins. Co., 2008 U.S. Dist. LEXIS 2942, *24 (N.D. Ill. Jan. 15, 2008) (deeming plaintiffs' conclusory responses and demand for "strict proof" admissions and entering summary judgment in favor of defendants).

Plaintiff also argues that "the mere distribution of a fax number cannot be deemed to equate to 'express' permission under the TCPA." In support, Practice Management relies on Jemiola v. XYZ Corp., 802 N.E.2d 745, 749 (Ohio Misc. 2003), which held that "[c]onsent may not be inferred from the mere distribution or publication of a fax number." Jemiola does not preclude judgment on plaintiff's TCPA claim. In that case, plaintiff stated in sworn affidavits that she did not give defendants express invitation or permission to fax the advertisements to her, and defendants did not submit any evidence to the contrary. Id. at 748. Those facts are not present here. Accordingly, we find that plaintiff's voluntarily communication of its fax number precludes Practice Management from asserting that the faxes were unsolicited under the TCPA. See, e.g. Landsman & Funk P.C. v. Loran Business Ctr., Inc., 2009 U.S. Dist. LEXIS 18114, *4 (W.D. Wis. March 9, 2009) (granting motion to dismiss TCPA claim and holding that "[b]y sending its fax number to defendant, plaintiff cannot assert that the fax advertisements it received . . . were 'unsolicited' so as to fall within the category of fax advertisements regulated under 47 U.S.C. § 227.").

Next, plaintiff contends that even if defendants had express permission to send the faxes, its TCPA claim must stand because the August 27, 2004 fax does not contain the required "opt-out" notice. As an initial matter, we find that this argument fails due to the procedural deficiencies discussed above. See Local Rule 56.1(b)(3)(C); Johnson, 325 F.3d at 898-902 (affirming summary judgment entered in favor of defendant ...


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