United States District Court, N.D. Illinois, Eastern Division
MYRNA ZIDEK, Successor to DR. DENNIS ZIDEK, and DR. WILLIAM P. GRESS, on behalf of Plaintiffs and Class Members defined herein, Plaintiffs,
ANALGESIC HEALTHCARE, INC., and JOHN DOES 1-10, Defendants.
MEMORANDUM OPINION AND ORDER
HARRY D. LEINENWEBER, District Judge.
Before the Court is Defendant's Motion to Dismiss. For the reasons stated herein, the Motion is denied.
This case seeks redress for the alleged harm suffered when several doctors received unsolicited fax advertisements for medical equipment. The faxes, allegedly sent by Defendant Analgesic Healthcare, include a message at the bottom telling the recipient "don't hesitate to call me with any questions you may have, " and then gives a name and phone number. Otherwise, the faxes do not contain any information indicating how the recipient might stop receiving unwanted faxes. The original Complaint, filed as a putative class action by Plaintiff Zidek on October 29, 2013, alleged that he received an unsolicited fax from Defendant on June 9, 2011. On February 11, 2014, an Amended Complaint was filed that, as relevant here, added Dr. Gress as a named plaintiff and alleged that he received unsolicited faxes from Defendant on November 6, 2009 and January 16, 2012. Both Complaints enumerate five counts, one each for violations of the Telephone Consumer Protection Act ("TCPA"), the Illinois Consumer Fraud Act ("ICFA"), and the common law torts of conversion, private nuisance, and trespass to chattels.
II. LEGAL STANDARD
A complaint must provide a short and plain statement of the claim showing the plaintiff is entitled to relief. FED. R. CIV. P. 8(a)(2). The complaint must "plead 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). The Court construes a complaint in the light most favorable to the plaintiff and accepts all well-pled facts as true. Justice v. Town of Cicero, 577 F.3d 768, 771 (7th Cir. 2009).
A. Statute of Limitations
Defendant argues that the statute of limitations has expired for the fax received by Dr. Gress on November 6, 2009. The TCPA contains a four-year statute of limitations. 28 U.S.C. § 1658. The original Complaint was filed on October 29, 2013, roughly three years and fifty-one weeks after Dr. Gress received the fax on November 6, 2009. Because Dr. Gress was a member of the class alleged in the original Complaint, the limitations period was tolled from the time when the original Complaint was filed until the date he was added as a plaintiff. Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 549-50 (1974) (explaining that "the commencement of the action satisfied the purpose of the limitation provision as to all those who might subsequently participate in the suit"). Therefore, the limitations period has not expired as to the fax sent on November 6, 2009.
B. Count I - TCPA
In Count I, Plaintiffs allege that Defendant violated TCPA by sending unsolicited faxes that did not contain an opt-out notice. Compl. ¶¶ 19, 23, 24. The TCPA makes it unlawful "to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement." 47 U.S.C. § 227(b)(1)(C). The TCPA provides exceptions (1) for those with established business relationships or (2) where the fax number was obtained through voluntary communication or a directory; however, these exceptions apply only if the fax includes an appropriate opt-out notice. Id.
Defendant moves to dismiss this Count on the ground that Plaintiffs did not allege that the faxes were unsolicited. That contention lacks merit, as Plaintiffs allege in paragraph 23 that the advertisements were unsolicited.
Defendant claims further that Plaintiff consented to receiving the faxes because otherwise Defendant could not have obtained Plaintiffs' fax numbers. Such a broad argument, if accepted, would render the TCPA meaningless, as there could be no such thing as an unsolicited fax. Additionally, even when one consents to receiving fax advertisements, the fax must include information about how to opt-out of receiving future faxes. 47 U.S.C. § 227(b)(1)(C)(iii); ...