United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
M. Dow, Jr. United States District Judge.
the Court is Defendant Onsite Healthcare, Inc., S.C.'s
motion to dismiss . For the reasons set forth below,
Defendant's motion  is granted with respect to Counts
II through Count V, but denied with respect to Count I. This
case is set for further status on June 15, 2017, at 9:00 a.m.
to discuss pre-trial scheduling and the possibility of
Onsite Healthcare, Inc., SC "provides professional
medical services to home bound patients in the State of
Illinois through its staff of licensed physicians."
[29-1, at 2.] Plaintiff Able Home Health, LLC is a "home
healthcare agency" that provides "nursing and
therapy services to home bound patients" in Illinois.
Id. In July 2016, Plaintiff received a two-page fax
on its fax machine from Defendant. [1, ¶ 9.] That fax is
on Defendant's letterhead, addressed to "Home Health
Partners, " and has the subject line, "New
Physician to serve the Rockford Area." [1, at 21.] The
text of the fax's first page states:
Partners in Healthcare,
We are happy to announce the addition of Louis R. Warren, MD
to Onsite Healthcare's team of Providers. Dr. Warren will
be able to support the internal medicine needs of patients in
the areas of Rockford and Belvedere effective July 11, 2016.
Please feel review our update[d] list of Providers below:
Id. The fax then includes a chart of Defendant's
providers-identifying their names and specialty area-and
lists a phone and fax number for a "New Referral
Hotline." Id. The fax further states,
"Please feel free to call or contact me for more
information, " and is signed by Defendant's Vice
President of Operations. Id. The second page of the
fax is essentially a patient form. Id. at 22. The
top box is titled, "Requested Services (please check all
that apply)" and lists four specialties (internal
medicine, preventative medicine, echocardiograms, and
ultrasounds and Doppler studies). Id. The form then
provides blank sections to be filled out with information
about the "referring company" and
"patient" (including the patient's phone
number, date of birth, insurance information, and medical
information, such as main diagnoses). Id.
contends that this fax was "unsolicited, " and
"deprived [Plaintiff] of its paper and ink or toner and
use of its fax machine." [1, ¶ 2.] Based on these
allegations, Plaintiff filed the instant complaint against
Defendant, asserting a federal claim under Telephone Consumer
Protection Act, 47 U.S.C. § 227, et seq.
("TCPA") and state law claims for violation of the
Illinois Consumer Fraud and Deceptive Business Practices Act
("ICFA"), conversion, trespass to chattels, and
private nuisance. The complaint also includes "class
allegations" for a putative class action related to each
claim. Defendant moves to dismiss the complaint in its
survive a Rule 12(b)(6) motion to dismiss for failure to
state a claim upon which relief can be granted, the complaint
first must comply with Rule 8(a) by providing "a short
and plain statement of the claim showing that the pleader is
entitled to relief, " Fed.R.Civ.P. 8(a)(2), such that
the defendant is given "fair notice of what the * * *
claim is and the grounds upon which it rests." Bell
Atl Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957))
(alteration in original). Second, the factual allegations in
the complaint must be sufficient to raise the possibility of
relief above the "speculative level." E.E.O.C.
v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th
Cir. 2007) (quoting Twombly, 550 U.S. at 555).
"A pleading that offers 'labels and conclusions'
or a 'formulaic recitation of the elements of a cause of
action will not do.'" Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
at 555). Dismissal for failure to state a claim under Rule
12(b)(6) is proper "when the allegations in a complaint,
however true, could not raise a claim of entitlement to
relief." Twombly, 550 U.S. at 558. In reviewing
a motion to dismiss pursuant to Rule 12(b)(6), the Court
accepts as true all of Plaintiff's well-pleaded factual
allegations and draws all reasonable inferences in
Plaintiff's favor. Killingsworth v. HSBC Bank Nevada,
N.A., 507 F.3d 614, 618 (7th Cir. 2007). The
"documents attached to a motion to dismiss are
considered part of the pleadings if they are referred to in
the plaintiff's complaint and are central to his
claim" and "may be considered by the district court
in ruling on the motion to dismiss * * * without converting
[it] to a motion for summary judgment." Wright v.
Associated Ins. Cos. Inc., 29 F.3d 1244, 1248 (7th Cir.
TCPA prohibits the use of "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 statute also provides several
exemptions from this prohibition-two of which are relevant
here. First, the TCPA is not violated if "the
unsolicited advertisement is from a sender with an
established business relationship with the recipient."
Id. § 227(b)(1)(C)(i). Second, the TCPA is not
violated if "the sender obtained the number of the
telephone facsimile machine through * * * the voluntary
communication of such number, within ...