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Able Home Health, LLC v. Onsite Healthcare, Inc.

United States District Court, N.D. Illinois, Eastern Division

May 17, 2017

ABLE HOME HEALTH, LLC, Plaintiffs,
v.
ONSITE HEALTHCARE, INC., S.C., et ah, Defendants.

          MEMORANDUM OPINION AND ORDER

          Robert M. Dow, Jr. United States District Judge.

         Before the Court is Defendant Onsite Healthcare, Inc., S.C.'s motion to dismiss [29]. For the reasons set forth below, Defendant's motion [29] 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 settlement.

         I. Background

         Defendant 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:

         Dear 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.

         Plaintiff 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 entirety [29].

         II. Legal Standard

         To 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. 1994).

         III. Analysis

         A. TCPA

         The 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. ยง 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 ...


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