United States District Court, N.D. Illinois, Eastern Division
JAMES L ORRINGTON, II, D.D.S., P.C., on behalf of himself and the class members defined herein, Plaintiff,
SCION DENTAL, INC., and JOHN DOES 1-10, Defendants.
MEMORANDUM OPINION AND ORDER
ST. EVE, District Court Judge.
February 2, 2017, Plaintiff James Orrington
(“Orrington”) brought the present Complaint
against Scion Dental, Inc. (“Scion”) and John
Does 1-10, collectively “Defendants, ” alleging
violations of the Telephone Consumer Protection Act, 47
U.S.C. § 227 (“TCPA”), the Illinois Consumer
Fraud Act 815 ILCS 505/2 (“ICFA”), and Illinois
common law. Before the Court is Scion's motion to dismiss
brought pursuant to Federal Rule of Civil Procedure 12(b)(6).
For the following reasons, the Court grants Scion's
motion without prejudice.
is a Delaware corporation that maintains its principal office
in Menomonee Falls, Wisconsin. (R. 1, Compl. ¶ 4.)
Scion's registered agent and office is Registered Agent
Solutions, Inc., of Madison, Wisconsin. (Id.) John
Does 1-10 are natural or artificial persons that were
involved in the sending of the facsimile (“fax”)
advertisements described below. (Id. ¶ 5.)
Plaintiff is a dental office located in the Northern District
of Illinois, where it maintains telephone fax equipment.
(Id. ¶ 3.)
7, 2016, Plaintiff received an unsolicited fax message on its
fax machine inviting Plaintiff to attend an online webinar.
(Id. ¶ 9; Ex. A, Fax Message.) Plaintiff
alleges that Scion is responsible for sending or causing the
sending of the fax. (Compl. ¶ 11.) According to
Plaintiff, Scion's products and services were advertised
in the fax and as such, Scion derived the economic benefit
from the sending of the fax. (Id. ¶ 12.)
Plaintiff claims that Scion was seeking to recruit dentists
to enter into business relationships, and Scion either
negligently or willfully violated Plaintiff's rights by
sending the fax message. (Id. ¶¶ 12-13.)
Plaintiff had no prior relationship with Scion and had not
authorized the sending of fax advertisements to Plaintiff.
(Id. ¶ 15.) Plaintiff alleges on information
and belief that Scion sent the generic fax as part of a mass
broadcasting of faxes to at least 40 other persons in
Illinois. (Id. ¶¶ 16, 19.) The fax does
not contain an “opt-out” notice that complies
with the TCPA. (Id. ¶ 17.)
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) challenges the viability of a complaint by arguing
that it fails to state a claim upon which relief may be
granted.” Camasta v. Jos. A. Bank Clothiers,
Inc., 761 F.3d 732, 736 (7th Cir. 2014). Under Rule
8(a)(2), a complaint must include “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). The short and plain
statement under Rule 8(a)(2) must “give the defendant
fair notice of what the claim is and the grounds upon which
it rests.” Bell Atlantic v. Twombly, 550 U.S.
544, 555 (2007) (citation omitted). Under the federal notice
pleading standards, a plaintiff's “factual
allegations must be enough to raise a right to relief above
the speculative level.” Twombly, 550 U.S. at
555. Put differently, 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
Twombly, 550 U.S. at 570).
determining the sufficiency of a complaint under the
plausibility standard, courts must “accept all
well-pleaded facts as true and draw reasonable inferences in
the plaintiffs' favor.” Roberts v. City of
Chicago, 817 F.3d 561, 564 (7th Cir. 2016). When ruling
on motions to dismiss, courts may also consider documents
attached to the pleadings without converting the motion to
dismiss into a motion summary judgment, as long as the
documents are referred to in the complaint and central to the
plaintiff's claims. See Adams v. City of
Indianapolis, 742 F.3d 720, 729 (7th Cir. 2014);
Fed.R.Civ.P. 10(c). Because Plaintiff attaches a photocopy of
the fax message to the Complaint and this document is central
to its claim, the Court may consider this attachment in
ruling on the present motion.
alleges that Scion's unsolicited fax violated the TCPA,
which prohibits any person from sending unsolicited fax
advertisements, unless one of several exceptions applies.
Fulton Dental, LLC v. Bisco, Inc., No. 16-3574, 2017
WL 2641124, at *1 (7th Cir. June 20, 2017). A sender is
excluded from the prohibition against unsolicited fax
advertisements if the sender has an established business
relationship with the recipient or if the sender obtained the
fax number from the recipient or from a public directory.
Id.; see also 47 U.S.C. §
227(b)(1)(C). Even these permitted faxes must include an
opt-out notice in clear and conspicuous language.
Fulton, 2017 WL 2641124, at *1; Ira Holtzman,
C.P.A. v. Turza, 728 F.3d 682, 683 (7th Cir. 2013)
(“the fax must tell the recipient how to stop receiving
future messages”) (citing 47 U.S.C. §
227(b)(1)(C)(iii), (2)(D)). Here, Scion argues that the Court
should dismiss Plaintiff's TCPA claims because Plaintiff
has failed to adequately allege that (1) the fax was
unsolicited and (2) the fax was an advertisement. The Court
addresses each argument in turn.
Plaintiff Adequately Alleged That The Fax Was
first argues that the Court should dismiss Plaintiff's
TCPA claims because Plaintiff fails to adequately allege that
the fax message was “unsolicited.” Scion notes
that United Healthcare, another company, is also listed on
the fax and argues that Plaintiff's failure to mention
United Healthcare in its Complaint indicates that it is
possible that Plaintiff gave United Healthcare consent to
send it faxes. Scion concedes that the fax did not contain an
opt-out notice, but argues that the TCPA no longer requires
opt-out notices on faxes that have been sent with prior
consent due to a recent decision from the D.C. Court of
Appeals. Bais Yaakov of Spring Valley v. Fed.
Commc'ns Comm'n, 852 F.3d 1078, 1083 (D.C. Cir.
2017) (holding that the Federal Communications
Commission's (“FCC”) rule requiring opt-out
notices on solicited faxes is unlawful).
to Scion's position, its concession that the fax did not
include an opt-out notice is dispositive on this issue
because under binding Seventh Circuit precedent, opt-out
notices are still required under the TCPA, even for solicited
faxes. The Seventh Circuit has explicitly held, relying on
the TCPA itself and not the FCC rules, that “[e]ven
when the Act permits fax ads-as it does to persons who have
consented to receive them, or to those who have established
business relations with the sender-the fax must tell the
recipient how to stop receiving future messages.”
Turza, 728 F.3d at 683 (citing 47 U.S.C. §
227(b)(1)(C)(iii), (2)(D)). Turza is binding
precedent on this Court, and accordingly, Plaintiff has
adequately alleged that the fax was unsolicited. See
Physicians Healthsource, Inc. v. Allscripts Health Sols.,
Inc., No. 12 C 3233, 2017 WL 2391751, at *2-3 (N.D. Ill.
June 2, 2017) (“Given the vertical hierarchy of the
federal courts, we are bound to follow Turza and are
not at liberty to opt for Bais
Plaintiff Failed to Allege That The Fax Was ...