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James L Orrington, II, D.D.S., P.C. v. Scion Dental, Inc.

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

July 6, 2017

JAMES L ORRINGTON, II, D.D.S., P.C., on behalf of himself and the class members defined herein, Plaintiff,
v.
SCION DENTAL, INC., and JOHN DOES 1-10, Defendants.

          MEMORANDUM OPINION AND ORDER

          AMY J. ST. EVE, District Court Judge.

         On 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.

         BACKGROUND

         Scion 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.)

         On July 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.)

         LEGAL STANDARD

         “A 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).

         In 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.

         ANALYSIS

         Plaintiff 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.

         I. Plaintiff Adequately Alleged That The Fax Was Unsolicited

         Scion 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”)[1] rule requiring opt-out notices on solicited faxes is unlawful).

         Contrary 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 Yaakov.”)[2]

         II. Plaintiff Failed to Allege That The Fax Was ...


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