Case: 1:16-cv-08219 Document #: 36 Filed: 05/17/17 Page 1 of 17 PageID #:<pageID> IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION ABLE HOME HEALTH, LLC, ) ) Plaintiffs, ) ) Case No. 16-cv-8219 v. ) ) Judge Robert M. Dow, Jr. ONSITE HEALTHCARE, INC., S.C., et al., ) ) Defendants. ) ) ) MEMORANDUM OPINION AND ORDER 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., S.C. “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 Case: 1:16-cv-08219 Document #: 36 Filed: 05/17/17 Page 2 of 17 PageID #:<pageID> 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 2 Case: 1:16-cv-08219 Document #: 36 Filed: 05/17/17 Page 3 of 17 PageID #:<pageID> 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. § 227(b)(1)(C)(i). Second, the TCPA is not violated if “the sender obtained the number of the telephone facsimile 3 Case: 1:16-cv-08219 Document #: 36 Filed: 05/17/17 Page 4 of 17 PageID #:<pageID> machine through * * * the voluntary communication of such number, within the context of such established business relationship, from the recipient of the unsolicited advertisement.” Id. § 227(b)(1)(C)(ii)(I). In moving to dismiss Plaintiff’s TCPA claim (Count I), Defendant advances two main arguments: (1) Defendant’s fax was not an “advertisement”; and (2) the complaint fails to establish that the fax was “unsolicited.” [29-1, at 2–6.] The TCPA defines an “unsolicited advertisement” as “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s prior express invitation or permission, in writing or otherwise.” 47 U.S.C. § 227(a)(5). A fax that touts either the “availability” or “quality” of a service can qualify. See Ira Holtzman, C.P.A. v. Turza, 728 F.3d 682, 685 (7th Cir. 2013). “The TCPA does not require that an unwanted and uninvited fax make an overt sales pitch to its recipient in order for a cause of action to exist.” Green v. Time Ins. Co., 629 F. Supp. 2d 834, 837 (N.D. Ill. 2009). An “open invitation[] to do business” is all that is needed. Brodsky v. HumanaDental Ins. Co., 2014 WL 2780089, at *7 (N.D. Ill. June 12, 2014); accord Alpha Tech Pet, Inc. v. Lagasse, LLC, 205 F. Supp. 3d 970, 973 (N.D. Ill. 2016). Furthermore, a fax can constitute an advertisement even if the vast majority of its content has nothing to do with promoting a service’s availability or quality. See Turza, 728 F.3d at 687 (rejecting the argument that “25% of [Defendant’s] fax alerting potential clients to the availability of his services is ‘merely incidental’ to the 75% that delivers business advice” because the TCPA statutory text “does not ask whether a notice of availability is incidental to something else”). Here, the complaint states a plausible claim that Defendant’s fax qualifies as an advertisement. The fax touts the “addition” of a “new” physician who will be “able to support 4 Case: 1:16-cv-08219 Document #: 36 Filed: 05/17/17 Page 5 of 17 PageID #:<pageID> the internal medicine needs of patients in the area,” includes a “referral hotline,” and a form for patients to fill out identifying who referred them and what “services” they want. [1, at 21–22.] Arguably, the fax promotes the availability of the services of Defendant’s physicians and invites new business through a referral hotline and a referral patient form. See Alpha Tech, 205 F. Supp. 3d at 973 (“[A]lthough the faxes state that their purpose was to inform the recipients regarding the functionality of Defendants’ email system, the purpose of providing that information was to enable the ‘customers’ who received the faxes to purchase goods from Defendants.”). The fax expressly invites recipients to follow-up about these services with contact information. See Physicians Healthsource, Inc. v. Stryker Sales Corp., 65 F. Supp. 3d 482, 490–91 (W.D. Mich. 2014) (distinguishing a fax where “the letterhead of the attorney invited to follow up with contact information provided” (which was found to be an advertisement) from the case where “no contract information is provided on the fax” (which was not)). Indeed, the majority of the fax’s first page consists of the physicians’ names, their specialties, Defendant’s logo, and Defendant’s contact information. Cf. Turza, 728 F.3d at 686 (holding that fax that “devotes about 75% of the space to mundane advice and the remainder to [Defendant’s] name, address, logo, and specialties” was an advertisement).