United States District Court, E.D. Missouri, Eastern Division
RADHA GIESMANN, MD, P.C., individually and on behalf of all other similarly-situated persons, Plaintiff,
AMERICAN HOMEPATIENT, INC., and JOHN DOES 1-10, Defendants.
MEMORANDUM AND ORDER
RONNIE L. WHITE, District Judge.
This matter is before the Court on Defendant American Home Patient, Inc.'s Motion to Dismiss the Complaint, or, in the Alternative, Dismiss or Strike the Class Allegations from the Complaint (ECF No. 9). The motion is fully briefed and ready for disposition. Upon review of the motion and the related memoranda, the Court will deny Defendant's motion.
On August 4, 2014, Plaintiff Radha Geismann MD, P.C. filed a Class Action Petition in the Circuit Court of St. Louis County, Missouri. Plaintiff contends that on June 22, 2013, it received an unsolicited advertisement facsimile sent by Defendants. (Compl. ¶¶ 10-11) Plaintiff further contends that Defendants sent other fax advertisements to many other persons. Plaintiff's Complaint alleges a violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA), conversion under Missouri common law, and a violation of the Missouri Consumer Fraud and Deceptive Business Practices Act ("MPA").
Defendant American Homepatient, Inc. subsequently filed a motion to dismiss the complaint, or alternatively, to dismiss or strike the class allegations. Defendant asserts that Plaintiff's TCPA claim fails to state a claim upon which relief can be granted because the fax letter attached to the Complaint is not an "advertisement" as defined by the TCPA. Defendant also argues that Plaintiff's conversion claim fails to satisfy the minimum pleading standards to survive a motion to dismiss. Finally, Defendant contends that Plaintiff's class allegations fail as a matter of law because Plaintiff has not pled a plausible claim for class relief, nor can it satisfy the prerequisites to certify a class action. Plaintiff responds that Defendant's argument that the fax was not an advertisement is factually and legally unsupportable. Further, Plaintiff claims that it has properly stated a claim for conversion. Plaintiff also contends that Defendant's attempt to strike the class allegations at the pleading stage fails because Defendant erroneously argues that consent requires an individual determination and because Plaintiff has not had an opportunity to conduct discovery.
II. Legal Standard
A complaint must be dismissed under Federal Rule 12(b)(6) for failure to state a claim upon which relief can be granted if the complaint fails to plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007) (abrogating the "no set of facts" standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). While the Court cautioned that the holding does not require a heightened fact pleading of specifics, "a plaintiff's obligation to provide the grounds' of his entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555. In other words, "[f]actual allegations must be enough to raise a right to relief above the speculative level...." Id. This standard simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the claim. Id. at 556.
Courts must liberally construe the complaint in the light most favorable to the plaintiff and accept the factual allegations as true. See Id. at 555; see also Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008) (stating that in a motion to dismiss, courts accept as true all factual allegations in the complaint); Eckert v. Titan Tire Corp., 514 F.3d 801, 806 (8th Cir. 2008) (explaining that courts should liberally construe the complaint in the light most favorable to the plaintiff). Further a court should not dismiss the complaint simply because the court is doubtful that the plaintiff will be able to prove all of the necessary factual allegations. Twombly, 550 U.S. at 556. However, "[w]here the allegations show on the face of the complaint there is some insuperable bar to relief, dismissal under Rule 12(b)(6) is appropriate." Benton v. Merrill Lynch & Co., 524 F.3d 866, 870 (8th Cir. 2008) (citation omitted). Courts "are not bound to accept as true a legal conclusion couched as a factual allegation.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). When considering a motion to dismiss, a court can "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 679. Legal conclusions must be supported by factual allegations to survive a motion to dismiss. Id.
With regard to class certification, a proposed class must satisfy the requirements of Federal Rule of Civil Procedure 23(a), as well as one of the three alternatives in Rule 23(b), in order to be certified. Lindsay Transmission, LLC v. Office Depot, Inc., No. 4:12-CV-221 (CEJ), 2013 WL 275568, at *3 (E.D. Mo. Jan. 24, 2013) (citation omitted). "As a threshold matter, a proposed class must always meet the Rule 23(a) requirements of numerosity, typicality, commonality, and adequacy of representation." Id. However, when a plaintiff seeks certification under Rule 23(b)(3), proponents of class certification must also demonstrate: "(1) that the questions of law or fact common to the members of the proposed class predominate over questions affecting only individual class members; and (2) that a class action is superior to other available methods of resolving the controversy." Id. (citation omitted).
A. TCPA Claim
Defendant first contends that Plaintiff is unable to state a claim under the TCPA because the faxed letter was not an advertisement. The fax states: "Your Medicare Patients have 1 week to find a new provider. American HomePatient was chosen to be a contracted provider with Medicare for respiratory products and services in your area...." (Pet. Ex. A, ECF No. 3-1) The fax then asks the recipient to "Make American HomePatient the Respiratory Provider of Choice for your patients." (Id. ) Defendant contends that the fax was merely informational and was not directed to patients or consumers. Thus, Defendant asserts, the fax does not meet the requirements of the TCPA. Plaintiff, on the other hand, argues that the fax meets the definition of advertisement under the TCPA.
The TCPA prohibits any person within the United States from using "any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine." 47 U.S.C. § 227(b)(1)(C). An unsolicited advertisement is "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).
At the pleading stage, the Court finds that Plaintiff has stated a claim that is plausible on its face. Plaintiff contends that the fax advertises the commercial availability of Defendant's respiratory goods and services. While Defendant relies on Phillips Randolph Enters., LLC v. Adler-Weiner Research Chicago, Inc., in support of its position, the Court finds this case is inapposite. 526 F.Supp.2d 851 (N. D. Ill. 2007). In Phillips Randolph Enters., the court found that a fax inviting business owners to participate in a research study did not promote a commercially available service. Id. at 852-53. The court reasoned that the potential participants had to pre-qualify for the study, rendering the study not commercially available. Id. at 853; see also St. Louis Heart Ctr., Inc. v. Caremark L.L.C., No. 4:12CV2151 TCM, 2013 WL 9988795, at *3-4 (E.D. Mo. April 19, 2013) ...