232 F. Supp. 3d 1239
S.D. Fla.2017Background
- Plaintiffs Comprehensive Healthcare Systems of the Palm Beaches, Inc. and Dr. Robert W. Mauthe allege M3 USA sent unsolicited faxed invitations to participate in paid online medical surveys to Plaintiffs and a putative class.
- Plaintiffs claim they did not consent to receive the faxes and that the faxes lacked a clear, conspicuous opt-out notice.
- Plaintiffs assert two counts: (1) violation of the TCPA’s ban on unsolicited fax advertisements, and (2) conversion based on Defendant’s use of plaintiffs’ paper, toner, and time.
- Defendant moved to dismiss under Rule 12(b)(6) arguing the faxes are noncommercial survey invitations, not “unsolicited advertisements” under the TCPA, and thus the TCPA claim (and by extension the conversion claim) should be dismissed.
- Plaintiffs allege the faxes direct recipients to a website where M3’s terms, privacy policy, and functionality show the surveys feed targeted advertising and promotional uses — supporting that the faxes are a pretext for advertising.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the faxes are “unsolicited advertisements” under the TCPA | The faxes lead to a site and program that promote commercial services and targeted advertising, so they are advertisements or a pretext for advertising | The faxes are purely invitations to participate in anonymous medical surveys and do not advertise goods or services | Denied dismissal —whether faxes are advertisements is a factual question unsuitable for resolution on a Rule 12(b)(6) motion |
| Whether the FCC’s guidance treats survey-pretext faxes as subject to the TCPA | Surveys that serve as a pretext to advertise fall within the TCPA; Plaintiff relies on website content showing promotional targeting | Defendant says website references and post-click materials cannot convert benign faxes into advertisements as a matter of law | Court credits FCC guidance and denies dismissal, finding the complaint plausibly alleges the faxes could be a pretext for advertising |
| Whether supplemental jurisdiction should be declined over the conversion claim if TCPA claim fails | Conversion claim depends on the underlying TCPA-related allegations and is pled independently | If TCPA fails, conversion should be dismissed for lack of predicate federal claim | Court did not reach decline because TCPA claim survives; conversion claim also survives dismissal motion |
| Whether receipt of fax can support conversion under Florida law | Plaintiffs allege deprivation of paper/toner/time from unsolicited fax; conversion recognized even for low-value items | Defendant argued receipt of faxes is not sufficiently serious to constitute conversion | Denied dismissal — Eleventh Circuit precedent allows conversion claims based on receipt of single-page fax; no monetary-value threshold required |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (pleading must state a plausible claim)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (legal conclusions not entitled to pleading-stage presumption)
- Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283 (11th Cir. 2010) (courts may infer obvious alternative lawful explanations at pleading stage)
- Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration Alliance, 304 F.3d 1076 (11th Cir. 2002) (pleading-stage inference rule)
- Neurocare Inst. of Cent. Fla., P.A. v. Healthtap, Inc., 8 F. Supp. 3d 1362 (M.D. Fla.) (discussing when faxes may support TCPA and conversion claims)
- Palm Beach Golf Ctr.-Boca, Inc. v. John G. Sards, D.D.S., P.A., 781 F.3d 1245 (11th Cir. 2015) (conversion may lie from receipt of a single one-page fax)