Samuel Zean v. Fairview Health Services
858 F.3d 520
| 8th Cir. | 2017Background
- Plaintiff Samuel Zean bought a medical device from Fairview and later received ~25 automated calls/voicemails on his cell phone offering replacement supplies.
- Zean filed a putative class action under the TCPA, alleging the calls were made without his prior express consent. The complaint alleged he asked a Fairview employee to stop the calls.
- Fairview moved to dismiss under Rule 12(b)(6), submitting a declaration and two heavily redacted business-record exhibits it said showed Zean’s written consent to calls to his cell number. One exhibit bore Zean’s signature dated 8/29/14; the other showed his name, last four digits of his cell number, and a signature dated 8/23/13.
- The district court treated the redacted exhibits as documents embraced by the complaint, found they showed Zean’s prior express consent (including to autodialed/prerecorded messages about supplies), and dismissed the complaint for failure to state a TCPA claim.
- The Eighth Circuit affirmed: (1) a TCPA complaint must plausibly allege lack of prior express consent; (2) the redacted exhibits were embraced by the pleadings and properly considered; and (3) the exhibits established consent covering the calls’ subject matter.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether lack of prior express consent is an element of a TCPA complaint or an affirmative defense | Zean: Consent is an affirmative defense per FCC rulings; plaintiff need not plead lack of consent | Fairview: Statute’s language makes absence of prior express consent essential to liability; plaintiff must plead no consent | Court: Pleading lack of consent is required to state a plausible TCPA claim; affirmative-defense label irrelevant to 12(b)(6) review |
| Whether the court may consider Fairview’s redacted business records on a 12(b)(6) motion | Zean: Exhibits aren’t embraced by the complaint and contradict his allegation of no consent; cannot be considered without converting to summary judgment | Fairview: Documents reflect the contractual relationship alleged in the complaint and are thus embraced by the pleadings | Court: Documents are contractual materials embraced by the complaint and may be considered on the motion to dismiss |
| Whether authenticity/dispute about heavily redacted exhibits required conversion to summary judgment | Zean: He contested the exhibits and their authenticity; redactions obscure material context; court should not rely on them on 12(b)(6) | Fairview: Exhibits were submitted and not challenged as unauthenticated under Rule 901; privacy laws justified redaction | Court: Zean never timely challenged authentication or sought conversion/limited discovery; authenticity was not a genuine disputed issue warranting conversion |
| Whether the exhibits, as redacted, show the scope of consent covered these telemarketing calls | Zean: Language (“may need to contact”) is too vague and doesn’t show consent to prerecorded telemarketing voicemails | Fairview: The consent language covered contacting Zean about services/accounts and use of autodialers/prerecorded messages; calls about replacement supplies fall within that scope | Court: The calls were closely related to the purpose for which the number was provided (services/accounts/supplies); exhibits established consent covering the calls |
Key Cases Cited
- Quintero Cmty. Ass’n v. F.D.I.C., 792 F.3d 1002 (8th Cir. 2015) (standard of review for Rule 12(b)(6) dismissal)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility standard for pleading)
- Noble Sys. Corp. v. Alorica Cent., LLC, 543 F.3d 978 (6th Cir. 2008) (affirmative defenses apparent on complaint can support dismissal)
- Enervations, Inc. v. Minn. Min. & Mfg. Co., 380 F.3d 1066 (8th Cir. 2004) (documents embraced by the complaint may be considered on 12(b)(6))
- Ashanti v. City of Golden Valley, 666 F.3d 1148 (8th Cir. 2012) (definition of documents embraced by pleadings)
- BJC Health Sys. v. Columbia Cas. Co., 348 F.3d 685 (8th Cir. 2003) (documents outside the pleading require conversion to summary judgment)
- Gorog v. Best Buy Co., 760 F.3d 787 (8th Cir. 2014) (examining contract documents on dismissal)
- Dittmer Props., L.P. v. F.D.I.C., 708 F.3d 1011 (8th Cir. 2013) (contract documents can refute claims at 12(b)(6))
- Woods v. Wells Fargo Bank, 733 F.3d 349 (1st Cir. 2013) (business records and authentication at dismissal stage)
- Davis v. HSBC Bank Nev., 691 F.3d 1152 (9th Cir. 2012) (same)
- Schaffer v. Weast, 546 U.S. 49 (2005) (allocation of burdens; evidence often within defendant’s control)
- Dir., Office of Workers' Comp. Programs v. Greenwich Collieries, 512 U.S. 267 (1994) (distinguishing burden of production from burden of persuasion)