Zean v. Fairview Health Services
149 F. Supp. 3d 1129
D. Minnesota2016Background
- Plaintiff Samuel Zean purchased sleep therapy equipment from Fairview in Sept. 2014; replacement supplies must be ordered periodically.
- Zean alleges Fairview placed 25+ calls to his cellular phone between Sept. 2014 and Aug. 2015 using an automatic dialing system and prerecorded messages soliciting supply orders.
- The automated messages included prompts to order supplies and an option to bill insurance; no automated opt-out option existed. Zean contacted Fairview and an employee allegedly agreed to stop calls.
- Fairview produced a heavily redacted consent form signed by Zean stating he authorized contact by phone (including cell) and consented to autodialers and prerecorded messages.
- Zean filed a putative class action under the TCPA claiming unauthorized automated telemarketing calls; Fairview moved to dismiss, arguing Zean gave prior express written consent and that such consent defeats a prima facie TCPA claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether lack of prior express consent is an element of a TCPA prima facie claim | Consent is an affirmative defense; burden on defendant to plead/prove | Lack of prior express consent is an element that plaintiff must allege and prove | Court: Lack of prior express consent is an element of the prima facie TCPA claim |
| Whether court may consider Fairview's consent form and questionnaire on Rule 12(b)(6) motion | Documents are extrinsic and not embraced by the complaint, so cannot be considered | The complaint’s allegations (purchase and calls about supplies) let the court infer Zean provided his cell number; documents are embraced by the pleadings | Court: Exhibits are embraced by the pleadings and may be considered |
| Whether Zean’s written consent encompassed automated telemarketing calls at issue | The consent did not authorize telemarketing/advertising calls; scope of consent is context-dependent | Zean signed a form authorizing contact about services/accounts and provided his cell number; calls were related to supplies for his equipment | Court: Calls were within the scope of the consent; FCC guidance supports that providing a number for healthcare-related services authorizes related automated calls |
| Whether Zean stated a viable TCPA claim after considering consent | Consent not properly adjudicated on dismissal; factual disputes preclude dismissal | Written consent defeats the TCPA claim as pleaded | Court: Because consent covers the calls, plaintiff failed to state a prima facie TCPA claim; dismissal with prejudice granted |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility standard for Rule 12(b)(6) pleading)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (complaint must state a plausible claim)
- Gomez v. Wells Fargo Bank, N.A., 676 F.3d 655 (8th Cir. 2012) (factual allegations taken as true on motion to dismiss)
- McAdams v. McCord, 584 F.3d 1111 (8th Cir. 2009) (courts need not credit legal conclusions)
- Porous Media Corp. v. Pall Corp., 186 F.3d 1077 (8th Cir. 1999) (rule on considering materials outside the pleadings)
- Smithrud v. City of St. Paul, 746 F.3d 391 (8th Cir. 2014) (documents necessarily embraced by the pleadings may be considered on a motion to dismiss)