United States District Court, D. Maryland, Southern Division
ERIC B. FROMER CHIROPRACTIC, INC., Plaintiff,
INOVALON HOLDINGS, INC., et al., Defendants. v.
J. HAZEL United States District Judge.
Eric B. Fromer Chiropractic, Inc., (“Fromer” or
“Plaintiff”) on behalf of itself and others
similarly situated, brings this putative class action against
Defendants Inovalon Holdings, Inc., Inovalon, Inc., and
Inovalon SME, LLC (collectively, “Inovalon” or
“Defendants”) alleging that Defendants sent
Plaintiff an unsolicited advertisement via facsimile
transmission in violation of the Telephone Consumer
Protection Act of 1991 (“TCPA”), as amended by
the Junk Fax Prevention Act of 2005, 47 U.S.C. § 227.
ECF No. 1. Presently pending before the Court is
Plaintiff's “Placeholder” Motion to Certify
Class, ECF No. 3, to which Defendants have not responded, and
Defendants Motion to Dismiss, ECF No. 22. No. hearing is
necessary. Loc. R. 105.6 (D. Md. 2016). For the following
reasons, Defendants' Motion to Dismiss is granted, in
part, and denied, in part, and the case is stayed pending
resolution of Defendants' Petition for Expedited
Declaratory Ruling presently pending before the Federal
Communications Commission (“FCC”). ECF No. 22-4.
TCPA makes it unlawful to send an “unsolicited
advertisement” by fax unless 1) the unsolicited
advertisement is from a sender with an established business
relationship with the recipient, 2) the sender obtained the
recipient's fax number through either voluntary
communication or public distribution of the recipient's
number, and 3) the unsolicited advertisement contains an
opt-out notice in accordance with paragraph (2)(D) of that
section. See 47 U.S.C. § 227(b)(1)(C). The TCPA
defines “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.” §
about November 14, 2017, Defendants sent an unsolicited
facsimile transmission (“the Fax”) to Plaintiff.
ECF No. 1 ¶ 12. The Fax offers medical providers, like
Plaintiff, free access to Inovalon's electronic record
retrieval system. ECF No. 1-1 (copy of the Fax). Plaintiff
alleges that it did not give prior express invitation or
permission to Defendants to send the Fax and that Plaintiff
does not have an established business relationship with
Defendants to otherwise authorize the Fax. Id.
¶ 14. In addition to being unsolicited, the Fax does not
display an opt-out notice as required by the TCPA.
Id. ¶ 15. Plaintiff alleges that it lost paper
and toner consumed in printing the Fax. Id. ¶
35. Plaintiff also wasted time in receiving, reviewing, and
routing the Fax, and receipt of the Fax interrupted
Plaintiff's interest in being left alone. Id.
Plaintiff further alleges that Defendants profit and benefit
from the sale of the products, goods and services advertised
in the Fax. Id. ¶ 13. According to Plaintiff,
Defendants have faxed the same, or similar, unsolicited fax
in violation of the TCPA to at least 40 other recipients
without first obtaining the recipient's express
invitation or permission. Id. ¶ 15.
filed its putative class action on December 26, 2017. On
February 19, 2018, Defendants filed a petition with the FCC
seeking an expedited declaratory ruling that because Inovalon
does not sell the products or services mentioned in the Fax
to recipients of the Fax, the Fax was not an
“unauthorized advertisement” otherwise prohibited
by the TCPA. See In re Inovalon, Inc.'s Pet. for
Expedited Declaratory Ruling, CG Docket No. 02-278 (FCC
Feb. 19, 2018) (ECF No. 22-4). In its Petition, Defendants
ask the FCC to declare:
1. Faxes sent by a health insurance plan's designee to a
patient's medical provider, pursuant to an established
business relationship between the health plan and provider,
requesting patient medical records are not advertisements
under the TCPA; and
2. Faxes that offer the free collection and/or digitization
of patient medical records, and which do not offer any
commercially available product or service to the recipients
are not advertisements under the TCPA.
ECF No. 22-4.
STANDARD OF REVIEW
Motion to Dismiss Pursuant to Rule 12(b)(1)
motion to dismiss based on lack of subject-matter
jurisdiction, pursuant to Federal Rule of Civil Procedure
12(b)(1), raises the question of whether the court has the
competence or authority to hear and decide a particular case.
See Davis Thompson, 367 F.Supp.2d 792, 799 (D. Md.
2005). The court may properly grant a motion to dismiss for
lack of subject-matter jurisdiction “where a claim
fails to allege facts upon which the court may base
jurisdiction.” Id. (citing Crosten
Kamauf, 932 F.Supp. 676, 679 (D. Md. 1996)). A federal
court does not have subject-matter jurisdiction where Article
III standing is not satisfied, Beck McDonald, 848
F.3d 262, 269 (4th Cir. 2017), cert. denied sub nom. Beck
Shulkin, 137 S.Ct. 2307 (2017), and must determine if it
has subject matter jurisdiction before ruling on the merits
of the case. Sinochem Int'l Co. Ltd. Malaysia
Int'l Shipping Corp., 549 U.S. 422, 430-31 (2007).
Motion to Dismiss Pursuant to Rule 12(b)(6)
to Rule 12(b)(6), a court may dismiss a complaint for failure
to state a claim upon which relief can be granted. When
deciding a motion to dismiss, a court “must accept as
true all of the factual allegations contained in the
complaint, ” and “draw all reasonable inferences
[from those facts] in favor of the plaintiff.” E.I.
du Pont de Nemours & Co. Kolon Indus., Inc., 637
F.3d 435, 440 (4th Cir. 2011) (citations and internal
quotation marks omitted). To survive a motion to dismiss
invoking Rule 12(b)(6), “a complaint must contain
sufficient factual matter, accepted as true, ‘to state
a claim to relief that is plausible on its face.'”
Ashcroft Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atl. Corp. Twombly, 550 U.S. 544. 570 (2007)).
move to dismiss Plaintiff's complaint for lack of
subject-matter jurisdiction or for failure to state a claim
upon which relief can be granted. Alternatively, Defendants
ask the Court to stay the case ...