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Eric B. Fromer Chiropractic, Inc. Inovalon Holdings, Inc.

United States District Court, D. Maryland, Southern Division

September 4, 2018

ERIC B. FROMER CHIROPRACTIC, INC., Plaintiff,
v.
INOVALON HOLDINGS, INC., et al., Defendants. v.

          MEMORANDUM OPINION

          GEORGE J. HAZEL United States District Judge.

         Plaintiff 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.

         I. BACKGROUND [1]

         The 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.” § 227(a)(5).

         On or 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.

         Plaintiff 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.[2]

         II. STANDARD OF REVIEW

         A. Motion to Dismiss Pursuant to Rule 12(b)(1)

         A 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).

         B. Motion to Dismiss Pursuant to Rule 12(b)(6)

         Pursuant 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)).

         III. DISCUSSION

         Defendants 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 ...


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