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Schwanke v. JB Medical Management Solutions, Inc.

United States District Court, M.D. Florida, Ocala Division

January 9, 2017

LAWRENCE E. SCHWANKE, D.C., d/b/a BACK TO BASICS FAMILY CHIROPRACTIC, a Florida resident, individually, and as the representative of a class of similarly-situated persons, Plaintiff,
v.
JB MEDICAL MANAGEMENT SOLUTIONS, INC., MCKESSON CORPORATION, MCKESSON BUSINESS PERFORMANCE SERVICES, MCKESSON TECHNOLOGY SOLUTIONS, MCKESSON PROVIDER TECHNOLOGIES, MCKESSON TECHNOLOGIES, INC. and JOHN DOES 1-12, Defendants.

          ORDER

          JAMES S. MOODY, JR. UNITED STATES DISTRICT JUDGE

         The McKesson Defendants[1] raise two arguments: The first is that Plaintiff's action for violation of the Telephone Consumer Protection Act (“TCPA”) and conversion should be transferred to the District Court for the Northern District of California because it substantially overlaps with a case that was filed there first, or because transferring would further the interests of convenience and justice. The second argument is that Plaintiff's action should be dismissed for failing to state a cause of action. Because Plaintiff's case does not substantially overlap with the Northern District of California case and because transfer would not further convenience or justice, the case should not be transferred. The Court also concludes that Plaintiff's complaint fails to state a cause of action against all but one of the McKesson Defendants and must be dismissed as to the other defendants.

         FACTUAL BACKGROUND

         McKesson Corporation, including its various divisions and subsidiaries, created a medical software product called Medisoft. Medisoft is marketed to healthcare providers nationwide. On October 4, 2012, Plaintiff received an unsolicited fax from Defendant JB Medical Management Solutions, Inc. (“JB Medical”) advertising Medisoft and bearing McKesson's name and motto. The fax, though, does not list any particular McKesson entity[2] or any other information identifying what McKesson entity was involved.

         Plaintiff claims the unsolicited fax violated the TCPA and unlawfully converted his property. On September 29, 2016, Plaintiff filed a class action against JB Medical, the McKesson Defendants, and 12 John Does. The proposed class is:

Every person sent one or more facsimiles from JB Medical at any time after September 29, 2012, about “Medisoft” and which did not state that the fax recipient could request that the sender not send any future fax and that the failure to comply with such a request within 30 days would be unlawful.

(Doc. 1, ¶ 36). The Complaint does not make specific allegations about any of the McKesson Defendants; instead it lumps all McKesson Defendants together and accuses them jointly of sending the fax or having it sent on their behalf.

         The McKesson Defendants now move to transfer this case to the Northern District of California or, alternatively, dismiss the Complaint. In support of transfer, the McKesson Defendants explained that there was a 2013 lawsuit filed in the Northern District of California accusing McKesson Corporation and McKesson Technologies, Inc. (“MTI”) of violating the TCPA by sending unsolicited faxes advertising Medisoft and other McKesson Corporation products. The McKesson Defendants argue that Plaintiff here, as well as his proposed class, is either subsumed by the class in the previously filed case or is substantially similar enough to merit transfer under the first-to-file rule or pursuant to 28 U.S.C. section 1404(a).

         As the parties' filings show, the proposed class in the Northern District of California case was:

All persons or entities who received faxes from “McKesson” from September 2, 2009, to May 11, 2010, offering “Medisoft, ” “Lytec, ” or “Revenue Management Advanced” software or “BillFlash Patient Statement Service, ” where the faxes do not inform the recipient of the right to “opt out” of future faxes.

(Doc. 32-2). The Honorable Judge Haywood Gilliam, Jr. denied class certification on August 22, 2016 (Docs. 25-4 and 32-1), a decision which has been appealed to the Ninth Circuit Court of Appeals.

         DISCUSSION

         A. Motion to Transfer

         The McKesson Defendants provide two bases for the Court to transfer this case. First, the McKesson Defendants argue that the application of the first-filed or first-to-file rule compels transfer given the substantial overlap between this case and the Northern District of California case. Second, the McKesson Defendants argue that transfer under section 1404(a) is appropriate because transferring would further the interests of convenience and justice. As explained below, the Court concludes transfer is inappropriate because there is no substantial overlap between the cases and because transferring would not further the interests of convenience or justice.

         1. There is no substantial overlap warranting application of the first-filed rule.

         “Where two actions involving overlapping issues and parties are pending in two federal courts, there is a strong presumption across the federal circuits that favors the forum of the first-filed suit under the first-filed rule.” Manuel v. Convergys Corp., 430 F.3d 1132, 1135 (11th Cir. 2005). “The first-filed rule not only determines which court may decide the merits of substantially similar cases, but also generally establishes which court may decide whether the second filed suit must be dismissed, stayed, or transferred and consolidated.” Collegiate Licensing Co. v. Am. Cas. Co. of Reading, Pa., 713 F.3d 71, 78 (11th Cir. 2013). If a party shows the two cases substantially overlap, then the party objecting to jurisdiction in the first-filed ...


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