United States District Court, S.D. Florida
COMPREHENSIVE HEALTH CARE SYSTEMS OF THE PALM BEACHES, INC., and DR. ROBERT W. MAUTHE, M.D., P.C., Plaintiffs,
M3 USA CORPORATION, and MDLINX, INC., Defendants.
ORDER ON DEFENDANT'S MOTION TO DISMISS AND MOTION
BLOOM UNITED STATES DISTRICT JUDGE
CAUSE is before the Court upon Defendant M3 USA
Corporation's (“Defendant”) Motion to Dismiss
Second Amended Class Action Complaint, ECF No. 
(“Motion to Dismiss”). Defendant also filed a
Motion to Stay Discovery, ECF No.  (“Motion to
Stay”), pending the Court's resolution of the
Motion to Dismiss. The Court has reviewed the Motions,
Plaintiffs' Response, ECF No. 
(“Response”), Defendant's Reply, ECF No. 
(“Reply”), the record in this case, the
applicable law, and is otherwise fully advised in the
premises. For the reasons set forth below, the Motion to
Dismiss is denied. Therefore, the Motion to Stay is denied as
Comprehensive Healthcare Systems of the Palm Beaches, Inc.
(“Comprehensive”) and Dr. Robert W. Mauthe
(“Mauthe”) (together, “Plaintiffs”)
filed their Second Amended Class Action Complaint, ECF No.
 (“Complaint”), asserting claims for
violation of the Telephone Consumer Protection Act, 47 U.S.C.
§ 227 (“TCPA”) and conversion against
Defendant, stemming from the transmission of faxes to
Plaintiffs and a class of similarly- situated individuals.
See generally Complaint. Plaintiffs allege that
Defendant is a Delaware corporation, of which MDLinx is a
division. Id. ¶¶ 14-15.
Defendant's clients are companies in the pharmaceutical
industry looking for feedback or ideas from health
professionals on how to improve the industry. Id.
¶ 9. As a result, Defendant sends advertisements by fax
to Plaintiffs and others in which Defendant offers
compensation for participation in online surveys and
advertises the commercial availability of Defendant's
online paid survey program, through which Defendant gathers
market research and opinions from health professionals for
its clients. Id. ¶¶ 20-24. Plaintiffs
further allege that they did not invite or consent to being
sent advertisements from Defendant on their fax machines.
Id. ¶ 41. Therefore, Plaintiffs contend that
Defendant violated the TCPA by sending unsolicited
advertisements without prior express invitation or permission
and without a clear and conspicuously displayed opt-out
notice. Id. Count I. Plaintiffs also assert a claim
for conversion based upon Defendant's use of their faxes.
Id. Count II. Plaintiffs attach to the Complaint a
number of exhibits exemplifying the type and content of the
faxes received by Plaintiffs, ECF Nos. [44-1]-[44-13], and
content from Defendant's website, ECF No.
[44-14]-[44-16]. Defendant seeks to dismiss the Complaint
pursuant to Rule 12(b)(6) of the Rules of Federal Procedure
for failure to state a claim.
pleading in a civil action must contain “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). Although a
complaint “does not need detailed factual allegations,
” it must provide “more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007); see Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (explaining that Rule
8(a)(2)'s pleading standard “demands more than an
accusation”). Nor can a complaint rest on
“‘naked assertion[s]' devoid of
‘further factual enhancement.'”
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 557 (alteration in original)). “To survive
a motion to dismiss a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Id. (quoting Twombly, 550 U.S. at 570).
reviewing a motion under Rule 12(b)(6), a court, as a general
rule, must accept the plaintiff's allegations as true and
evaluate all plausible inferences derived from those facts in
favor of the plaintiff. See Miccosukee Tribe of Indians
of Fla. v. S. Everglades Restoration Alliance, 304 F.3d
1076, 1084 (11th Cir. 2002); AXA Equitable Life Ins. Co.
v. Infinity Fin. Grp., LLC, 608 F.Supp.2d 1349, 1353
(S.D. Fla. 2009). However, this tenet does not apply to legal
conclusions, and courts “are not bound to accept as
true a legal conclusion couched as a factual
allegation.” Twombly, 550 U.S. at 555; see
Iqbal, 556 U.S. at 678; Thaeter v. Palm Beach Cty.
Sheriff's Office, 449 F.3d 1342, 1352 (11th Cir.
2006). Moreover, “courts may infer from the factual
allegations in the complaint ‘obvious alternative
explanations, ' which suggest lawful conduct rather than
the unlawful conduct the plaintiff would ask the court to
infer.” Am. Dental Ass'n v. Cigna Corp.,
605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal,
556 U.S. at 682). A court considering a Rule 12(b) motion is
generally limited to the facts contained in the complaint and
attached exhibits, including documents referred to in the
complaint that are central to the claim. See Wilchombe v.
TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009);
Maxcess, Inc. v. Lucent Techs., Inc., 433 F.3d 1337,
1340 (11th Cir. 2005) (“[A] document outside the four
corners of the complaint may still be considered if it is
central to the plaintiff's claims and is undisputed in
terms of authenticity.”) (citing Horsley v.
Feldt, 304 F.3d 1125, 1135 (11th Cir. 2002)). Through
this lens, the Court evaluates the instant Motion to Dismiss.
sole basis for dismissal raised by Defendant is that the
faxes sent to Plaintiffs are not advertisements within the
definition provided by the TCPA. Defendant argues that the
faxes are merely invitations to participate in “double
blind medical surveys, ” and that they do not advertise
property, goods, or service for sale, as required by the
TCPA. Defendant further argues that Plaintiffs' reliance
on the hypothetical result of following the survey link
provided in the fax and resulting registration for a survey,
and FAQs, is misplaced as it does not somehow convert the
faxes into advertisements, and only leads to the ultimate
conclusion that Defendant is a for-profit company. Defendant
further argues that because Plaintiffs fail to state a claim
under federal law, the Court should decline to exercise
supplemental jurisdiction over the state law conversion
claim. The Court considers each argument in turn.
in this case is the TCPA's prohibition on the sending of
unsolicited advertisements to fax machines. 47 U.S.C. §
227(b)(1)(C). The TCPA defines an “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.” 47 U.S.C. § 227(a)(5). The
TCPA tasks the Federal Communications Commission
(“FCC”) with developing regulations with which to
implement it provisions. See 47 U.S.C. §
227(b)(2) (“The Commission shall prescribe regulations
to implement the requirements of this subsection.”).
The FCC provides additional guidance with respect to what
qualifies as an unsolicited advertisement under the TCPA and
examples of the types of faxes which would violate the
statute. See Rules & Regs. Implementing the Tel.
Consumer Prot. Act of 1991; Junk Fax Prevention Act of
2005, 71 Fed. Reg. 25967-01 (May 3, 2006). Furthermore,
“the [FCC] concludes that any surveys that serve as a
pretext to an advertisement are subject to the TCPA's
facsimile advertising rules. The TCPA's definition of
‘unsolicited advertisement' applies to any
communication that advertises the commercial availability or
quality of property, goods or services, even if the message
purports to be conducting a survey.” Id. Thus,
the FCC contemplates that savvy companies may devise a
multilayered approach in attempting to avoid violating the
TCPA, and acknowledges that an otherwise benign fax may
violate the TCPA, if it ultimately leads to the promotion of
goods or services. See Drug Reform Coordination Network,
Inc. v. Grey House Publ'g, Inc., 106 F.Supp.3d 9, 13
(D.D.C.2015) (“The regulations thus provide that a fax
that does not on its face promote a product or service may
nonetheless violate the TCPA if it is a precursor to a future
pertinent part, the Complaint alleges that through the online
survey program, Defendant gathers information and opinions
from health professionals, which it then shares with its
clients, who are companies in the pharmaceutical industry.
Compl. ¶¶ 9, 23. The faxes at issue direct a
potential participant to a survey weblink, which in turn
directs the potential participant to the website's
target advertising and marketing based upon information
provided by a potential participant during the registration
process. Id. ¶¶ 25-30. “For example,
a user that registers with oncology as his/her specialty, or
frequently uses oncology-related Services, or informs M3 that
oncology is a significant component of his/her practice may
be served oncology-related advertisements and invitations to
participate in oncology-related sponsored programs, on both
M3 and third party Services.” Id. ¶ 30;
see also ECF No. [44-16]. Moreover, Defendant's
company's sites and providing “User Materials,
” the user grants Defendant and others the right
“to use User Materials in connection with all aspects
of the operation and promotions of Company.”
Id. ¶ 28; see also ECF No. [44-15]. In
the face of these allegations, the ultimate question of
whether Defendant's survey fax is merely a pretext for
advertising its goods or services is a question of fact not
suitable for disposition as a matter of law upon a motion to
dismiss. See Eden Day Spa, Inc. v. Loskove, No.
14-81340-CIV, 2015 WL 1649967, at *3 (S.D. Fla. Apr. 14,
2015) (denying motion to dismiss, where fax could be
construed as an advertisement as part of an overall marketing
campaign); see also Neurocare Inst. of Cent. Fla., P.A.
v. Healthtap, Inc., 8 F.Supp.3d 1362, 1367 (M.D. Fla.
2014) (denying motion to dismiss, where complaint alleged
that a fax promotes services or opportunities available
through a company's website). The cases cited by
Defendant in the Motion to Dismiss do not persuade the Court
otherwise with respect to Count I.
result, Defendant's principal argument for dismissal of
the conversion claim in Count II fails. However, Defendant
argues in the alternative that if the Court declines to
dismiss the TCPA claim, Count II should also be dismissed
because the receipt of a fax is not sufficient to give rise
to a claim for conversion. Defendant relies in part upon
Neurocare, in which the court dismissed a similar
conversion claim because the alleged interference-i.e.
conversion of fax, toner, paper, and employee time-was not
sufficiently “serious, major, or important.” 8
F.Supp.3d at 1368. Since then, however, the Eleventh Circuit
has held otherwise, determining that the dismissal of a
conversion claim was incorrect where the complaint alleged
the receipt of a single one-page fax. Palm Beach Golf
Ctr.-Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781
F.3d 1245, 1258-59 (11th Cir. 2015). “Under Florida
law, a conversion consists of an act in derogation of the
plaintiffs possessory rights, and any wrongful exercise or
assumption of authority over another's goods, depriving
him of the possession, permanently or for an indefinite time,
is a conversion.” Id. at 1258 (internal
citation and quotations omitted). There is no requirement
that the property have a particular monetary value to be
converted. Id. at 1259. In fact, the opposite is
true. “Although the value of the property converted may
be significant in determining the amount of damages to be
awarded, it appears wholly irrelevant in assessing the
legitimacy of the initial cause of action.”
Id. (citing Warshall v. Price, 629 So.2d
903, 904 n.3 (4th DCA 1993)). Therefore, Defendant's
alternative argument for dismissal of Count II also fails.
it is ORDERED AND ADJUDGED that Defendant's Motion to
Dismiss, ECF No. , is DENIED. As a result, the Court need
not separately consider the Motion to Stay, ECF No. ,
which is DENIED AS MOOT. Defendant shall file an answer to