Filed: Apr. 17, 2019
Latest Update: Mar. 03, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 18-2119 _ ROBERT W. MAUTHE, M.D., P.C., INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Appellant v. NATIONAL IMAGING ASSOCIATES, INC. _ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civ. No. 5-17-cv-01916) Honorable Lawrence F. Stengel, District Judge _ Argued March 8, 2019 BEFORE: AMBRO, RESTREPO, and GREENBERG, Circuit Judges (Filed: April 17, 2019) _ Phill
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 18-2119 _ ROBERT W. MAUTHE, M.D., P.C., INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Appellant v. NATIONAL IMAGING ASSOCIATES, INC. _ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civ. No. 5-17-cv-01916) Honorable Lawrence F. Stengel, District Judge _ Argued March 8, 2019 BEFORE: AMBRO, RESTREPO, and GREENBERG, Circuit Judges (Filed: April 17, 2019) _ Philli..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 18-2119
______________
ROBERT W. MAUTHE, M.D., P.C., INDIVIDUALLY AND
ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
Appellant
v.
NATIONAL IMAGING ASSOCIATES, INC.
______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 5-17-cv-01916)
Honorable Lawrence F. Stengel, District Judge
______________
Argued March 8, 2019
BEFORE: AMBRO, RESTREPO, and GREENBERG, Circuit Judges
(Filed: April 17, 2019)
______________
Phillip A. Bock (argued)
Daniel J. Cohen
David M. Oppenheim
Bock Hatch Lewis & Oppenheim
134 North La Salle Street
Suite 1000
Chicago, IL 60602
Richard E. Shenkan
Shenkan Injury Lawyers LLC
6550 Lakeshore Street
West Bloomfield, MI 48323
Attorneys for Appellant
Michael E. Baughman (argued)
Pepper Hamilton
3000 Two Logan Square
18th and Arch Streets
Philadelphia, PA 19103
Eric S. Merin
777 South 20th Street
Philadelphia, PA 19146
Attorneys for Appellee
______________
OPINION*
______________
GREENBERG, Circuit Judge.
I. INTRODUCTION
This matter comes on before this Court on the appeal of plaintiff Robert W.
Mauthe M.D. P.C., challenging the District Court’s dismissal under Fed. R. Civ. P.
12(b)(6) of his class-action complaint under the Telephone Consumer Protection Act, 47
U.S.C. § 227 (“TCPA”), entered on April 25, 2018. Although plaintiff is a professional
corporation, we refer to it as though it is Robert W. Mauthe as an individual. Mauthe
alleged that he and other class members received an unsolicited advertisement via fax
____________________
*This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
2
from defendant National Imaging Associates, Inc. sent in violation of the TCPA. For the
reasons stated below, we will affirm the Court’s order of dismissal.
II. FACTUAL BACKGROUND
We recite only those facts that are relevant to this opinion which we take from
Mauthe’s complaint. On September 23, 2014, Mauthe received a satisfaction survey
relating to the quality of its services, via fax, from defendant. Mauthe alleges that he did
not have an established business relationship with defendant, implying that he did not
know why defendant sent the survey to him. Mauthe charges that the fax was an
unsolicited advertisement that defendant sent to him in violation of the TCPA because it
contained defendant’s name, promoted the quality of its services, and referred its
recipient to a website to which he could send his responses to the questions in the survey.
Mauthe also alleges that the fax was “a pretext to increase awareness and use of
Defendant’s healthcare management services and to increase traffic to Defendant[’s]
website, www.RadMD.com[.]” J.A. 18. Mauthe alleges that at least 39 other similarly-
situated persons or entities received the fax, and he sought to advance a class-action
claim against defendant, for “each person or entity that was sent one or more telephone
facsimile messages (‘faxes’) about healthcare services available through
www.RadMD.com.” J.A. 20.
3
III. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction under 28 U.S.C. § 1331 and we have
jurisdiction under 28 U.S.C. § 1291. We exercise plenary review of a district court’s
dismissal under Rule 12(b)(6) for failure to state a claim upon which relief may be
granted. Geness v. Cox, 902 F.3d 344, 353 (3d Cir. 2018). In determining whether
plaintiffs sufficiently state a claim to survive a motion to dismiss filed under Rule
12(b)(6), “we accept all well-pleaded allegations as true and draw all reasonable
inferences in favor of the plaintiff. However, we disregard threadbare recitals of the
elements of a cause of action, legal conclusions, and conclusory statements.” City of
Cambridge Ret. Sys. v. Altisource Asset Mgmt. Corp.,
908 F.3d 872, 878-79 (3d Cir.
2018) (internal quotations and citations omitted). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Zuber v. Boscov’s,
871 F.3d
255, 258 (3d Cir. 2017) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678,
129 S. Ct. 1937,
1949 (2009)).
IV. DISCUSSION
Under the TCPA it is “unlawful for any person within the United States, or any
person outside the United States if the recipient is within the United States . . . to use any
telephone facsimile machine, computer, or other device to send, to a telephone facsimile
machine, an unsolicited advertisement[.]” 47 U.S.C. § 227(b)(1)(c). The TCPA defines
an unsolicited advertisement as “any material advertising the commercial availability or
4
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.” Id. § 227(a)(5).
“‘Advertising’ is the action of drawing the public’s attention to something to promote its
sale.” Florence Edocrine Clinic, PLLC v. Arriva Med., LLC,
858 F.3d 1362, 1366 (11th
Cir. 2017) (internal quotations and citations omitted). “So to be an ad, the fax must
promote goods or services to be bought or sold, and it should have profit as an aim.”
Sandusky Wellness Ctr., LLC v. Medco Health Sols., Inc.,
788 F.3d 218, 222 (6th Cir.
2015).1
Though an advertisement need not be as explicit as “buy this product from us,” at
a minimum for the sending of the fax to violate the TCPA it must directly or indirectly
inform the recipient that the sender or some other entity sells something of value. See
Golan v. Veritas Entm’t, LLC, 788 F.3d 814, 819 (8th Cir. 2015) (“Because the messages
did not mention property, goods, or services, we agree that they were not advertisements
prohibited by the TCPA or its implementing regulations.”) Moreover, the fax either must
(1) notify a potential buyer that he or she can purchase a product, goods, or services from
the sending entity or perhaps another seller, see
Sandusky, 788 F.3d at 222 (finding that
faxes were not advertisements, even though they call attention to items and services,
because “no record evidence shows that they do so because the drugs or [] services are
for sale [], now or in the future”), or (2) induce or direct a willing buyer to seek further
information through a phone number, an email address, a website, or equivalent method
1
We are not concerned with a fax which the sender sends seeking to purchase something
from its recipient.
5
for the purposes of making a purchase, see Holtzman v. Turza, 728 F.3d 682, 685-87 (7th
Cir. 2013); Chesbro v. Best Buy Stores, L.P.,
705 F.3d 913, 918 (9th Cir. 2012). Thus,
the fax must convey the impression to its recipient that a seller is trying to make a sale to
him. We believe it is important to limit the TCPA to promotion of the sale of goods or
services lest any unsolicited fax that a commercial entity sends that contains a phone
number or website address conceivably could become an “unsolicited advertisement,” a
result that would be inconsistent with the statutory definition of that term.
It is not apparent from its content that the fax informed Mauthe that the defendant
wanted to sell him something. The District Court held that it did not. Mauthe v. Nat’l
Imaging Assocs. Inc., No. 17-1916, 2018 WL 1960945, at *2 (E.D. Pa. Apr. 25, 2018).
Mauthe argues the Court’s conclusion was erroneous because the Court ignored his
allegation in the complaint that defendant sold healthcare management services. We fail
to see how such allegation had any relevance on how the fax would be perceived by its
recipients—a recipient’s outside knowledge that a sender sells something does not
transform every fax sent by such sender to a recipient with such knowledge into an
advertisement. Given the discrepancy between what can be deduced from the fax itself
and Mauthe’s allegations, it was proper for the District Court to find that the fax did not
offer to sell anything of value.2
2
Although the complaint alleged that Mauthe did not have a prior business relationship
with defendant, at oral argument he conceded that his prior interaction with defendant
was likely what prompted defendant to send him the fax survey. However, we do not
rely on that possibility in reaching our result in our review of the order granting the
motion to dismiss, as that was not alleged.
6
Moreover, the fax did not tell Mauthe that he could purchase healthcare
management services from defendant or direct him to a website for the purposes of
making a purchase. Rather, the single website in the fax to which Mauthe points
explicitly informed him that he should visit the website for the purpose of completing the
satisfaction survey, not to make a purchase. J.A. 32 (“You may also complete the survey
at www.RadMD.com.”). Furthermore, the fax did not, contrary to Mauthe’s allegations,
contain information that would induce a potential buyer to visit the website. Although
Mauthe argues that the fax promoted defendant’s services as “easy to access,”
“effective,” “convenient,” “provider friendly,” and “efficient,” see appellant’s br. 6-7, it
did not claim that its services meet these standards. To the contrary, the fax asked if the
recipient agreed with those descriptions of defendant’s services, thus suggesting that the
recipient already had used defendant’s services. But asking a recipient in a survey
whether a sender’s services meet a standard is not the same thing as claiming the services
meet that standard. Thus, under the statutory definition of advertisement, the use of the
foregoing terms did not make the fax an advertisement.3
3
We recognize that there may be another way in which an unsolicited fax may be
construed as an advertisement, i.e., a sender may encourage the recipient to use an item
or service more often, even if the recipient does not purchase such item or service at all,
because the increased usage directly would benefit the sender by increasing sales. A
classic example would be a fax encouraging doctors to prescribe a certain drug more
often, even though patients not doctors normally purchase drugs. However, Mauthe did
not allege such a third-party scenario. We also point out that while Mauthe explains his
theory of liability in his reply brief, see appellant’s reply br. 3-4, 8, we find no support for
his explanation in the complaint. We need not “accept assertions in a brief without
7
Mauthe also contends that the fax was a pretext for commercial solicitation. See
Fulton v. Enclarity, Inc., 907 F.3d 948, 954 (6th Cir. 2018) (“[T]he TCPA covers faxes
that serve as ‘pretext for a commercial solicitation.’”)4 To support this contention,
Mauthe alleged that when he visited the website listed in the fax, he was subjected to
numerous advertisements about defendant’s services. J.A. 19. We fail to see how this
circumstance established that the fax survey sent to him was a pretext for more
advertising. By Mauthe’s theory, any fax sent by defendant, for any purpose, as long as it
contains defendant’s website address, could become a “pretext” to more advertising. We
will not adopt a standard under the TCPA which effectively would construe the inclusion
of a website address in a fax as de facto advertising.
We want to make clear that we do not suggest that we endorse the pretext theory
of liability under TCPA. We think that in almost all cases, a recipient of a fax could
argue under the pretext theory that a fax from a commercial entity is an advertisement.
The pretext theory, unless closely cabined, would extend TCPA’s prohibition too far.
support in the pleadings. After all, a brief is not a pleading.” Chavarriaga v. N.J. Dep’t
of Corr., 806 F.3d 210, 232 (3d Cir. 2015).
4
Mauthe’s citations to Physicians Healthsource, Inc. v. Boehringer Ingelheim Pharm.,
Inc.,
847 F.3d 92 (2d Cir. 2017), and Fulton v.
Enclarity, 907 F.3d at 948, in his opening
and reply briefs in support of his pretext assertions are inapropos, because in both cases,
the pretext actions by the defendants were to create future opportunities to send more
advertisements. 847 F.3d at 96; 907 F.3d at 955. This distinction is important because
the pretext theory is predicated on the potential that a plaintiff may be harassed by even
more advertising in the future. Here, there was no allegation that defendant intended to
send Mauthe any future faxes, let alone any more advertisements.
8
But we need not explore the boundaries of pretext liability any further because Mauthe’s
claim could not survive the most expansive application of the pretext theory.5
We understand Mauthe’s real theory behind his claim, that defendant may have
intentionally sent this fax survey to dozens of recipients unsolicited as some sort of
nonobvious promotion of its services. However, even though the complaint makes
generalized class action allegations, it does not specifically identify a single recipient of
the fax that Mauthe received without solicitation, by a recipient other than Mauthe. If the
complaint had included explicit factual allegations of other identified individuals
receiving this fax survey without solicitation that circumstance might have been material
to our analysis here, but it did not make such explicit allegations. Thus, the theory of
liability based on a nonobvious promotion of defendant’s services through the sending of
multiple faxes is a mere conclusory statement rather than a factual allegation. In fact,
based on the factual allegations in the complaint, it was just as plausible that defendant
sent the fax to Mauthe by mistake, and not because defendant was attempting to make a
sale to him. Even construing the complaint in the light most favorable to Mauthe, his
allegations did not raise his TCPA claim above the speculative level. Accordingly, we
5
The pretext theory has its origin in a 2006 FCC rule, stating “any surveys that serve as a
pretext to an advertisement are subject to the TCPA’s facsimile advertising rules.” Rules
and Regulations Implementing the Tel. Consumer Prot. Act of 1991; Junk Fax Prevention
Act of 2005, 71 Fed. Reg. 25967, 25973 (May 3, 2006). It is unclear if we must follow
the FCC’s interpretation of the statute and adopt the pretext theory—in fact, in a different
context the legal issue is currently before the Supreme Court in PDR Network, L.L.C. v.
Carlton & Harris Chiropractic, Inc., No. 17-1705 (filed June 21, 2018).
9
find the District Court did not err in holding that the fax survey was not an advertisement,
and we will affirm its April 25, 2018 dismissal order.6
6
Mauthe also argues the District Court erred by finding that he had a prior relationship
with defendant, despite his contrary allegation, and the Court’s error colored its analysis.
Because we affirm the Court’s order even accepting Mauthe’s allegation that he did not
have a prior relationship with defendant as true, we need not address this argument.
10
