Robert W. Mauthe, M.D., P.C. v. Millennium Health LLC
| Decision Date | 29 May 2020 |
| Docket Number | CIVIL ACTION NO. 18-1903 |
| Parties | ROBERT W. MAUTHE, M.D., P.C., individually and on behalf of all others similarly situated, Plaintiff, v. MILLENNIUM HEALTH LLC, Defendant. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
The plaintiff brings a Telephone Consumer Protection Act ("TCPA") claim and state law conversion claim against the defendant, alleging a one-page fax promoting a free seminar about urine drug testing, which the plaintiff received from the defendant, constituted an unsolicited advertisement. The defendant moves for summary judgment.
After reviewing the parties' submissions and the operative complaint, the court grants the defendant's motion for summary judgment with respect to the plaintiff's claims brought under the TCPA because the fax does not constitute an unsolicited advertisement as defined outright in the TCPA. The court also dismisses without prejudice the remaining state law claim because the court declines to exercise jurisdiction over it. In rendering this decision, the court does not pull back the curtain and examine whether the fax for the free seminar was actually a pretext in that the defendant used the free seminar to promote its goods or services. The court concludes that it need not engage in a pretext analysis, and, instead, only examines the fax on its face.
The plaintiff, Robert W. Mauthe, M.D., P.C., filed the original complaint against the defendant, Millennium Health LLC, on May 7, 2018. Doc. No. 1. The following day, the plaintiff filed a motion for class certification. Doc. No. 2. On May 16, 2018, this court denied the motion for class certification without prejudice, given that the plaintiff had not yet engaged in any discovery or even served the defendant with the complaint. May 16, 2018 Order at 1, Doc. No. 4. The defendant filed a motion to dismiss, or, alternatively, motion to stay the plaintiff's original complaint due to separate, ongoing litigation. Millennium Health, LLC's Mot. to Dismiss or, Alternatively, Mot. to Stay at 1, Doc. No. 26.
The plaintiff filed the first amended class action complaint on August 23, 2018. Doc. No. 29. The amended complaint alleges that the defendant violated the TCPA by sending the plaintiff a fax on May 2, 2017, which discussed a free seminar hosted by the defendant. Am. Compl. at ¶¶ 14, 15, 45, and Ex. A. The plaintiff alleges that the defendant violated the TCPA by sending this fax because (1) the fax "advertises Defendant's 'free' webinars—which are merely 'free' seminars conducted through an internet website—to recipients (i.e., medical providers such as Plaintiff)"; (2) "Defendant's webinars serve as a pretext for advertising and promoting the commercial availability and quality of Defendant's products and services, including its prescription drug monitoring products and related services"; and (3) the "Defendant's webinar, and the fax that the Defendant sent promoting it, is a pretext to advertise Defendant's drug-monitoring products and services, either during the webinar or thereafter using the contact information provided by fax recipients during the registration process." Id. at ¶¶ 45, 9, 19.
In response to the amended complaint, the defendant filed a motion to dismiss for failure to state a claim, or, alternatively, motion to stay the case in anticipation of separate, ongoinglitigation on September 6, 2018. Millennium Health, LLC's Mot. to Dismiss the First Am. Compl. or, Alternatively, Mot. to Stay, Doc. No. 30. Upon receiving notice of this motion, the court denied the first motion to dismiss, or, alternatively, stay as moot on September 10, 2018. Doc. No. 31. The plaintiff filed a response in opposition to the defendant's motion on October 4, 2018. Doc. No. 33. After receiving two extensions of time, the defendant filed a reply in support of its motion on December 6, 2018. Doc. Nos. 36, 38, 39. The court held an initial pretrial conference and oral argument on the motion on Tuesday, January 8, 2019. Doc. No. 44. On January 10, 2019, the court denied the defendant's motion without prejudice to the defendant raising its arguments in a motion for summary judgment. Jan. 10, 2019 Order at 1, Doc. No. 43. Additionally, the court ordered the parties to engage in limited discovery on the issue of whether the fax was an advertisement or "part of a larger advertising scheme." Id.
After engaging in limited discovery, on August 26, 2019, the defendant filed the instant motion for summary judgment, supporting brief, and statement of uncontested facts. Doc. No. 61. On October 7, 2019, the plaintiff filed a brief in opposition to the motion for summary judgment, response to the defendant's statement of facts, and statement of additional facts. Doc. No. 66. On November 4, 2019, the defendant filed a reply in support of its motion, which also included the defendant's responses to the plaintiff's statement of additional facts. Doc. No. 70.
The uncontested facts are as follows. The plaintiff is a private medical practice located in Center Valley, Pennsylvania. Def. Millennium Health, LLC's Separate Statement of Undisputed Facts ("Def.'s Facts") at ¶ 1, Doc. No. 61-4; Pl.'s Resp. to Def. Millennium Health, LLC's Statement of Undisputed Facts ("Pl.'s Resp.") at ¶ 1, Doc. No. 66-1. The plaintiff has been a named plaintiff in at least eleven other cases alleging TCPA violations. Def.'s Facts at ¶ 2; Pl.'s Resp. at¶ 2.1 The defendant is a laboratory that provides medication monitoring and drug-testing services, including urine drug testing, to clinicians and healthcare professionals who require information about patients' recent use of prescription medications and illicit drugs. Def.'s Facts at ¶¶ 8-9; Pl.'s Resp. at ¶¶ 8-9. Urine drug testing is a clinical tool that provides objective information about medications, recent medication use, or use of illicit substances. Def.'s Facts at ¶ 10; Pl.'s Resp. at ¶ 10. The plaintiff had previously submitted some of his patients' urine specimens to the defendant for drug testing. Def.'s Facts at ¶ 14; Pl.'s Resp. at ¶ 14. The plaintiff provided the defendant with his fax number in this context. Def.'s Facts at ¶ 14; Pl.'s Resp. at ¶ 14.
On May 2, 2017, the defendant sent the plaintiff a one-page fax, which is the subject of this litigation. Def.'s Facts at ¶ 15; Pl.'s Resp. at ¶ 15. The defendant sent this one page fax to its entire customer base. Pl.'s Statement of Add'l Facts in Opp. to Def.'s Mot. for Summ. J. ("Pl.'s Add'l Facts") at ¶ 3; Millennium Health LLC's Resp. to Pl's Statement of Add'l Facts ("Def.'s Resp.") at ¶ 3. The top of the fax contains the defendant's corporate logo and a header that reads"National Education Webinar Series 2017." Def.'s Facts at ¶ 18; Pl.'s Resp. at ¶ 18. Directly below this header, the fax states:
Def.'s Facts at ¶ 19; Pl.'s Resp. at ¶ 19. Below the description of the webinar and its objectives, the fax contains a headshot of the host of the seminar, and it also provides her biographical information:
Maria Chianta, Pharm.D. Director of Clinical Affairs, Managed Markets for Millennium Health began her career in community pharmacy. She began working for an international pharmaceutical and medical device manufacturer where she directed medical information and global post-marketing surveillance systems operations for many years. She transitioned into Clinical Affairs to pursue her passion for education on the value of clinical products. Currently, Dr. Chianta provides clinical expertise and leadership in developing clinical education tools and services supporting appropriate utilization of Millennium Health's offerings to improve patient, provider, payer and societal outcomes. She educates nationally on the value of appropriate clinical medication monitoring and pharmacogenetic testing. During her time at Millennium Health, she has collaborated with many payer organizations and has given numerous lectures nationally on the appropriate utilization of urine drug testing and pharmacogenetic testing to help improve carefor injured workers. She serves as a preceptor for pharmacy students from Southern Illinois Edwardsville School of Pharmacy.
Def.'s Facts at ¶ 21; Pl.'s Resp. at ¶ 21.
Below Dr. Chianta's biography, the fax provides short descriptions of three other educational webinars that are archived on the defendant's website.
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