Zean v. Fairview Health Servs., Civ. No. 15-3217 (PAM/HB)
| Decision Date | 24 February 2016 |
| Docket Number | Civ. No. 15-3217 (PAM/HB) |
| Citation | 149 F.Supp.3d 1129 |
| Parties | Samuel Zean, on behalf of himself and all others similarly situated, Plaintiff, v. Fairview Health Services d/b/a Fairview Home Medical Equipment, Defendant. |
| Court | U.S. District Court — District of Minnesota |
Christopher D. Jozwiak, Patricia A. Bloodgood, Shawn J. Wanta, Baillon Thome Jozwiak & Wanta LLP, Minneapolis, MN, for Plaintiff.
Bryant D. Tchida, Todd A. Noteboom, Calvin P. Hoffman, Stinson Leonard Street LLP, Minneapolis, MN, for Defendant.
This matter is before the Court on Defendant Fairview Health Services' Motion to Dismiss Plaintiff Samuel Zean's claims under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, et seq. For the reasons that follow, Fairview's Motion is granted.
Fairview Health Services (“Fairview”) is a Minnesota nonprofit corporation operating clinics and hospitals within the state. In September 2014, Plaintiff Samuel Zean purchased sleep therapy equipment from Fairview, which required him to renew supplies like masks, cushions, and headgear every three to six months. (Compl. ¶ 10.) Zean alleges that since September 2014, Fairview has called him at least every three months, playing a prerecorded message each time, and that if Zean does not answer his phone or does not place an order with Fairview, Fairview calls every day with the same automated message. (Id. ¶ 12.) Zean says that the calls are made using an automatic dialer, and play prerecorded messages during a call or in a voicemail. (Id. ¶ 14.) These messages prompt Zean to either purchase supplies, or indicate that he does not wish to receive any supplies at this time. (Id. ¶ 15.) When no selection is made, the prompt is repeated three more times. The message provides an option to have the cost of the replacement supplies billed directly to the patient's insurance. (Id. ) Zean states that he received 25 or more of these “telemarketing” calls between September 2014 and the time he filed his Complaint, August 5, 2015. (Id. ¶ 17.)
There is no automated option to opt out of future calls, so Zean called the number from which he had been receiving the automated calls and spoke to an employee, and asked that the calls stop. (Id. ¶¶ 18, 19.) The employee agreed, and told Zean to call back when he needed to order supplies. (Id. ¶ 19.) Zean does not allege when he called the employee to opt out or whether the calls stopped after this.
Zean claims that Fairview called another unidentified person who had purchased a medical device from Fairview approximately 100 times (id. ¶ 20), and that thousands of wireless telephone numbers received the same or similar calls and voicemail messages from an automatic dialing system. (Id. ¶ 21.) Zean thus brings this case as a putative class action on behalf of all persons “who received one or more unauthorized automated or pre-recorded phone calls or voicemail messages from or on behalf of Fairview or any of its subsidiaries or affiliates.” (Id. ¶ 22.) Zean seeks: (1) class certification, (2) actual and statutory damages, (3) pre-judgment and post-judgment interest, (4) a permanent injunction requiring Fairview to “cease all phone call and voicemail message advertising activities,” and (5) costs and attorney's fees.
Fairview moves to dismiss the Complaint, arguing that the calls were not “telemarketing” calls, and that if they were, Zean authorized the calls by signing a written consent form and by providing a cellular telephone number as the number where he could be reached. Fairview filed an affidavit with an exhibit showing a heavily redacted version of the consent form. One nonredacted portion, the written consent, states:
I understand Fairview may need to contact me in regard to my services and accounts. I give permission for Fairview and its approved agents to contact me by phone (including my cell phone). This may include the use of automatic dialers or pre-recorded messages.
Fairview explains that the redactions to the exhibit were necessary under federal and state health information privacy laws.
Zean responds that lack of prior express consent is an affirmative defense and is not a basis for a motion to dismiss, because the defense does not appear on the face of the Complaint. Zean also contends that Fairview's Motion is premised on exhibits outside the pleadings, and that even if the exhibits are considered, Zean's written consent did not encompass consent to the types of calls underlying the TCPA claims, namely telemarketing calls.
To survive a motion to dismiss for failure to state a claim, a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ); see also Fed. R. Civ. P. 12(b)(6). A claim bears facial plausibility when it allows the Court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. When evaluating a motion to dismiss, the Court must accept factual allegations as true, Gomez v. Wells Fargo Bank, N.A. , 676 F.3d 655, 660 (8th Cir.2012), but it need not give effect to those that simply assert legal conclusions, McAdams v. McCord , 584 F.3d 1111, 1113 (8th Cir.2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” are insufficient to support a claim. Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.
Fairview argues that as a tax-exempt nonprofit organization, the TCPA does not prevent Fairview from making telemarketing calls to cellular phones using an automatic dialing system with the called party's prior express consent. According to Fairview, Zean provided written consent to automated and pre-recorded calls by signing the consent form and by providing his cellular telephone number. The Federal Communications Commission (“FCC”), which is authorized by Congress to “prescribe regulations to implement the requirements” of the TCPA, 47 U.S.C. § 227(b)(2)(f), has stated that “persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary,” In re Rules and Regs. Implementing Tel. Consumer Prot. Act of 1991, 7 F.C.C.R. 8752, 8769 ¶ 31 (Oct. 16, 1992).
Zean alleges that express consent is not an element of a prima facie TCPA case. Rather, Zean contends, it is an affirmative defense for which Fairview bears the burden of proof. Zean cites Elkins v. Medco Health Solutions, Inc. , No. 12cv2141, 2014 WL 1663406, at *6 (E.D.Mo. Apr. 25, 2014), which dismissed plaintiff's TCPA claim on summary judgment because plaintiff provided her phone number on a benefits enrollment form and signed a form giving defendant permission to use her personal information to inform her about health-related services. The Elkins court construed “express consent” as an affirmative defense, quoting a section of the TCPA implementing regulations that applies to creditors: “ ‘[w]e conclude that the creditor should be responsible for demonstrating that the consumer provided prior express consent’ because the creditor is ‘in the best position to have records kept in the usual course of business showing such consent.’ ” Id. at *6 (quoting In re Rules and Regs. Implementing Tel. Consumer Prot. Act of 1991, 23 F.C.C.R. 559, 565 ¶ 10 (Jan. 4, 2008)).
Elkins found support in the decisions of “one circuit court and many district courts,” none of which are in the Eighth Circuit, that “have concluded that consent is an affirmative defense that must be pleaded and proven by the defendant.” Elkins , 2014 WL 1663406 at *6. However, the Elkins court also noted that the Eighth Circuit Court of Appeals has not addressed the issue whether the plaintiff or the defendant has the burden of proving prior express consent.
The plain language of the TCPA classifies lack of prior express consent as an element of a prima facie TCPA claim:
It shall be unlawful for any person ... to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice to any telephone number assigned to ... cellular telephone service.
47 U.S.C. § 227(b)(1)(A). Fairview argues that Steinhoff v. Star Tribune Media Co., LLC confirms this reading of the statute. No. 13cv1750, 2014 WL 1207804, at *1 (D.Minn. Mar. 24, 2014) (Nelson, J.) (). Under Steinhoff , to establish a prima facie claim under the TCPA, Zean must prove that: “(1) the defendant called a cellular telephone...
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Zean v. Fairview Health Servs.
...not stated a plausible claim that Fairview made calls without the "prior express consent of the called party." Zean v. Fairview Health Servs. , 149 F.Supp.3d 1129 (D. Minn. 2016), quoting 47 U.S.C. § 227(b)(1)(A). Zean appeals, arguing the court erred in ruling that consent is an element of......
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