Geismann V. American Homepatient, Inc

Filing 34

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant's Motion to Dismiss the Complaint, or, in the Alternative, Dismiss or Strike the Class Allegations from the Complaint (ECF No. 9 ) is DENIED. IT IS FURTHER ORDERED that Plaintiff's Motion for Class Certification, filed in State Court (ECF No. 5), is DENIED. Signed by District Judge Ronnie L. White on June 8, 2015. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RADHA GIESMANN, MD, P.C., individually
and on behalf of all other similarlysituated persons,
Plaintiff,
v.
AMERICAN HOMEPATIENT, INC., and
JOHN DOES 1-10,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

No. 4:14CV1538 RLW

MEMORANDUM AND ORDER
This matter is before the Court on Defendant American Home Patient, Inc.’s Motion to
Dismiss the Complaint, or, in the Alternative, Dismiss or Strike the Class Allegations from the
Complaint (ECF No. 9). The motion is fully briefed and ready for disposition. Upon review of
the motion and the related memoranda, the Court will deny Defendant’s motion.
I. Background
On August 4, 2014, Plaintiff Radha Geismann MD, P.C. filed a Class Action Petition in
the Circuit Court of St. Louis County, Missouri. Plaintiff contends that on June 22, 2013, it
received an unsolicited advertisement facsimile sent by Defendants. (Compl. ¶¶10-11) Plaintiff
further contends that Defendants sent other fax advertisements to many other persons. Plaintiff’s
Complaint alleges a violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227
(“TCPA), conversion under Missouri common law, and a violation of the Missouri Consumer
Fraud and Deceptive Business Practices Act (“MPA”). 1

1

On October 21, 2014, the Court granted Plaintiff’s motion to voluntarily dismiss the MPA
claim without prejudice. (ECF No. 22)

Defendant American Homepatient, Inc. subsequently filed a motion to dismiss the
complaint, or alternatively, to dismiss or strike the class allegations. Defendant asserts that
Plaintiff’s TCPA claim fails to state a claim upon which relief can be granted because the fax
letter attached to the Complaint is not an “advertisement” as defined by the TCPA. Defendant
also argues that Plaintiff’s conversion claim fails to satisfy the minimum pleading standards to
survive a motion to dismiss. Finally, Defendant contends that Plaintiff’s class allegations fail as
a matter of law because Plaintiff has not pled a plausible claim for class relief, nor can it satisfy
the prerequisites to certify a class action. Plaintiff responds that Defendant’s argument that the
fax was not an advertisement is factually and legally unsupportable. Further, Plaintiff claims that
it has properly stated a claim for conversion. Plaintiff also contends that Defendant’s attempt to
strike the class allegations at the pleading stage fails because Defendant erroneously argues that
consent requires an individual determination and because Plaintiff has not had an opportunity to
conduct discovery.
II. Legal Standard
A complaint must be dismissed under Federal Rule 12(b)(6) for failure to state a claim
upon which relief can be granted if the complaint fails to plead “enough facts to state a claim to
relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007)
(abrogating the “no set of facts” standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46
(1957)). While the Court cautioned that the holding does not require a heightened fact pleading
of specifics, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’
requires more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do.” Id. at 555. In other words, “[f]actual allegations must be enough to raise

2

a right to relief above the speculative level . . . .” Id. This standard simply calls for enough facts
to raise a reasonable expectation that discovery will reveal evidence of the claim. Id. at 556.
Courts must liberally construe the complaint in the light most favorable to the plaintiff
and accept the factual allegations as true. See Id. at 555; see also Schaaf v. Residential Funding
Corp., 517 F.3d 544, 549 (8th Cir. 2008) (stating that in a motion to dismiss, courts accept as
true all factual allegations in the complaint); Eckert v. Titan Tire Corp., 514 F.3d 801, 806 (8th
Cir. 2008) (explaining that courts should liberally construe the complaint in the light most
favorable to the plaintiff). Further a court should not dismiss the complaint simply because the
court is doubtful that the plaintiff will be able to prove all of the necessary factual allegations.
Twombly, 550 U.S. at 556. However, “[w]here the allegations show on the face of the complaint
there is some insuperable bar to relief, dismissal under Rule 12(b)(6) is appropriate.” Benton v.
Merrill Lynch & Co., 524 F.3d 866, 870 (8th Cir. 2008) (citation omitted). Courts “‘are not
bound to accept as true a legal conclusion couched as a factual allegation.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). When considering a motion to
dismiss, a court can “begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.” Id. at 679. Legal conclusions must be
supported by factual allegations to survive a motion to dismiss. Id.
With regard to class certification, a proposed class must satisfy the requirements of
Federal Rule of Civil Procedure 23(a), as well as one of the three alternatives in Rule 23(b), in
order to be certified. Lindsay Transmission, LLC v. Office Depot, Inc., No. 4:12-CV-221 (CEJ),
2013 WL 275568, at *3 (E.D. Mo. Jan. 24, 2013) (citation omitted). “As a threshold matter, a
proposed class must always meet the Rule 23(a) requirements of numerosity, typicality,
commonality, and adequacy of representation.” Id. However, when a plaintiff seeks

3

certification under Rule 23(b)(3), proponents of class certification must also demonstrate: “(1)
that the questions of law or fact common to the members of the proposed class predominate over
questions affecting only individual class members; and (2) that a class action is superior to other
available methods of resolving the controversy.” Id. (citation omitted).
III. Discussion
A. TCPA Claim
Defendant first contends that Plaintiff is unable to state a claim under the TCPA because
the faxed letter was not an advertisement. The fax states: “Your Medicare Patients have 1 week
to find a new provider. American HomePatient was chosen to be a contracted provider with
Medicare for respiratory products and services in your area . . . .” (Pet. Ex. A, ECF No. 3-1)
The fax then asks the recipient to “Make American HomePatient the Respiratory Provider of
Choice for your patients.” (Id.)

Defendant contends that the fax was merely informational and

was not directed to patients or consumers. Thus, Defendant asserts, the fax does not meet the
requirements of the TCPA. Plaintiff, on the other hand, argues that the fax meets the definition
of advertisement under the TCPA.
The TCPA prohibits any person within the United States from using “any telephone
facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone
facsimile machine.” 47 U.S.C. § 227(b)(1)(C). An unsolicited advertisement is “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).
At the pleading stage, the Court finds that Plaintiff has stated a claim that is plausible on
its face. Plaintiff contends that the fax advertises the commercial availability of Defendant’s

4

respiratory goods and services. While Defendant relies on Phillips Randolph Enters., LLC v.
Adler-Weiner Research Chicago, Inc., in support of its position, the Court finds this case is
inapposite. 526 F. Supp. 2d 851 (N. D. Ill. 2007). In Phillips Randolph Enters., the court found
that a fax inviting business owners to participate in a research study did not promote a
commercially available service. Id. at 852-53. The court reasoned that the potential participants
had to pre-qualify for the study, rendering the study not commercially available. Id. at 853; see
also St. Louis Heart Ctr., Inc. v. Caremark L.L.C., No. 4:12CV2151 TCM, 2013 WL 9988795, at
*3-4 (E.D. Mo. April 19, 2013) (distinguishing Phillips Randoph Enters. from a fax offering a
program to help address potential non-adherence to prescribed diabetes therapy because the
program was commercially available and not offered only to qualified individuals).
In the instant case, Plaintiff raises a plausible claim that the fax promotes the commercial
availability of Defendant’s respiratory products. The fax indicates that Defendant was chosen to
be a contracted provider with Medicare for respiratory products and services. (ECF No. 3-1)
The fax then invites the recipient to make Defendant the “Respiratory Provider of Choice for
your patients” based on its “proactive, outcomes-based patient-monitoring and follow-up[;] sleep
patient coaching, ongoing support, and unparalleled long-term adherence to therapy[; and]
Medicare provider you and your patients can count on.” (Id.) In addition to providing
information, the fax details the products and services it provides, thus stating a claim sufficient
under Rule 12(b)(6) that the fax constitutes and advertisement under the TCPA. 2 Radha
Geismann, M.D., P.C. v. Byram Healthcare Ctrs., Inc., No. 4:09CV01980, 2010 WL 1930060, at
*3 (E.D. Mo. May 10, 2010).

2

The Court notes that in its Reply Memorandum, Defendant does not address Plaintiff’s
argument and cases in support that the fax is an advertisement under the TCPA. (Def.’s Reply
Mem. 2, ECF No. 30)
5

B. Conversion Claim
Next, Defendant argues that Plaintiff has failed to state a plausible claim for conversion
under Missouri law. In Count II of the Class Action Petition, Plaintiff alleges that “by sending
Plaintiff and the other class members unsolicited faxes, Defendants improperly and unlawfully
converted their fax machines, toner and paper to its own use.” (Pet. ¶ 58, ECF No. 3) Plaintiff
also asserts that the Defendants converted Plaintiff’s employees’ time to Defendants’ own use.
In its motion to dismiss, Defendant claims that Plaintiff’s vague and inadequate conversion claim
fails to satisfy the pleading standards under Twombly and Iqbal.
Under Missouri law, “[c]onversion is the unauthorized assumption and exercise of the
right of ownership over the personal property of another to the exclusion of the owner’s rights.”
Bradley v. Transp. Sec. Admin., 552 F. Supp. 2d 957, 961 (E.D. Mo. 2008) (citation and internal
quotation omitted). For a plaintiff to prevail on a conversion claim, the plaintiff must prove: “(1)
plaintiff was the owner of the property or entitled to its possession; (2) defendant took possession
of the property with the intent to exercise some control over it; and (3) defendant thereby
deprived plaintiff of the right to possession.” Id.
Here, Plaintiff alleges that it and other class members owned a right to possession of the
chattels and that, by sending unsolicited faxes, Defendants misappropriated Plaintiff’s fax
machines, toner, paper, and employees’ time without authorization, thus depriving the Plaintiff
of the right to use the chattels for other purposes. (Pet. ¶¶ 58-64, ECF No. 3) Defendant,
however, argues that Plaintiff fails to adequately plead that Plaintiff and class members
possessed or had the right to possess the alleged converted chattels at the time the conversion
took place; fails to adequately plead that Defendant actually physically possessed or exercised

6

dominion over the allegedly converted chattels; and fails to adequately plead that Defendant
deprived plaintiff or the alleged class of their right to possession.
The Court finds that, at this stage of the proceedings, Plaintiff’s allegations for
conversion of the fax machines, toner, paper, and employees’ time are sufficient to survive a
motion to dismiss. Radha Geismann, M.D., P.C., v. Byram Healthcare Ctrs., Inc., No.
4:09CV01980 HEA, 2010 WL 1930060, at *3 (E.D. Mo. May 10, 2010). Thus, Defendant’s
motion to dismiss Plaintiff’s conversion claim will be denied.
C. Class Action Claims
Finally, Defendant argues that the class allegations cannot support a class action under
the TCPA and should therefore be dismissed or stricken. Plaintiff’s proposed class is defined as:
All persons who (1) on or after four years prior to the filing of this action, (2)
were sent by or on behalf of Defendant any telephone facsimile transmissions of
material making known the commercial existence of, or making qualitative
statements regarding any property, goods or services (3) with respect to whom
Defendants cannot provide evidence of prior express permission or invitation for
the sending of such faxes, (4) with whom Defendants does [sic] not have an
established business relationships or (5) which did not display a proper opt out
notice.
(Pet. ¶ 34, ECF No. 3) Specifically, Defendant contends that the alleged class is unable to satisfy
the commonality and typicality requirements under Rule 23(a)(2) & (3) because proof of a
violation requires individualized inquiry into whether each individual received the fax
unsolicited. As such, Defendant asserts that Plaintiff’s class allegations plead an impermissible
fail-safe class. Plaintiff, on the other hand, disputes that the putative class is a fail-safe class and
argues that Defendant’s motion to dismiss or strike the class allegations at the pleading stage is
premature. The Court finds that a determination that the class allegations are insufficient on their
face is premature at this stage of the proceedings.

7

As stated above, “a proposed class must always meet the Rule 23(a) requirements of
numerosity, typicality, commonality, and adequacy of representation.” Lindsay, 2013 WL
275568, at *3 (citation omitted). Under Fed. R. Civ. P. 23(c)(1)(A), “[a]t an early practicable
time after a person sues or is sued as a class representative, the court must determine by order
whether to certify the action as a class action.” Rule 23(c)(1) permits the Court to “‘address the
plaintiff’s class allegations when the pleadings are facially defective and definitively establish
that a class action cannot be maintained.’” St. Louis Heart Ctr., Inc. v. Forest Pharm., Inc., No.
4:12-CV-02224, 2013 WL 1076540, at *5 (E.D. Mo. Mar. 13, 2013) (quoting Wright v. Family
Dollar, Inc., 2010 WL 4962838, at *1 (N.D.Ill. Nov. 30, 2010)). However, “‘where the dispute
is factual and discovery is needed to determine whether a class should be certified, it may be
premature to strike class allegations.’” Id. Indeed, “[t]he propriety of class action status can
seldom be determined on the basis of the pleadings alone.” Walker v. World Tire Corp., Inc.,
563 F.2d 918, 921 (8th Cir. 1977). To determine the nature of the class allegations and rule on
compliance with Rule 23 requirements, the court must possess sufficient evidence. St. Louis
Heart Ctr., 2013 WL 1076540, at *5 (citing Walker, 563 F.2d at 921). Where the pleadings fail
to conclusively demonstrate whether the requirements of Rule 23 are met, the parties must be
given the opportunity to discover and present documentary evidence on the class certification
issue. Id.
Defendant asserts that Plaintiff’s proposed fail-safe class is improper on its face. “A failsafe class is ‘one that is defined so that whether a person qualifies as a member depends on
whether the person has a valid claim.’” Lindsay, 2013 WL 275568, at *4 (quoting Messner v.
Northshore Univ. HealthSystem, 669 F.3d 802, 825 (7th Cir. 2012)). “Such a class definition is
improper because a class member either wins or, by virtue of losing, is defined out of the class

8

and is therefore not bound by the judgment.” Id. (citations omitted). The fail-safe class obtained
its label “‘because the class definition precludes the possibility of an adverse judgment against
class members; the class members either win or are not in the class.’” Id. (quoting Genebacher
v. CentruyTel Fiber Co. II, 244 F.R.D. 485, 488 (C.D. Ill. 2001)).
In the instant case, Defendant acknowledges that the Eighth Circuit has not yet ruled on
the propriety of a fail-safe class definition. Defendant relies on Lindsay Transmission, LLC v.
Office Depot, Inc., for the proposition that a fail-safe class is improper and should be striken at
the motion to dismiss stage. Id. at 4. However, the Court observes that, in a case decided after
Lindsay, another court in this district distinguished Lindsay based on facts similar to the present
case. St. Louis Heart Ctr., 2013 WL 1076540, at *6. In St. Louis Heart Center, the court noted
that Lindsay involved a motion to strike plaintiff’s class allegations “after limited discovery.” Id.
The court further noted that the defendant in Lindsay submitted declarations suggesting that the
unsolicited fax messages were an aberration instead of a blast faxing campaign. Id. As such, the
St. Louis Heart Center court denied defendant’s motion to dismiss or strike the class allegations
because, “unlike Lindsay, there is no factual basis for the court to find that the fax messages in
question were an aberration, part of a ‘blast faxing’ campaign, or something altogether
different.” Id. at *7.
The Court finds that dismissing the class allegations at this juncture is premature. 3
Contrary to Defendant’s assertions, Plaintiff does not concede that the alleged class is a fail-safe

3

Defendant also raises a claim that Plaintiff and the allegedly improperly defined class lack
standing; thus, the class allegations must be stricken. Now before this Court is a motion to
dismiss the complaint or, alternatively to dismiss or strike class allegations. The Court is not
entertaining a motion to certify the class and finds these issues better left for a fully briefed and
supported motion for class certification. See Chorosevic v. Metlife Choices, No. 4:05-CV-2394
CAS, 2007 WL 2159475, at *3-4 (E. D. Mo. July 26, 2007) (addressing standing at the motion
for class certification stage); but see Golan v. Veritas Entm’t, LLC, No. 4:14CV00069, 2014 WL
9

class, and, at the pleading stage, the Court is unable to discern from the face of the complaint
whether the alleged class is impermissible. 4 Thus, the Court will deny Defendant’s motion
dismiss or strike Plaintiff’s class allegations.
Also pending is an un-ruled Motion for Class Certification filed by Plaintiff in State
Court. The Court notes that the motion does not include “a memorandum in support of the
motion, including any relevant argument and citations to any authorities on which the party
relies” in accordance with Local Rule 4.01 of the Eastern District of Missouri. The Court will
therefore deny Plaintiff’s motion for class certification without prejudice. St. Louis Heart Ctr.,
Inc. v. Caremark, L.L.C., No. 4:12CV2151 TCM, 2013 WL 9988795, at *3-4 (E.D. Mo. April
19, 2013).
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss the Complaint, or, in
the Alternative, Dismiss or Strike the Class Allegations from the Complaint (ECF No. 9) is
DENIED.

2095310, at *13-15 (E.D. Mo. May 20, 2014) (dismissing a TCPA claim under Rule 12(b)(6) for
lack of standing after the parties submitted discovery).
4

While the Defendant argues that a fail-safe class is improper on its face, the Court agrees with
the St. Louis Heart Center court in that whether a fail-safe class is inherently problematic is
debatable within the federal circuits and has not been addressed by the Eighth Circuit. St. Louis
Heart Ctr., 2013 WL 1076540, at *6 n.7; see also In re Rodriguez, 695 F.3d 360, 370 (5th Cir.
2012) (rejecting the fail-safe prohibition); In re Autozone, Inc., Wage and Hour Emp’t Practices
Litig., 289 F.R.D. 526, (N.D. Cal. 2012) (noting that it is unclear whether the Ninth Circuit
forbids fail-safe classes). “Moreover, in the face of a ‘fail-safe class,’ district courts have broad
discretion to redefine the class in order to avoid issues that such a class definition may present.”
St. Louis Heart Ctr., 2013 WL 1076540, at *6 n.7.
10

IT IS FURTHER ORDERED that Plaintiff’s Motion for Class Certification, filed in
State Court (ECF No. 5), is DENIED.
Dated this 8th day of June, 2015.
_________________________________
RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

11