Comprehensive Health Care Systems of Palm Beaches, Inc. v. Vitaminerals VM/Orthopedics, Ltd. et al

Filing 58

Memorandum Opinion and Order: Hygenic's Motion to Dismiss (Doc. #45 ) pursuant to Rule 12(b)(1) is DENIED; its Motion to Dismiss pursuant to Rule 12(b)(6) is GRANTED. Magistrate Judge Kathleen B. Burke on 1/3/2017.(D,I)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

COMPREHENSIVE HEALTH CARE
SYSTEMS OF PALM BEACHES, INC.,
Individually and as the representative of a
class of similarly situated persons,
Plaintiff,
v.
VITAMINERALS VM/ORTHOPEDICS,
LTD., et al.,
Defendants.

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CASE NO. 5:16CV2183

MAGISTRATE JUDGE
KATHLEEN B. BURKE

MEMORANDUM OPINION & ORDER

Plaintiff Comprehensive Health Care Systems of Palm Beaches, Inc. (“Plaintiff”) brings
this alleged class action under the Telephone Consumer Protection Act, 47 U.S.C. § 227,1 based
on its receipt of two unsolicited faxes, copies of which are attached to the Amended Class Action
Complaint as Exhibits A and B. Docs. 43-1 and 43-2. The faxes urge the recipient to purchase
products listed in the faxes from Defendant Vitaminerals (“Vitaminerals” or “VM”) and they
provide contact information for Vitaminerals. BioFreeze, a product manufactured by Defendant
Hygenic Corporation (“Hygenic”), is prominently featured in the faxes, although other types of
healthcare products sold by Vitaminerals are also listed.
Hygenic has filed a Motion to Dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Doc.
45. The Motion has been fully briefed.2 The issue raised by Hygenic’s Rule12(b)(6) Motion is
whether the Amended Complaint sufficiently states a claim pursuant to which Hygenic may be
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Plaintiff also alleges a state law claim for conversion bases on the same alleged facts.

2

Plaintiff filed a response (Doc. 53) and Hygenic replied (Doc. 56).

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held liable under the TCPA as a “sender” of the faxes despite the absence of any factual
allegations indicating that it either transmitted the faxes, authorized Vitaminerals to do so, or
even knew of the faxes. In other words, the issue is whether the TCPA imposes strict liability on
a manufacturer whose product is featured in an unsolicited fax despite the lack of any
involvement by the manufacturer in the transmittal of the fax. For the reasons explained below,
the Court holds that the TCPA does not impose such liability. The Court DENIES Hygenic’s
motion under Rule 12(b)(1) but GRANTS Hygenic’s motion under Rule 12(b)(6).
I. Background
BioFreeze is a topical analgesic manufactured by Hygenic. Doc. 45-1, p. 5 (Hygenic’s
motion). Plaintiff received two one-page fax advertisements, one on October 2015 and one on
January 2016, that urged Plaintiff to contact “Bud Boote’s VM Medical/Vitaminerals” to
purchase BioFreeze at a discounted price. Doc. 43, pp. 3-4, ¶15-19 (Amended Complaint);
Docs. 43-1, 43-2 (advertisements); Doc. 45-1, p. 5. The faxes also listed other products VM had
for sale. Docs. 43-1, 43-2. Plaintiff “did not expressly invite or give permission to anyone to
send” the faxes. Doc. 43, ¶21.
Plaintiff, a Florida corporation, originally filed this suit in the Southern District of
Florida. Doc. 1. Hygenic filed a Motion to Dismiss, arguing that Plaintiff failed to allege facts
sufficient to establish personal jurisdiction over Hygenic in Florida and, in the alternative, a
motion to transfer venue to the Northern District of Ohio—Hygenic’s principal place of business
is in Ohio and VM is an Ohio corporation. Docs. 19-1, ¶2; 47, ¶6. Plaintiff filed a motion for
leave to file an amended complaint to cure deficiencies in the complaint identified by Hygenic
and a notice stating that it did not oppose a transfer to the Northern District of Ohio. Docs. 26,
28. The case was transferred to the Northern District of Ohio on August 31, 2016. Doc. 31.

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Thereafter, Plaintiff filed a renewed Motion for Leave to File First Amended Class
Action Complaint. Tr. 42. It asserted that Hygenic’s prior motion to dismiss argued that
Plaintiff had not alleged sufficient facts to establish TCPA liability, and that, “Consequently,
Plaintiff’s proposed First Amended Class Action Complaint adds allegations that Hygenic is a
sender of the faxes at issue because its products are advertised or promoted in the advertisement,
and that Hygenic, as the manufacturer of BioFreeze, benefits from the promotion and sale of its
products.” Doc. 42, p. 2, ¶10. This Court granted Plaintiff’s motion and Plaintiff filed its
Amended Class Action Complaint. Doc. 43. The Amended Complaint alleges that VM and
Hygenic are each liable under the TCPA because: they sent the faxes, caused the faxes to be sent,
participated in the activity giving rise to or constituting the violation, the faxes were sent on
Hygenic’s behalf, or under general principles of vicarious liability, including actual authority,
apparent authority, and ratification. Id., ¶¶ 54-55. It alleges that VM benefitted from the
advertisements because the advertisements were “marketing endeavors to increase its sales and
profits” and that Hygenic benefitted from the advertisements because the advertisements
promoted BioFreeze products and, as the manufacturer of BioFreeze, Hygenic profits from the
sale of BioFreeze products. Id., ¶¶ 56-57. Plaintiff also maintained its claim against Defendants
for conversion.3 Id., pp. 15-16.
Hygenic’s Motion to Dismiss under Fed. R. Civ. P. 12(b)(1) and (b)(6) argues that
Plaintiff lacks standing to bring this case; fails to allege that Hygenic is a “sender” under the
TCPA; and fails to state a claim that Hygenic is liable for conversion.
II. Legal Standard
A. 12(b)(1) standard

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Plaintiff does not identify the source of its conversion claim, i.e., whether it is based on Ohio law or Florida law.
3

Although not entirely clear, it appears that the portion of Hygenic’s motion asserted
under Rule 12(b)(1) pertains to the issue of standing. See Kal Kan Foods, Inc. v. Iams Co., 197
F.Supp.2d 1061, 1065-1069 (S.D.Ohio 2002) (explaining that the issue of standing is properly
considered by a court at the pleading stage in a Rule 12(b)(1) motion challenging the court’s
subject matter jurisdiction). To establish Article III standing, a plaintiff must demonstrate: (1) it
has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent,
not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the
defendant; and (3) it is likely, as opposed to speculative, that the injury will be redressed by a
favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992). At the
pleading stage, “general factual allegations of injury resulting from the defendant’s conduct may
suffice,” because the court “presume[s] that general allegations embrace those specific facts that
are necessary to support the claim.” Id. at 561.
B. 12(b)(6) standard
To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient
factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S.662, 678 (2009)
(clarifying the plausibility standard articulated in Twombly). “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.” Id. (citing Twombly, 550 U.S. at 556).
The factual allegations of a pleading must be enough to raise a right to relief above the
speculative level. Twombly, 550 U.S. at 555. The Court must accept all well-pleaded factual
allegations as true but need not “accept as true a legal conclusion couched as a factual
allegation.” Id. “Plaintiff’s obligation to provide the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
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will not do.” Id. (internal quotation marks omitted). In addition to reviewing the claims set forth
in the complaint, a court may also consider exhibits, public records, and items appearing in the
record of the case as long as the items are referenced in the complaint and are central to the
claims contained therein. Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir.
2008).
“Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a ‘short and
plain statement of the claim showing that the pleader is entitled to relief.’” Iqbal, 556 U.S. at
677 (quoting Fed. R. Civ. P. 8(a)(2)). A defendant is entitled to “fair notice of what the . . .
claim is and the ground upon which it rests.” Twombly, 550 U.S. at 570 (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). While great detail is not required, “[f]actual allegations must
be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555; see
also Whittiker v. Deutsche Bank Nat’l Trust Co., 605 F.Supp.2d 914, 924–25 (N.D. Ohio 2009)
(citing and relying on Tucker v. Middleburg-Legacy Place, 539 F.3d 545, 550 (6th Cir. 2008)
and Erickson v. Pardus, 551 U.S. 89 (2007) for the proposition that specific facts are not
necessary)).
III. Analysis
A. Plaintiff has standing to sue under the TCPA
The TCPA “prohibits the use of ‘any telephone facsimile machine, computer, or other
device to send, to a telephone facsimile machine, an unsolicited advertisement,’ unless the
sender and recipient have ‘an established business relationship,’ the recipient voluntarily made
its fax number available, and the unsolicited fax contains a notice meeting certain statutory and
regulatory requirements.” Bridging Cmtys., Inc. v. Top Flite Fin., Inc.,—F.3d—, 2016 WL
7241401, at *1 (6th Cir. Dec. 15, 2016) (quoting 47 U.S.C. § 227(b)(1)(C), (b)(2)(D); 47 C.F.R.
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§ 64.1200(a)(4)). The statute creates a private right of action for a plaintiff to enjoin a TCPA
violation and/or recover money lost as a result of the violation or $500 per violation, whichever
is greater. Id. (citing 47 U.S.C. § 227(b)(3)). Treble damages are available if the TCPA
violation was willful or knowing. Id.
Hygenic argues that Plaintiff does not have standing to bring its claims against Hygenic
because it does not allege facts sufficient to show that its injury is “fairly traceable to the
challenged action” of Hygenic. Doc. 45-1, p. 14 (quoting Lujan, 504 U.S. at 560). The question
of standing, however, is concerned with whether Plaintiff has alleged sufficient injury to bring
this lawsuit, which it has done, see Imhoff Investment, L.L.C., v. Alfoccino, Inc., 792 F.3d 627,
631-634 (6th Cir. 2015),4 and not whether the allegations in the Amended Complaint against
Hygenic meet the pleading requirements of Fed. R. Civ. P. 8, which is the focus of Hygenic’s
argument. In the Amended Complaint, Plaintiff alleges facts demonstrating that its injury is
fairly traceable to the challenged action of Hygenic sufficient to establish Article III standing in
this Court. See Lujan, 504 U.S. at 561 (“[G]eneral factual allegations of injury resulting from the
defendant’s conduct may suffice” because the court “presume[s] that general allegations embrace
those specific facts that are necessary to support the claim.”). What Hygenic disputes is the
sufficiency of the allegations in the Amended Complaint against it as a “sender” liable under the
TCPA. The Court considers Hygenic’s insufficient pleading arguments in the context of its
12(b)(6) motion, discussed below. Hygenic’s motion to dismiss pursuant to Rule 12(b)(1) based
on standing, therefore, is denied.
B. Plaintiff fails to state a claim against Hygenic under the TCPA because it does
not sufficiently allege that Hygenic is a “sender” of the faxes

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The Imhoff Court found that a plaintiff suffers an injury sufficient for Article III standing when it receives
unsolicited fax advertisements. 792 F.3d at 633.
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The TCPA creates liability in the sender of improper, unsolicited fax advertisements. 47
U.S.C. § 227(b)(1)(C).5 The regulations promulgated by the Federal Communications
Commission (“FCC”) defines the “sender” of a fax advertisement as “the person or entity on
whose behalf a facsimile unsolicited advertisement is sent or whose goods or services are
advertised or promoted in the unsolicited advertisement.” 47 C.F.R. § 64.1200(f)(10). The
regulations also define a “broadcaster” as “a person or entity that transmits messages to
telephone facsimile machines on behalf of another person or entity for a fee.” § 64.1200 (f)(7).
In its Amended Complaint, Plaintiff alleges generally that Defendants violated the TCPA.
Specifically, it asserts that Hygenic (as well as VM) is liable under the TCPA because it “sent the
faxes, caused the faxes to be sent, participated in the activity giving rise to or constituting the
violation, the faxes were sent on its behalf, it is a sender of the fax advertisements because its
goods or products are promoted in the faxes, or under general principles of vicarious liability,
including actual authority, apparent authority, and ratification.” Doc. 43, ¶ 55. It alleges that
Hygenic benefitted from the advertisements because the ads promoted its product, BioFreeze.
Id., ¶ 57.
Hygenic submits that these allegations are insufficient to state a claim that Hygenic is
liable under the TCPA because the Amended Complaint generically lumps all Defendants
together and because the only allegations made specifically against Hygenic are merely
conclusory allegations and statutory quotations. Doc. 45-1, p. 10. It asserts, “Plaintiff’s only
factually-supported theory of liability is this: because Hygenic manufactured BioFreeze® topical
analgesic, it is therefore responsible for the transmission of any fax bearing a picture of that
product, regardless of whether it participated in, approved of, or was even aware of such faxes.”

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“It shall be 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).
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Id. It states that this “sweeping theory of liability has been rejected by federal courts
nationwide” and should be rejected by this Court. Id.
Plaintiff retorts that the fact that VM sells BioFreeze creates a “reasonable inference” that
VM and Hygenic have a business relationship and that, in any event, the TCPA imposes strict
liability on the entity whose goods and services are advertised in an improperly sent fax. Doc.
53, pp. 12-13. In support of its contention, Plaintiff relies on two Sixth Circuit published cases,
Siding and Insulation Co. v. Alco Vending, Inc., 822 F.2d 886 (6th Cir. 2016), and Imhoff
Investment, supra, 792 F.3d 627. Id., pp. 12-15. The facts in those cases, however, are not
analogous to the facts in this case and do not support the conclusion that Plaintiff advocates.
In Siding, the defendant company, Alco, sold and stocked vending machines. It paid a
company called B2B to send out fax advertisements to potential customers. 822 F.3d at 888-889.
B2B was in the business of transmitting fax advertisements for paying customers, i.e., it was a
“broadcaster” as defined in the regulations.6 Id. The plaintiffs, recipients of the faxes, filed suit
against Alco alleging a violation of the TCPA. The Sixth Circuit reversed the district court’s
grant of summary judgment to Alco, finding that Alco could face liability under the TCPA
because B2B transmitted the faxes on Alco’s behalf. The court applied the “on-whose-behalf”
analysis that governed at the time the faxes were sent, in 2005 and early 2006. Id. at 897-898.
The court explained that, in August 2006, the FCC modified the definition of “sender” to read
not just the entity on whose behalf the faxes were sent, but to also include the entity whose goods
or services are advertised or promoted in the advertisement. Id. The court noted that, per the
regulations, the entity on whose behalf the advertisement is sent “[i]n most instances [] will be

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B2B is a “fax-blaster,” a company that procures a wide range of clients and faxes those client’s advertisements to
thousands of fax numbers. See Bridging Comts.,—F.3d—, 2016 WL 7241401, at *1.
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the entity whose product or service is advertised or promoted in the message.” Id., at 893
(emphasis in original) (quoting Junk Fax Regulations, 21 FCC Rcd. 3787, 3808 (2006)).
In Imhoff, the defendant restaurant paid B2B (the same broadcaster company involved in
Siding), to send out fax advertisements. 792 F.3d at 629-630. While B2B sent some faxes to
recipients who had consented to receive them, it sent other faxes to recipients who had not
consented to receive them. The non-consenting recipients filed a complaint alleging that the
restaurant violated the TCPA. The question before the court was whether the restaurant could be
a “sender” and, therefore, liable under the TCPA for the faxes that B2B, the broadcaster,
transmitted. Id. at 634-635. The court reasoned that the restaurant was directly liable because it
was a “sender” of the faxes, its goods and services having been advertised or promoted in the
unsolicited advertisement. Id. It rejected the restaurant’s argument that the “sender” could only
be the entity that actually transmitted the fax, i.e., the broadcaster. Id. at 637.
This case does not involve B2B or another, similar broadcaster company that is paid by a
defendant to engage in widespread “fax-blasting.” Plaintiff does not allege that VM is a
“broadcaster” as that term is defined in the regulations. It does not allege that Hygenic paid VM
to send fax advertisements on Hygenic’s behalf, as was the case in Imhoff and Siding. See 47 §
C.F.R. § 64.1200(f)(10) (“sender ... means the person or entity on whose behalf a facsimile
unsolicited advertisement is sent”). And, although Hygenic’s BioFreeze products appear in
VM’s advertisement, VM’s faxes, which are attached to the Amended Complaint,7 make clear
that the goods and services being advertised are those of VM. See id. (“sender” ... means the
person or entity ... whose goods or services are advertised or promoted in the unsolicited
advertisement.”). VM’s faxes urge the recipient who wishes to purchase BioFreeze at a special
7

Plaintiff attached two fax advertisements it received to its Amended Complaint and to its opposition brief. Doc.
43, ¶16; 43-1; 43-2; 52, pp. 8, 9. The Court may consider these advertisements because they were referenced in
Plaintiff’s Amended Complaint and are central to its claims. See Bassett, 528 F.3d at 430.
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price to contact VM (“Bud Boote’s VM Medical/Vitaminerals”); they include VM’s Ohio
address and its toll-free number;8 and they list healthcare products not manufactured by Hygenic
that VM purports to sell, such as TENS machines, vitaminerals, hot/cold packs, orthopedic
supports, cervical pillows, and another product called “Sombra.” Docs. 43-1, 43-2. Thus, the
faxes hold out VM as a seller of products, i.e., its goods and services are advertised and
promoted. In short, VM, as alleged in the Amended Complaint, fits the bill of “sender” as that
term is defined in 47 § C.F.R. § 64.1200(f)(10).
Plaintiff contends that Hygenic is also a “sender” per the regulations because Hygenic
manufactures BioFreeze. It argues that such an interpretation of the word “sender” was endorsed
in Imhoff and Siding. Doc. 53, pp. 14-15. The Court disagrees. The Imhoff and Siding courts
did not consider the factual scenario in this case and neither case directs a finding in favor of
Plaintiff on these facts. Indeed, such a result would be absurd. In the context of Siding, for
instance, it would be akin to a court finding that the vending machine company’s advertisement
creates TCPA liability for the soft drink companies whose drinks are sold in the vending
machines and are promoted in the ads because the soft drink companies manufacture the drinks
and benefit when customers buy their products. If this were the case, TCPA liability would
automatically attach to any manufacturer or distributor of any product promoted in an improperly
sent fax advertisement. The history and the language of the TCPA and the pertinent regulations
do not create such liability; nor does binding case law or common sense. If such a broad reading
of Plaintiff’s definition of “sender” were applied by courts, entities could engage in “sabotage
liability”:
By way of illustration, it would allow a rabid Tampa Bay Buccaneers fan—with a rhino
helmet, red face paint, and an undying devotion to the organization—to trigger per se
liability for the organization under the TCPA by gratuitously, and without directive from
8

The faxes contain no contact information for Hygenic.
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or notice to the organization, promoting season ticket sales via fax. The same could be
true of a random individual in Boston, mind brewing with scienter, who works to
implicate the New York Yankees by advertising their season tickets.[] Universal liability
for complete inaction was not contemplated by Congress in passing the TCPA and does
not appear to have been contemplated by the FCC in crafting and interpreting its
regulations.
Cin-Q Autos., Inc. v. Buccaneers Ltd. P’ship, 2014 WL 7224943, at *6 (M.D. Fla., Dec. 17,
2014). See also Bais Yaakov v. Varitronics, LLC, 2015 WL 1529279, at *4-5 (D. Minn. April 3,
2015) (holding that the complaint failed to state a claim of TCPA liability when the fax
advertisements merely promoted the defendant’s products).9
In short, Plaintiff fails to allege that Hygenic is a “sender” as that term is defined by the
regulations and fails to identify legal authority that would create TCPA liability in Hygenic
under the facts alleged in the Amended Complaint. Instead, the Amended Complaint simply
attempts to piggyback off VM’s status as a “sender” and Hygenic’s status as a manufacturer
without any further factual allegations that would make Hygenic liable as a sender. See
Twombly, 550 U.S. at 555 (courts need not accept as true legal conclusions couched as factual
allegations and a formulaic recitation of the elements of a cause of action will not suffice). The
fact that VM promoted Hygenic’s products, without more, does not make Hygenic liable under
the TCPA.
Plaintiff submits that, if the Court is inclined to grant Hygenic’s motion, it should do so
without prejudice “and provide Plaintiff an opportunity to amend the complaint in order to cure
any deficiencies.” Doc. 53, p. 11. This request is denied. The Amended Complaint is Plaintiff’s

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The court in Bais Yaakov found that the plaintiff stated a claim for relief against the defendant based on the “onwhose-behalf” definition of “sender” because the complaint contained allegations supporting such a theory: the
defendant’s products are only sold through authorized dealers, the authorized dealer who transmitted the fax is the
only authorized dealer of the defendant’s products, and the defendant authorized the dealer to use its trade name and
mark on its advertising on behalf of the defendant “only in the matter [sic] authorized by [the defendant].” 2015 WL
1529279, at *5. The Plaintiff’s Amended Complaint in this case contains no similar allegations.
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second complaint in this lawsuit and its third against VM and Hygenic overall.10 It has failed to
allege allegations sufficient to maintain a TCPA claim against Hygenic because it apparently
lacks sufficient factual support for such a claim, not because it did not artfully plead. Dismissal,
based on the facts alleged, is with prejudice. If, however, Plaintiff learns of facts through
discovery that would give rise to liability against Hygenic consistent with this Order (e.g., a
business relationship between Hygenic and VM as discussed in footnote 9, supra), Plaintiff may
seek leave of Court to file a Second Amended Complaint.11
C. Plaintiff fails to state a claim against Hygenic for conversion
Plaintiff’s Amended Complaint includes a claim for conversion. Doc. 43, pp. 15-16. It
alleges,
By sending advertisements to their fax machines, Defendants improperly and unlawfully
converted the class’s fax machines to Defendants’ own use. Where printed (as in
Plaintiff’s case), Defendants also improperly and unlawfully converted the class
members’ paper and toner to Defendants’ own use. Defendants also converted Plaintiff’s
time to Defendants’ own use, as they did with the valuable time of the other class
members.
Id., p. 15, ¶ 62. Plaintiff does not identify any legal support for this claim.
Hygenic argues that, as with the TCPA claim, Plaintiff fails to allege factual allegations
sufficient to support a conversion claim against Hygenic, under either Ohio state law or Florida
state law. Doc. 45-1, p. 13. Plaintiff disagrees; it states that it alleged that the faxes were sent by
Hygenic “under general principles of vicarious liability, or actual authority.” Doc. 53, p. 17
(citing ¶55 of the Amended Complaint).
First, the paragraph Plaintiff cites to for this purported allegation is in the TCPA claim set
forth in its Amended Complaint, not in the conversion claim. Moreover, Plaintiff’s conversion
10

Plaintiff filed its first lawsuit against VM and Hygenic in the Southern District of Florida on June 1, 2016. See
Comprehensive Health Care Systems, Inc. v. Vitaminerals VM/Orthopedics, Ltd., et al., Case No. 9:16-cv-80889. It
voluntarily dismissed the case on June 10, 2016. Id., Docs. 5, 6.

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Any such motion for leave to amend must adhere to the Case Management Order, Doc. 52.
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claim against Hygenic (referred to in the conversion claim collectively as “Defendants”) fails for
the same reasons its TCPA claim fails. The elements of a conversion claim in Ohio are: 1)
plaintiff’s ownership or right to possession of the property at the time of the conversion; 2)
defendant’s conversion by a wrongful act or disposition of plaintiff’s property rights; and 3)
damages. See NPF IV, Inc., et al. v. Transitional Health Servs., et al., 922 F.Supp. 77, 81 (S.D.
Ohio 1996). In Florida, conversion is “[a]n act of dominion wrongfully asserted over another’s
property inconsistent with [its] ownership therein.” See Special Purpose Accounts Receivable
Co-op Corp. v. Prime One Capital Co., 125 F.Supp.2d 1092, 1099 (S.D. Fla. 2000). Both states’
laws, therefore, require an intentional or wrongful act on the part of the defendant and Plaintiff
has failed to allege that Hygenic committed an intentional or wrongful act. Accordingly,
Plaintiff has failed to state a claim for conversion against Hygenic under either Ohio or Florida
law. This claim is dismissed.
III. Conclusion
For the reasons stated above, Hygenic’s Motion to Dismiss (Doc. 45) pursuant to Rule
12(b)(1) is DENIED; its Motion to Dismiss pursuant to Rule 12(b)(6) is GRANTED.

IT IS SO ORDERED.

Dated: January 3, 2017
Kathleen B. Burke
United States Magistrate Judge

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