1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Lawrence E. Schwanke, No. CV-25-01759-PHX-DGC
10 Plaintiff, ORDER
11 v.
12 SimonMed Imaging LLC,
13 Defendant. 14 15 Plaintiff Lawrence E. Schwanke brought this lawsuit against Defendant SimonMed 16 Imaging LLC. Doc. 1. SimonMed moves to dismiss for failure to state a claim. Doc. 13. 17 The motion is fully briefed and no party requests oral argument. Docs. 13, 17, 20. For the 18 reasons stated below, the Court will deny the motion. 19 I. Background. 20 Schwanke is a chiropractor practicing out of Florida. Doc. 1 ¶¶ 9, 17. He uses a 21 fax machine in his practice. Id. ¶ 34. Between September 17, 2024, and January 24, 2025, 22 Schwanke received at least seven unsolicited faxes from SimonMed Imaging LLC. Id. 23 ¶¶ 3, 18. These faxes either communicated the commercial availability and pricing of 24 medical services offered by SimonMed or invited Schwanke to symposia that would 25 include information about SimonMed’s commercially offered services. Id. ¶¶ 22-32. 26 Schwanke did not request the faxes or give SimonMed permission to send them. Id. ¶ 33. 27 Nor did any of the faxes sent by SimonMed provide an opt-out notice giving Schwanke the 28 opportunity to decline future faxes. Id. ¶ 7. 1 Schwanke brings this class action alleging violations of the Telephone Consumer 2 Protection Act (TCPA). Id. ¶ 78. SimonMed moves to dismiss for failure to state a claim, 3 arguing the faxes were not “advertisements” under the governing law. Doc. 13. 4 II. Legal Standard. 5 Dismissal for failure to state a claim under Rule 12(b)(6) is appropriate when a 6 complaint lacks a cognizable legal theory or fails to allege facts sufficient to support its 7 theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A complaint 8 that sets forth a cognizable legal theory will survive a motion to dismiss if it contains 9 “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 10 face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 11 550 U.S. 544, 570 (2007)). A claim has facial plausibility when the plaintiff pleads “factual 12 content that allows the court to draw the reasonable inference that the defendant is liable 13 for the misconduct alleged.” Id. The Court treats all allegations of material fact in the 14 complaint as true and construes them in the light most favorable to Plaintiff. Cousins v. 15 Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). 16 The TCPA prohibits sending “an unsolicited advertisement” to a fax machine unless 17 there is “an established business relationship” between the sender and recipient, among 18 other conditions not relevant here. 47 U.S.C. § 227(b)(1)(C).1 The term “unsolicited 19 advertisement” means “any material advertising the commercial availability . . . of any 20 property, goods, or services” transmitted to the recipient without his invitation or 21 permission. Id. § 227(a)(5). “To be commercially available” under the TCPA, “a good or 22 service must be available to be bought or sold (or must be a pretext for advertising a product 23 that is so available).” N.B. Indus., Inc. v. Wells Fargo & Co., 465 F. App’x 640, 642 (9th 24 Cir. 2012). When faced with a TCPA claim, the Ninth Circuit has guided lower courts to 25
26 1 The TCPA additionally mandates that faxes provide “a cost-free mechanism for a 27 recipient to transmit a request” opting out of future unsolicited advertisements. See id. § 227(b)(2)(D). Schwanke alleges SimonMed violated this provision of the TCPA (Doc. 1 28 ¶¶ 63-64, 71), but this is not at issue in the motion to dismiss. 1 “approach the problem with a measure of common sense.” Chesbro v. Best Buy Stores, 2 L.P., 705 F.3d 913, 918 (9th Cir. 2012). 3 III. The Motion to Dismiss. 4 SimonMed does not dispute the faxes it sent Schwanke were “unsolicited” and that 5 there was no “established business relationship” between the parties. Instead, SimonMed 6 argues the faxes were not “advertisements” under the TCPA, where (1) the faxes inviting 7 Schwanke to the symposia were “informational communications” that merely sent 8 information on “topics of interest” to Schwanke, and (2) the faxes communicating the 9 commercial availability and pricing of SimonMed’s services were directed at Schwanke’s 10 patients, not Schwanke, and thus were not advertising to him. Doc. 13 at 6, 11-12. 11 A. The Symposia Faxes. 12 SimonMed relies on an interpretation by the Federal Communications Commission 13 (FCC) – the agency charged with interpreting the TCPA – to contend the faxes inviting 14 Schwanke to the symposia were not advertisements but “informational communications.” 15 Id. at 11. The FCC explained that a fax “contain[ing] only information, such as industry 16 news articles, legislative updates, or employee benefit information, would not be prohibited 17 by the TCPA rules.” Id. at 6-7 (quoting 71 Fed. Reg. 25967, 25974 (May 3, 2006)). 18 A district court “is not bound by the FCC’s interpretation of the TCPA,” but the 19 FCC interpretation does not support SimonMed even if the Court applies it. McLaughlin 20 Chiropractic Assocs., Inc. v. McKesson Corp., 606 U.S. 146, 168 (2025). The faxes 21 inviting Schwanke to the symposia did not “contain only information” about the symposia. 22 71 Fed. Reg. 25967, 25974. They also requested Schwanke’s attendance. See Docs. 1-1 23 at 2-3 (“Please join us for a Symposium”), 1-2 at 2 (same), 1-3 at 2 (same), 1-4 at 2 (“Please 24 join us for a premier gathering”), 1-5 at 2 (same). One fax even provided a promotional 25 code reducing the cost of attending the symposium. Doc. 1-4 at 2 (“[R]eceive a 25% 26 discount using coupon code EarlyBird22225”). By inviting and enticing Schwanke’s 27 attendance, the faxes went beyond containing “only information” and could be viewed as 28 a pretext for marketing SimonMed’s services and thus having a “commercial purpose.” 1 See Eric B. Fromer Chiropractic, Inc. v. Si-Bone, Inc., No. 19-CV-00633-LHK, 2019 WL 2 3577050, at *7 (N.D. Cal. Aug. 5, 2019) (finding a fax had a “commercial purpose” where 3 the plaintiff alleged “the Fax invited Plaintiff to an ‘educational dinner’ as a pretext for 4 Defendant to sell its products as ‘part of an overall marketing campaign for Defendants’ 5 [sic] goods and services’” (citation omitted)). 6 SimonMed attempts to analogize to the Ninth Circuit case N.B. Industries, Inc., 7 which can easily be distinguished. 465 F. App’x 640. In N.B. Industries, Inc., the fax 8 invited the recipient to a conference presenting a “Leadership Award,” which was not 9 “available for sale” and thus not “commercially available.” See id. at 642. Here, the faxes 10 invited Schwanke to symposia where SimonMed presented on its services, which were 11 “available for sale” and thus “commercially available.” See Doc. 17 at 7, 10-11. Unlike 12 N.B. Industries, the faxes inviting Schwanke can reasonably be viewed as a pretext for 13 advertising SimonMed’s medical services. See N.B. Indus., Inc., 465 F. App’x at 642 14 (explaining a fax violates the TCPA when it is “a pretext for advertising” the “commercial 15 availability” of a product or service).
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Lawrence E. Schwanke, No. CV-25-01759-PHX-DGC
10 Plaintiff, ORDER
11 v.
12 SimonMed Imaging LLC,
13 Defendant. 14 15 Plaintiff Lawrence E. Schwanke brought this lawsuit against Defendant SimonMed 16 Imaging LLC. Doc. 1. SimonMed moves to dismiss for failure to state a claim. Doc. 13. 17 The motion is fully briefed and no party requests oral argument. Docs. 13, 17, 20. For the 18 reasons stated below, the Court will deny the motion. 19 I. Background. 20 Schwanke is a chiropractor practicing out of Florida. Doc. 1 ¶¶ 9, 17. He uses a 21 fax machine in his practice. Id. ¶ 34. Between September 17, 2024, and January 24, 2025, 22 Schwanke received at least seven unsolicited faxes from SimonMed Imaging LLC. Id. 23 ¶¶ 3, 18. These faxes either communicated the commercial availability and pricing of 24 medical services offered by SimonMed or invited Schwanke to symposia that would 25 include information about SimonMed’s commercially offered services. Id. ¶¶ 22-32. 26 Schwanke did not request the faxes or give SimonMed permission to send them. Id. ¶ 33. 27 Nor did any of the faxes sent by SimonMed provide an opt-out notice giving Schwanke the 28 opportunity to decline future faxes. Id. ¶ 7. 1 Schwanke brings this class action alleging violations of the Telephone Consumer 2 Protection Act (TCPA). Id. ¶ 78. SimonMed moves to dismiss for failure to state a claim, 3 arguing the faxes were not “advertisements” under the governing law. Doc. 13. 4 II. Legal Standard. 5 Dismissal for failure to state a claim under Rule 12(b)(6) is appropriate when a 6 complaint lacks a cognizable legal theory or fails to allege facts sufficient to support its 7 theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A complaint 8 that sets forth a cognizable legal theory will survive a motion to dismiss if it contains 9 “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 10 face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 11 550 U.S. 544, 570 (2007)). A claim has facial plausibility when the plaintiff pleads “factual 12 content that allows the court to draw the reasonable inference that the defendant is liable 13 for the misconduct alleged.” Id. The Court treats all allegations of material fact in the 14 complaint as true and construes them in the light most favorable to Plaintiff. Cousins v. 15 Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). 16 The TCPA prohibits sending “an unsolicited advertisement” to a fax machine unless 17 there is “an established business relationship” between the sender and recipient, among 18 other conditions not relevant here. 47 U.S.C. § 227(b)(1)(C).1 The term “unsolicited 19 advertisement” means “any material advertising the commercial availability . . . of any 20 property, goods, or services” transmitted to the recipient without his invitation or 21 permission. Id. § 227(a)(5). “To be commercially available” under the TCPA, “a good or 22 service must be available to be bought or sold (or must be a pretext for advertising a product 23 that is so available).” N.B. Indus., Inc. v. Wells Fargo & Co., 465 F. App’x 640, 642 (9th 24 Cir. 2012). When faced with a TCPA claim, the Ninth Circuit has guided lower courts to 25
26 1 The TCPA additionally mandates that faxes provide “a cost-free mechanism for a 27 recipient to transmit a request” opting out of future unsolicited advertisements. See id. § 227(b)(2)(D). Schwanke alleges SimonMed violated this provision of the TCPA (Doc. 1 28 ¶¶ 63-64, 71), but this is not at issue in the motion to dismiss. 1 “approach the problem with a measure of common sense.” Chesbro v. Best Buy Stores, 2 L.P., 705 F.3d 913, 918 (9th Cir. 2012). 3 III. The Motion to Dismiss. 4 SimonMed does not dispute the faxes it sent Schwanke were “unsolicited” and that 5 there was no “established business relationship” between the parties. Instead, SimonMed 6 argues the faxes were not “advertisements” under the TCPA, where (1) the faxes inviting 7 Schwanke to the symposia were “informational communications” that merely sent 8 information on “topics of interest” to Schwanke, and (2) the faxes communicating the 9 commercial availability and pricing of SimonMed’s services were directed at Schwanke’s 10 patients, not Schwanke, and thus were not advertising to him. Doc. 13 at 6, 11-12. 11 A. The Symposia Faxes. 12 SimonMed relies on an interpretation by the Federal Communications Commission 13 (FCC) – the agency charged with interpreting the TCPA – to contend the faxes inviting 14 Schwanke to the symposia were not advertisements but “informational communications.” 15 Id. at 11. The FCC explained that a fax “contain[ing] only information, such as industry 16 news articles, legislative updates, or employee benefit information, would not be prohibited 17 by the TCPA rules.” Id. at 6-7 (quoting 71 Fed. Reg. 25967, 25974 (May 3, 2006)). 18 A district court “is not bound by the FCC’s interpretation of the TCPA,” but the 19 FCC interpretation does not support SimonMed even if the Court applies it. McLaughlin 20 Chiropractic Assocs., Inc. v. McKesson Corp., 606 U.S. 146, 168 (2025). The faxes 21 inviting Schwanke to the symposia did not “contain only information” about the symposia. 22 71 Fed. Reg. 25967, 25974. They also requested Schwanke’s attendance. See Docs. 1-1 23 at 2-3 (“Please join us for a Symposium”), 1-2 at 2 (same), 1-3 at 2 (same), 1-4 at 2 (“Please 24 join us for a premier gathering”), 1-5 at 2 (same). One fax even provided a promotional 25 code reducing the cost of attending the symposium. Doc. 1-4 at 2 (“[R]eceive a 25% 26 discount using coupon code EarlyBird22225”). By inviting and enticing Schwanke’s 27 attendance, the faxes went beyond containing “only information” and could be viewed as 28 a pretext for marketing SimonMed’s services and thus having a “commercial purpose.” 1 See Eric B. Fromer Chiropractic, Inc. v. Si-Bone, Inc., No. 19-CV-00633-LHK, 2019 WL 2 3577050, at *7 (N.D. Cal. Aug. 5, 2019) (finding a fax had a “commercial purpose” where 3 the plaintiff alleged “the Fax invited Plaintiff to an ‘educational dinner’ as a pretext for 4 Defendant to sell its products as ‘part of an overall marketing campaign for Defendants’ 5 [sic] goods and services’” (citation omitted)). 6 SimonMed attempts to analogize to the Ninth Circuit case N.B. Industries, Inc., 7 which can easily be distinguished. 465 F. App’x 640. In N.B. Industries, Inc., the fax 8 invited the recipient to a conference presenting a “Leadership Award,” which was not 9 “available for sale” and thus not “commercially available.” See id. at 642. Here, the faxes 10 invited Schwanke to symposia where SimonMed presented on its services, which were 11 “available for sale” and thus “commercially available.” See Doc. 17 at 7, 10-11. Unlike 12 N.B. Industries, the faxes inviting Schwanke can reasonably be viewed as a pretext for 13 advertising SimonMed’s medical services. See N.B. Indus., Inc., 465 F. App’x at 642 14 (explaining a fax violates the TCPA when it is “a pretext for advertising” the “commercial 15 availability” of a product or service). Under the Rule 12(b)(6) standard, Schwanke has 16 alleged facts sufficient for the Court reasonably to infer the faxes inviting Schwanke to the 17 symposia satisfy the “unsolicited advertisement” standard set forth by the Ninth Circuit. 18 See id. at 642.2 19 B. The Medical Services Faxes. 20 Turning to the faxes communicating the commercial availability and special pricing 21 of SimonMed’s medical services, SimonMed argues that “[b]ecause the faxes are not 22 attempting to solicit the recipient [Schwanke] into making a purchase, they are not 23 unlawful advertisements under the TCPA.” Doc. 13 at 11. SimonMed relies on a standard 24 set forth by the Third Circuit. See Doc. 13 at 6 (arguing “the fax must convey the 25 impression to its recipient that a seller is trying to make a sale to him” (quoting Mauthe v.
26 2 SimonMed additionally relies on interpretations of the TCPA by other circuits. See, e.g., Doc. 13 at 7 (arguing “[t]he possibility that future economic benefits will flow from a non- 27 commercial fax, ancillary to the content of the fax, is legally irrelevant to determining whether the fax is an ad” (quoting Sandusky Wellness Ctr., LLC v. Medco Health Sols., 28 Inc., 788 F.3d 218, 225 (6th Cir. 2015))). The Court will not rely on this out-of-circuit precedent. 1 Nat’l Imaging Assocs., Inc., 767 F. App’x 246, 249 (3d Cir. 2019))). But the TCPA does 2 not require a fax to solicit the recipient to make a purchase. Nor does it require a fax to 3 solicit an appropriate recipient, as suggested by SimonMed. See Doc. 20 at 8 (“Plaintiff 4 has not, and cannot, allege that faxes about mammograms and cardiovascular imaging sent 5 to a chiropractor’s office would result in some benefit to SimonMed.”). The TCPA 6 requires a fax to “advertis[e] the commercial availability” of a product, good, or service. 7 47 U.S.C. § 227(a)(5). 8 The faxes in this case advertised both the special pricing and commercial 9 availability of SimonMed’s services. See Docs. 1-1 at 2-3 (“SimonMed is offering $99 3D 10 Screening Mammograms”), 1-6 at 2 (“360-Degree analysis of . . . heart attack risk for 11 $350!”; “SimonMed Florida Locations: Special Pricing All Month!”; “SPECIAL 12 FEBRUARY PRICING!”; “LIFESAVING CCTA EXAMS NOW AVAILABLE FOR 13 ONLY $360!”; “[W]e are offering patients $360 CCTA Exams throughout the entire month 14 of February!”), 1-7 at 2-3 (“February Special $50”; “SELF PAY PRICE $50”; “Same Day 15 & Next Day Appointments for 3D Screening Mammograms”; “Extended hours and 16 weekend appointments available in some locations”). These faxes “advertise the 17 commercial availability” of SimonMed’s services to Schwanke and thus constitute 18 “advertisements” under the TCPA. 47 U.S.C. § 227(a)(5). 19 Applying “a measure of common sense” as instructed by the Ninth Circuit, Chesbro, 20 705 F.3d at 918, confirms this result. SimonMed’s faxes quite clearly sought to solicit his 21 patients’ business through procuring Schwanke’s endorsement. See Eric B. Fromer 22 Chiropractic, Inc., 2019 WL 3577050, at *6 (finding a fax had a “commercial purpose” 23 where “[t]he Fax was also sent to Plaintiff, a chiropractic corporation, which could inform 24 patients with SI joint pain about Defendant’s products”). Schwanke has alleged sufficient 25 facts for the Court reasonably to infer the faxes were “unsolicited advertisements” under 26 the TCPA. 47 U.S.C. § 227(a)(5). The Court will deny the motion to dismiss. 27 / / / 28 / / / 1 IT IS ORDERED that Defendant’s motion to dismiss (Doc. 13) is denied. The || Court will set a case management conference by separate order. 3 Dated this 27th day of October, 2025. 4 Saul 6 Cou Gurrk 0. phth
. David G. Campbell Senior United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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