United States District Court, N.D. Ohio, Eastern Division
C. NUGET, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on the Motion of Defendant
Adv-Care Pharmacy, Inc. ("Adv-Care") to Dismiss for
lack of personal jurisdiction and lack of standing pursuant
to Rules 12(b)(2) and 12(b)(1). (ECF #10). For the reasons
discussed below, Defendant's Motion to Dismiss is denied.
and Factual Background
Advanced Dermatology filed this action on February 7, 2017
against Defendant Adv-Care, on behalf of itself and a
purported nationwide class, asserting a single claim for
violation of the Telephone Consumer Protection Act, 47 U.S.C.
§ 227 ("TPCA"). Plaintiffs Complaint contains
the following averments:
2. Defendant is a Canadian Corporation.
3. Defendant sells pharmaceutical drugs into the United
States and solicits medical offices 'targeting
medications in your medical field" asking that the
information be passed on to patients.
4. Plaintiff is a resident of Ohio who received an
unsolicited facsimile from Defendant on its office fax
machine without consent.
7. On or about September 29, 2016, Plaintiff received a
facsimile on its fax machine from Defendant.
8. The form fax was two pages and stated it was from:
9. The fax, attached hereto as Ex. 1, solicited the Plaintiff
to provide Adv-Care info to its patients.
10. Plaintiff had no business relationship with Defendant,
did not give Defendant its number, and had not consented to
be sent a facsimile.
11. No opt out notice was provided as required on all faxes.
12. On information and belief, Defendant continues to send
these facsimiles nationwide without prior consent to do so.
13. Plaintiff was damaged by these calls by suffering a
monetary loss due to the calls, incurring the costs of the
use of facsimile paper, ink and toner, loss of employee time
to review the fax, invasion of privacy, nuisance,
interruption of work, trespass to its chattel by interfering
with its office facsimile used to aid patients, stress,
aggravation, and because a violation of the TCPA itself is a
response to Plaintiffs Complaint, Defendant Adv-Care filed
the instant Motion to Dismiss on September 5, 2017. The
Motion is supported by the Declaration of Amr Bannis, the
Treasurer of Defendant Adv-Care. (ECF #10-2) Mr. Bannis'
Declaration sets out Adv-Care's connections (or lack
thereof) with Ohio as follows:
2. Adv-Care is a Canadian company with its headquarters and
primary place of business ...