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Advanced Dermatology v. Adv-Care Pharmacy, Inc.

United States District Court, N.D. Ohio, Eastern Division

October 31, 2017

ADVANCED DERMATOLOGY, Plaintiffs,
v.
ADV-CARE PHARMACY, INC., Defendant.

          MEMORANDUM OPINION

          DONALD C. NUGET, UNITED STATES DISTRICT JUDGE.

         This 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.

         Procedural and Factual Background

         Plaintiff 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: "ADVCare Pharmacy".
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 concrete injury.

(ECF#1)

         In 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 ...

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