Order Form (01/2005)

United States District Court, Northern District of Illinois

Name of Assigned Judge

or Magistrate Judge

Joan B. Gottschall Sitting Judge if Other

than Assigned Judge

CASE NUMBER 12 C 5105 DATE 11/13/2012

CASE

TITLE

Physicians Healthsource, Inc. vs. A-S Medication Solutions, LLC

DOCKET ENTRY TEXT

Defendants’ Motion to Dismiss or to Stay [17] is denied. Plaintiff’s Motion for Leave to File Supplemental

Authority [24] is granted.

O[ For further details see text below.] Docketing to mail notices.

STATEMENT

Plaintiff Physicians Healthsource, Inc. (“Plaintiff”) filed suit on May 22, 2012, in the Circuit Court of Lake

County, Illinois, against Defendants A-S Medication Solutions LLC, James Barta, and Walter Hoff (collectively

“Defendants”). Plaintiff alleges violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. §

227, and state law. The case was removed to this court on June 26, 2012. Defendants move to dismiss the

complaint for lack of standing pursuant to Federal Rule of Civil Procedure 12(b)(1), and alternatively request

a stay of the proceedings pending a forthcoming Seventh Circuit decision. For the reasons that follow, the motion

is denied. 

In deciding a motion to dismiss pursuant to Rule 12(b)(1), the court must “accept[] as true all facts alleged in the

well-pleaded complaint and draw[ ] all reasonable inferences in favor of the plaintiff.” Scanlan v. Eisenberg,

669 F.3d 838, 841 (7th Cir. 2012). The party invoking federal jurisdiction has the burden to establish standing. 

Id. The court may review extraneous evidence submitted by the parties to determine whether subject matter

jurisdiction exists. United Transp. Union v. Gateway W. R.R., 78 F.3d 1208, 1210 (7th Cir. 1996). 

Defendants argue that this case must be dismissed because Plaintiff’s complaint fails to allege actual receipt of

an unsolicited fax advertisement and therefore files to allege an injury sufficient to support standing under Article

III of the Constitution or the TCPA. Plaintiff responds that a) Plaintiff did allege receipt of a fax, and b) even

had Plaintiff failed to allege receipt, a claim arising under the TCPA does not require proof of receipt of a fax. 

The court has read the complaint as a whole, drawing all reasonable inferences in favor of Plaintiff. See Triad

Assocs., Inc. v. Robinson, 10 F.3d 492, 498 (7th Cir. 1993) (“A court’s duty . . . is to consider a complaint as a

whole.”). Based on that reading, the court finds that Plaintiff has alleged receipt of a fax. The complaint states: 

“On or about February 18, 2010, Defendants sent an unsolicited facsimile to Plaintiff. A copy of the facsimile

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STATEMENT

is attached hereto as Exhibit A.” (Compl. ¶ 14, ECF No. 1-1.) Plaintiff attached the fax to the complaint. The

complaint also states, “There is no reasonable means for Plaintiff (or any other class member) to avoid receiving

illegal faxes. Fax machines are left on and ready to receive the urgent communications owners desire to receive.” 

(Id. at ¶ 19.) Finally, the complaint states:

Receiving Defendants’ junk faxes caused the recipients to lose paper and toner consumed in the

printing of Defendants’ faxes. Moreover, Defendants’ faxes used Plaintiff’s fax machine.

Defendants’ faxes cost Plaintiff time, as Plaintiff and its employees wasted their time reviewing

and routing Defendants’ illegal faxes. That time otherwise would have been spent on Plaintiff’s

business activities. Defendants’ faxes unlawfully interrupted Plaintiff’s and the other class

members’ privacy interests in being left alone. Finally, the injury and property damage sustained

by Plaintiff and other class members from the sending of Exhibit A occurred outside Defendants’

premises.

(Id. at ¶ 33.) From these allegations, and the fact that the fax sent to Plaintiff was attached to the complaint, the

court can reasonably infer that Plaintiff received an unsolicited fax. Thus, even assuming that the TCPA requires

proof of receipt of an unsolicited fax, Plaintiff has sufficiently alleged such receipt, and Defendants’ Rule

12(b)(1) motion must be denied.

Because the court denies the motion on this basis, the court does not address Plaintiff’s argument that, as some

courts in this district have held, the TCPA does not require proof of the receipt of an unsolicited fax, but only

requires that the fax have been sent. See 47 U.S.C. § 227(b)(1)(C) (prohibiting the use of “any telephone

facsimile machine, computer or other device to send, to a telephone facsimile machine, an unsolicited

advertisement”); Bridgeview Health Care Ctr. Ltd. v. Clark, No. 09 C 5601, 2011 WL 4628744, at *3 (N.D. Ill.

Sept. 30, 2011) (“[T]he statutory language of the TCPA does not require receipt. Furthermore, a variety of courts

in this District have certified classes where class definitions employ the term ‘sent’ as opposed to ‘received.’”).

Nor will the court grant Defendants’ alternative request to stay the case pending the Seventh Circuit’s decision

in Holtzman v. Turza, Nos. 11-3746 & 11-3188 (7th Cir.) (oral argument held May 22, 2012). Defendants argue

that the circuit court is likely to decide whether “actual receipt” of a fax is a necessary requirement for

establishing standing for TCPA plaintiffs. Although that decision would be controlling on this court, for the

reasons explained above, it would not affect the outcome of this motion to dismiss. The motion to dismiss or to

stay is therefore denied.

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