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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Ambassador Animal Hospital, Ltd.,

individually and as the representative 

of a class of similarly situated persons,

Plaintiff,

v.

Elanco Animal Health, Incorporated 

and Eli Lilly and Company,

Defendants.

Case No. 20-cv-2886

Judge Mary M. Rowland

MEMORANDUM OPINION AND ORDER

Plaintiff Ambassador Animal Hospital, Ltd. brings this putative class action 

against Elanco Animal Health, Incorporated and its former parent company, Eli Lilly 

and Company, for violations of the Telephone Consumer Protection Act (TCPA) and 

Illinois conversion law. In its original complaint, Plaintiff claimed that Defendants 

sent her faxes without her consent for commercial purposes. Defendants did not deny 

sending the faxes but maintained that the complaint failed to plausibly allege that 

the faxes constituted unlawful commercial advertisements. This Court agreed and 

granted Defendants’ motion to dismiss and allowed Plaintiff an opportunity to 

amend. Plaintiff timely filed an amended complaint [48], which Defendants have 

again moved to dismiss [51]. For the reasons explained below, this Court concludes 

that Plaintiff’s amended complaint fails to cure the factual deficiencies identified 

previously, and thus, grants Defendants’ renewed motion to dismiss [51].

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I. Background

This Court presumes familiarity with, and incorporates by reference, its prior 

opinion on Defendants’ original motion to dismiss, see Ambassador Animal Hospital,

Ltd. v. Elanco Animal Health, Inc., No. 20-CV-2886, 2021 WL 633358 (N.D. Ill. Feb. 

18, 2021). The following facts come from Plaintiff’s amended complaint.

Defendant Elanco provides products and services for the animal health and 

food-animal production industries. [48] ¶ 14. As of April 2018, Elanco was a division 

of Defendant Lilly; in September 2018, Lilly spun off part of its stake in Elanco, and 

then disposed of its other shares in 2019. Id. 

Plaintiff alleges, on information and belief, that Defendants have sent 

thousands of advertisements via fax to targeted recipients. Id. ¶ 16. They sent two 

of those faxes to Plaintiff in April 2018. Id. The faxes invited veterinarians or 

veterinary practice owners to attend and participate in programs on topics of interest 

to veterinarians. Id. ¶ 18. The faxes sent to Plaintiff prominently feature the Elanco 

logo and say they are “Fm: Elanco Animal Health.” Id. The faxes also appear to offer 

a free meal and “CE Credit” in exchange for attendance. Id. ¶ 19. 

Plaintiff did not expressly invite or give permission to anyone to receive these 

faxes. Id. ¶ 40. Plaintiff did not respond to either program invitation and did not 

attend any of the offered programs. Id. ¶ 21. Plaintiff alleges, on information and 

belief, that Elanco used the program invitations and programs to market its animal 

health goods and services. Id. ¶ 22. The first fax directed recipients to RSVP by 

calling Jim Archer, Senior District Manager at Elanco, and the second directed 

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recipients to call either a Taylor Johnson or Elanco’s Executive Territory Manager, 

Nicole Cochran. Id. ¶¶ 25–26, 31–32. 

As it did in its original complaint, Plaintiff brings a two-count amended 

complaint for violations of the TCPA (Count I) and conversion (Count II). Id. ¶¶ 54–

71, 72–79.

II. Legal Standard

A motion to dismiss tests the sufficiency of a counterclaim, not the merits of 

the case. Gunn v. Cont’l Cas. Co., 968 F.3d 802, 806 (7th Cir. 2020). To survive a 

motion to dismiss under Rule 12(b)(6), the counterclaim “must provide enough factual 

information to state a claim to relief that is plausible on its face and raise a right to 

relief above the speculative level.” Haywood v. Massage Envy Franchising, LLC, 887 

F.3d 329, 333 (7th Cir. 2018) (quoting Camasta v. Jos. A. Bank Clothiers, Inc., 761 

F.3d 732, 736 (7th Cir. 2014)); see also Fed. R. Civ. P. 8(a)(2) (requiring a complaint

to contain a “short and plain statement of the claim showing that the pleader is 

entitled to relief”). A court deciding a Rule 12(b)(6) motion accepts the well-pleaded 

factual allegations as true and draws all permissible inferences in the pleading 

party’s favor. Degroot v. Client Servs., Inc., 977 F.3d 656, 659 (7th Cir. 2020). 

Dismissal for failure to state a claim is proper “when the allegations in a 

complaint, however true, could not raise a claim of entitlement to relief.” Bell Atl. 

Corp. v. Twombly, 550 U.S. 544, 558 (2007). Deciding the plausibility of the claim is

“a context-specific task that requires the reviewing court to draw on its judicial 

experience and common sense.” Bilek v. Fed. Ins. Co., 8 F.4th 581, 586–87 (7th Cir. 

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2021) (quoting W. Bend Mut. Ins. Co. v. Schumacher, 844 F.3d 670, 676 (7th Cir. 

2016)).

III. Analysis

A. TCPA and the Court’s First Opinion

TCPA liability rests upon showing that a defendant used a facsimile machine, 

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

advertisement,” which means “any material advertising the commercial availability 

or quality of any property, goods, or services which is transmitted to any person 

without that person’s prior express invitation.” Ambassador Animal Hosp., 2021 WL 

633358, at *2 (first quoting 47 U.S.C. § 227 (b)(1)(C); then quoting 47 U.S.C. § 

227(a)(5)). Courts in this district determine whether a fax constitutes an unsolicited 

advertisement by assessing whether the “fax, on its face, constitutes an 

advertisement,” or alternatively, whether the “fax is a pretext to an advertisement.” 

Podiatry in Motion, Inc. v. Interviewing Servs. of Am., LLC, No. 20 C 3159, 2020 WL 

5909063, at *2 (N.D. Ill. Oct. 5, 2020) (first citing Phillips Randolph Enters., LLC v.

Adler-Weiner Rsch. Chi., Inc., 526 F. Supp. 2d 851, 853 (N.D. Ill. 2007); then quoting 

James L. Orrington, II, D.D.S., P.C. v. Scion Dental, Inc., No. 17 C 884, 2019 WL 

4934696, at **3, 5 (N.D. Ill. Oct. 7, 2019)), appeal dismissed sub nom. Podiatry in

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Motion, Inc. v. Interviewing Serv. of Am., LLC, No. 20-3157, 2021 WL 1784748 (7th 

Cir. Mar. 15, 2021).

B. Amended TCPA Allegations 

Like the first round of motion to dismiss briefing, the sole dispute as to the 

TCPA claim concerns whether Defendants’ faxes constitute such an “unsolicited 

advertisement” within the meaning of the TCPA. In its prior opinion, this Court 

determined that they are not. This Court held that the faxes do not constitute 

advertisements on their face because they mention Elanco’s name and logo but do not 

mention any of the company’s products or services. Ambassador Animal Hosp., 2021 

WL 633358, at *3. The amended complaint also did not plausibly plead that the 

faxes serve as a pretext to an advertisement because Plaintiff admitted that it did not 

know the content or purpose of Defendants’ free seminars and could only state, upon 

information and belief, that Elanco used the seminars to market its goods and 

services. Id. 

The amended complaint falls short of curing the factual deficiencies this Court 

previously identified. The faxes are the same, so on their face, they are not 

advertisements as they do not advertise Defendants’ goods or services. See Advanced

Dermatology v. Fieldwork, Inc., No. 19 C 05821, 2021 WL 3077663, at *4 (N.D. Ill. 

July 21, 2021) (holding that a fax did not facially constitute an advertisement because 

the defendant’s “goods or services are not advertised on the face of the fax itself”). 

Nor does the amended complaint allege any new facts raising an inference that 

the faxes served as a pretext for marketing Defendants’ goods or services. Plaintiff 

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raises several arguments this Court previously rejected. First, it suggests that 

Defendants “showed the commercial purpose of their seminars” by offering seminars 

tailored to the products they hoped to sell. [58] at 6–7. But as this Court’s explained 

before, the faxes do not themselves contain information showing that Elanco made 

drugs related to osteoarthritis or feline disease prevention. Ambassador Animal

Hosp., 2021 WL 633358, at *3. And even if a recipient of Defendants’ faxes knew 

about Defendants’ business, no authority exists for the proposition that a “reader’s 

possible knowledge [about a defendant’s products] can transform an otherwise benign 

fax into an advertisement.” Id. This Court also has rejected Plaintiff’s argument that 

Defendants’ offer of a free dinner evidenced the commercial purpose of its faxes. See

id. at *4; contra [58] at 7–8. Although Defendants may have intended to generate 

goodwill for the company by offering a free meal, the mere fact that they may gain a 

hypothetical economic benefit fails to convert a noncommercial communication into a 

commercial solicitation. Ambassador Animal Hosp., 2021 WL 633358, at *4 (citing 

Orrington, at *5).

Plaintiff also contends that Defendants “showed the commercial purpose” of 

their seminars by requiring fax recipients to RSVP to senior or executive managers, 

not ministerial employees. [58] at 7. On this point, Plaintiff points to its new 

allegations that the faxes directed recipients to RSVP to Jim Archer, Senior District 

Manager at Elanco, and Nicole Cochran, Elanco’s Executive Territory Manager. [58] 

at 7. Missing from the amended complaint, however, are further facts from which 

this Court could conclude that Defendants’ RSVP request served as anything other 

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than what it was—an RSVP mechanism to a free seminar for continuing education 

credit—rather than a way to elicit business. Indeed, because Plaintiff continues to 

admit that it did not respond to either program invitation and did not attend any of 

the offered programs, [48] ¶ 21, it necessarily could not have known about the nature 

of the offered programs nor what an Elanco employee would have said on the phone 

to a recipient who RSVP’d to one of the faxes. 

And in contrast to other cases where courts have declined to dismiss a 

complaint, Plaintiff does not and cannot allege that registration for Defendants’

programs required consent to receive future marketing emails to have its information 

sold. Ambassador Animal Hosp., 2021 WL 633358, at *4 (collecting cases). In short, 

Plaintiff simply has not alleged further facts that plausibly suggest a commercial 

purpose to Defendants’ faxes; it has not raised a right to relief above the speculative 

level. Haywood, 887 F.3d at 333. For these reasons, this Court dismisses Count I, 

this time with prejudice. 

C. The Conversion Claim in Count II

Generally, when a district court dismisses all of a plaintiff’s federal claims, it 

should relinquish supplemental jurisdiction over state-law claims rather than resolve 

them on the merits. Cortezano v. Salin Bank & Tr. Co., 680 F.3d 936, 941 (7th Cir. 

2012); Wright v. Associated Ins. Cos. Inc., 29 F.3d 1244, 1252 (7th Cir. 1994) (pendent 

state-law claims “should be left to the state courts.”); 28 U.S.C. § 1367(c). Because 

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this Court dismissed the federal claim in Count I, it declines to exercise supplemental 

jurisdiction over Plaintiff’s state-law conversion claim in Count II. 

IV. Conclusion

For the reasons explained above, this Court grants Defendants’ motion to 

dismiss [51] the amended complaint [48]. This Court dismisses Count I with 

prejudice and declines to exercise supplemental jurisdiction over Count II. The Clerk 

is directed to enter a judgment of dismissal with prejudice on Count I and dismissal 

without prejudice on Count II. Defendant Lilly’s motion to strike in part the proposed 

class and class definition [55] is denied as moot. Civil case terminated. 

Dated: February 22, 2022

E N T E R:

MARY M. ROWLAND

United States District Judge

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