United States District Court, E.D. Pennsylvania
G. SMITH, J.
J. July 27, 2018 The defendants maintain a national database
of health care providers. The plaintiff is a health care
provider. This case arises out of a facsimile
(“fax”) the defendants sent to the plaintiff to
verify information in their database. After receiving this
single-page fax, the plaintiff filed the instant lawsuit
alleging that the fax was an unsolicited advertisement in
violation of the Telephone Consumer Protection Act. The
plaintiff also contends that the fax unlawfully converted his
printer paper and toner.
parties have now engaged in limited discovery on the issue of
whether the fax was an advertisement or a pretext for an
advertisement, and the defendants have moved for summary
judgment. Discovery has confirmed that the fax was neither an
advertisement nor a pretext for an advertisement. The fax did
not market the availability of a good or service, nor was it
a pretext for a larger scheme to market the availability of a
good or service. Accordingly, the court grants the motion for
summary judgment on count I and declines to exercise
jurisdiction over the pendant state law conversion claim.
April 11, 2017, the plaintiff, Dr. Robert Mauthe, filed a
complaint alleging that the defendants, Optum, Inc. and Optum
Insight, Inc. (collectively referred to as
“Optum”), sent him an unsolicited fax that (1)
violated the Telephone Consumer Protection Act
(“TCPA”) and (2) unlawfully converted his fax
paper and printer toner. See Compl. at 9, 17, Doc.
No. 1. Optum filed a motion to dismiss on June 15, 2017. Doc.
No. 13. After the parties briefed the motion, the court
granted the motion and dismissed the complaint because the
fax “does not [on its face] advertise the commercial
availability of any good or service . . . .” July 19,
2017 Order, Doc. No. 24.
August 16, 2017, the plaintiff filed an amended complaint,
which Optum moved to dismiss on August 22, 2017. Doc. Nos.
25, 28. The court denied this motion to dismiss without
prejudice to Optum raising its arguments in a motion for
summary judgment. See Oct. 17, 2017 Order, Doc. No.
33. In the order denying the motion to dismiss, the court
also ordered the parties to perform limited discovery on the
issue of whether Optum's “fax was an advertisement
or a pretext, i.e., whether it was part of a larger
advertising scheme.” Id. The parties concluded
limited discovery on March 2, 2018. See Jan. 31,
2018 Stipulation and Order, Doc. No. 39.
April 6, 2018, Optum filed a motion for summary judgment.
Doc. No. 40. The plaintiff filed a response on April 23,
2018. Doc. No. 47. Optum filed a reply to the response to the
motion on April 30, 2018. Doc. No. 50. The court heard oral
argument on the motion for summary judgment on May 18, 2018,
and the motion is now ripe for adjudication.
Standard of Review
to Rule 56(a) of the Federal Rules of Civil Procedure
“[t]he court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to summary judgment as a
matter of law.” Fed.R.Civ.P. 56(a). The court must
examine the evidence presented in the light most favorable to
the non-movant. See Boyle v. Cty. of Allegheny
Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998).
reviewing the record, the court finds that there is no
genuine dispute as to any material fact. The undisputed
material facts are as follows: the plaintiff is a private
health care provider. See Pl.'s Resp. to
Defs.' Separate Statement of Undisputed Facts at ¶ 1
(“Pl.'s Statement”), Doc. No. 47-1. Optum
runs a “national referential database of [health care]
providers.” Pl.'s Statement at ¶ 6; see
also Eide Dep. at 16, Doc. No. 40-5. This national
database “includes various data points about medical
providers, including provider name, address, phone number,
fax number, specialty, National Provider Identifier, medical
school, and residency.” Pl.'s Statement at ¶
7. The database is usually “purchased and used by
organizations that manage a health care network and pay
claims, such as third-party payors or a third-party
administrator.” Id. at ¶ 8. “The
organizations that purchase and use the Database typically
have 5, 000-plus providers in their network.”
Id. at ¶ 10 (internal quotation marks omitted).
These organizations purchase the Database to, inter
alia, “(a) correct inaccurate provider data in
their directories, (b) identify potential providers to fill
gaps in their networks, and (c) validat[e] provider
information before paying a claim, such as an insurance
claim.” Id. at ¶ 11 (citations omitted).
“Optum does not market the Provider Database to
individual provider offices.” Defs.' Separate
Statement of Undisputed Facts at ¶ 12 (“Defs.'
Statement”), Doc. No. 40-2.
efforts to update and verify the information in the database,
Optum sends faxes to health care providers asking them to
verify their information. See Pl.'s Statement at
¶¶ 16-18; see Bellis Dep. at 58-63. Optum
sent one of these faxes to the plaintiff. See Am.
Compl. at Ex. A; Bellis Dep. at 30-31. The single-page fax
listed the contact information Optum currently has for the
plaintiff and asked him to “[c]heck below if the data
displayed is correct.” Am. Compl. at Ex. A. If the data
was wrong, the fax asked the plaintiff to “write the
correct data in the space provided.” Id. The
fax also describes the Optum database and why the plaintiff
is receiving the fax:
As part of ongoing data maintenance of our Optum Provider
Database product, Optum regularly contacts healthcare
practitioners to verify demographic data regarding your
office location(s). This outreach is independent of and not
related to your participation in any Optum network. By taking
a few minutes to verify your practice information is current,
your information will be promptly updated in Optum Provider
This data is used by health care related organizations to aid
in claims payment, assist with provider authentication and
recruiting, augment their own provider data, mitigate
healthcare fraud and publish accurate provider directories.
Id. As indicated above, discovery has confirmed the
accuracy of these statements regarding the purpose of the fax
and the ...