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Mauthe v. Optum, Inc.

United States District Court, E.D. Pennsylvania

July 27, 2018

ROBERT MAUTHE, M.D., P.C., Plaintiff,
v.
OPTUM, INC. and OPTUMINSIGHT, INC., Defendants.

          MEMORANDUM OPINION

          EDWARD G. SMITH, J.

         Smith, 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.

         The 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.

         I. PROCEDURAL HISTORY

         On 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.

         On 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.

         On 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.

         III. DISCUSSION

         A. Standard of Review

         Pursuant 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).

         B. Undisputed Facts

         After 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.”[1] Defs.' Separate Statement of Undisputed Facts at ¶ 12 (“Defs.' Statement”), Doc. No. 40-2.

         In its 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 Database.
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 ...


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