Zean v. Fairview Health Services, No. 16-1747 (8th Cir. 2017)
Annotate this CasePlaintiff filed suit against Fairview, alleging that the company made unauthorized telemarketing calls in violation of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227. The Eighth Circuit affirmed the district court's grant of Fairview's motion to dismiss, holding that whether consent is an affirmative defense is irrelevant to the Rule 12(b)(6) inquiry; the exhibits at issue were documents embraced by the pleadings that may be considered by the court; the district court did not commit plain error in concluding that the documents were properly authenticated documents reflecting an aspect of the parties' contractual relationship; given the contractual relationship alleged in the complaint, the district court did not err in considering the documents as reflecting plaintiff's pre-purchase consent; and Fairview's telemarketing calls were within the scope of the consent established.
Court Description: Loken, Author, with Murphy and Kelly, Circuit Judges] Civil Case - Telephone Consumer Protection Act. After purchasing a medical device from Fairview Health Services, Zean received automated telemarketing calls from Fairview referring to the device and asking if he wanted replacement supplies. Zean brought a class action under the Telephone Consumer Protection Act, claiming unauthorized telemarketing calls. Fairview moved to dismiss and presented redacted documents showing Zean's prior express consent. The district court's dismissal of the complaint is affirmed. Whether lack of consent is an element of a prima facie case or an affirmative defense is not relevant here. The documents attached are embraced by the pleadings, as they reflect the contractual relationship that refute the conclusory allegation that no consent was give, and thus can be considered in a motion to dismiss; the district court did not commit plain error in concluding the redacted documents were properly authenticated and did not err in considering the documents. The telemarketing calls were within the scope of the consent given. Judge Kelly dissents.
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