Schwanke v. SimonMed Imaging LLC

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Lawrence E. Schwanke,
Plaintiff,
v.
SimonMed Imaging LLC,
Defendant.
No. CV-25-01759-PHX-DGC
ORDER
Plaintiff Lawrence E. Schwanke brought this lawsuit against Defendant SimonMed
Imaging LLC. Doc. 1. SimonMed moves to dismiss for failure to state a claim. Doc. 13.
The motion is fully briefed and no party requests oral argument. Docs. 13, 17, 20. For the
reasons stated below, the Court will deny the motion.
I. Background.
Schwanke is a chiropractor practicing out of Florida. Doc. 1 ¶¶ 9, 17. He uses a
fax machine in his practice. Id. ¶ 34. Between September 17, 2024, and January 24, 2025,
Schwanke received at least seven unsolicited faxes from SimonMed Imaging LLC. Id.
¶¶ 3, 18. These faxes either communicated the commercial availability and pricing of
medical services offered by SimonMed or invited Schwanke to symposia that would
include information about SimonMed’s commercially offered services. Id. ¶¶ 22-32.
Schwanke did not request the faxes or give SimonMed permission to send them. Id. ¶ 33.
Nor did any of the faxes sent by SimonMed provide an opt-out notice giving Schwanke the
opportunity to decline future faxes. Id. ¶ 7.
Case 2:25-cv-01759-DGC Document 21 Filed 10/27/25 Page 1 of 6

- 2 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Schwanke brings this class action alleging violations of the Telephone Consumer
Protection Act (TCPA). Id. ¶ 78. SimonMed moves to dismiss for failure to state a claim,
arguing the faxes were not “advertisements” under the governing law. Doc. 13.
II. Legal Standard.
Dismissal for failure to state a claim under Rule 12(b)(6) is appropriate when a
complaint lacks a cognizable legal theory or fails to allege facts sufficient to support its
theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A complaint
that sets forth a cognizable legal theory will survive a motion to dismiss if it contains
“sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). A claim has facial plausibility when the plaintiff pleads “factual
content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. The Court treats all allegations of material fact in the
complaint as true and construes them in the light most favorable to Plaintiff. Cousins v.
Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009).
The TCPA prohibits sending “an unsolicited advertisement” to a fax machine unless
there is “an established business relationship” between the sender and recipient, among
other conditions not relevant here. 47 U.S.C. § 227(b)(1)(C).1 The term “unsolicited
advertisement” means “any material advertising the commercial availability . . . of any
property, goods, or services” transmitted to the recipient without his invitation or
permission. Id. § 227(a)(5). “To be commercially available” under the TCPA, “a good or
service must be available to be bought or sold (or must be a pretext for advertising a product
that is so available).” N.B. Indus., Inc. v. Wells Fargo & Co., 465 F. App’x 640, 642 (9th
Cir. 2012). When faced with a TCPA claim, the Ninth Circuit has guided lower courts to
1 The TCPA additionally mandates that faxes provide “a cost-free mechanism for a
recipient to transmit a request” opting out of future unsolicited advertisements. See id.
§ 227(b)(2)(D). Schwanke alleges SimonMed violated this provision of the TCPA (Doc. 1
¶¶ 63-64, 71), but this is not at issue in the motion to dismiss.
Case 2:25-cv-01759-DGC Document 21 Filed 10/27/25 Page 2 of 6

- 3 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
“approach the problem with a measure of common sense.” Chesbro v. Best Buy Stores,
L.P., 705 F.3d 913, 918 (9th Cir. 2012).
III. The Motion to Dismiss.
SimonMed does not dispute the faxes it sent Schwanke were “unsolicited” and that
there was no “established business relationship” between the parties. Instead, SimonMed
argues the faxes were not “advertisements” under the TCPA, where (1) the faxes inviting
Schwanke to the symposia were “informational communications” that merely sent
information on “topics of interest” to Schwanke, and (2) the faxes communicating the
commercial availability and pricing of SimonMed’s services were directed at Schwanke’s
patients, not Schwanke, and thus were not advertising to him. Doc. 13 at 6, 11-12.
A. The Symposia Faxes.
SimonMed relies on an interpretation by the Federal Communications Commission
(FCC) – the agency charged with interpreting the TCPA – to contend the faxes inviting
Schwanke to the symposia were not advertisements but “informational communications.”
Id. at 11. The FCC explained that a fax “contain[ing] only information, such as industry
news articles, legislative updates, or employee benefit information, would not be prohibited
by the TCPA rules.” Id. at 6-7 (quoting 71 Fed. Reg. 25967, 25974 (May 3, 2006)).
A district court “is not bound by the FCC’s interpretation of the TCPA,” but the
FCC interpretation does not support SimonMed even if the Court applies it. McLaughlin
Chiropractic Assocs., Inc. v. McKesson Corp., 606 U.S. 146, 168 (2025). The faxes
inviting Schwanke to the symposia did not “contain only information” about the symposia.
71 Fed. Reg. 25967, 25974. They also requested Schwanke’s attendance. See Docs. 1-1
at 2-3 (“Please join us for a Symposium”), 1-2 at 2 (same), 1-3 at 2 (same), 1-4 at 2 (“Please
join us for a premier gathering”), 1-5 at 2 (same). One fax even provided a promotional
code reducing the cost of attending the symposium. Doc. 1-4 at 2 (“[R]eceive a 25%
discount using coupon code EarlyBird22225”). By inviting and enticing Schwanke’s
attendance, the faxes went beyond containing “only information” and could be viewed as
a pretext for marketing SimonMed’s services and thus having a “commercial purpose.”
Case 2:25-cv-01759-DGC Document 21 Filed 10/27/25 Page 3 of 6

- 4 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
See Eric B. Fromer Chiropractic, Inc. v. Si-Bone, Inc., No. 19-CV-00633-LHK, 2019 WL
3577050, at *7 (N.D. Cal. Aug. 5, 2019) (finding a fax had a “commercial purpose” where
the plaintiff alleged “the Fax invited Plaintiff to an ‘educational dinner’ as a pretext for
Defendant to sell its products as ‘part of an overall marketing campaign for Defendants’
[sic] goods and services’” (citation omitted)).
SimonMed attempts to analogize to the Ninth Circuit case N.B. Industries, Inc.,
which can easily be distinguished. 465 F. App’x 640. In N.B. Industries, Inc., the fax
invited the recipient to a conference presenting a “Leadership Award,” which was not
“available for sale” and thus not “commercially available.” See id. at 642. Here, the faxes
invited Schwanke to symposia where SimonMed presented on its services, which were
“available for sale” and thus “commercially available.” See Doc. 17 at 7, 10-11. Unlike
N.B. Industries, the faxes inviting Schwanke can reasonably be viewed as a pretext for
advertising SimonMed’s medical services. See N.B. Indus., Inc., 465 F. App’x at 642
(explaining a fax violates the TCPA when it is “a pretext for advertising” the “commercial
availability” of a product or service). Under the Rule 12(b)(6) standard, Schwanke has
alleged facts sufficient for the Court reasonably to infer the faxes inviting Schwanke to the
symposia satisfy the “unsolicited advertisement” standard set forth by the Ninth Circuit.
See id. at 642.2
B. The Medical Services Faxes.
Turning to the faxes communicating the commercial availability and special pricing
of SimonMed’s medical services, SimonMed argues that “[b]ecause the faxes are not
attempting to solicit the recipient [Schwanke] into making a purchase, they are not
unlawful advertisements under the TCPA.” Doc. 13 at 11. SimonMed relies on a standard
set forth by the Third Circuit. See Doc. 13 at 6 (arguing “the fax must convey the
impression to its recipient that a seller is trying to make a sale to him” (quoting Mauthe v.
2 SimonMed additionally relies on interpretations of the TCPA by other circuits. See, e.g.,
Doc. 13 at 7 (arguing “[t]he possibility that future economic benefits will flow from a non-
commercial fax, ancillary to the content of the fax, is legally irrelevant to determining
whether the fax is an ad” (quoting Sandusky Wellness Ctr., LLC v. Medco Health Sols.,
Inc., 788 F.3d 218, 225 (6th Cir. 2015))). The Court will not rely on this out-of-circuit
precedent.
Case 2:25-cv-01759-DGC Document 21 Filed 10/27/25 Page 4 of 6

- 5 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Nat’l Imaging Assocs., Inc., 767 F. App’x 246, 249 (3d Cir. 2019))). But the TCPA does
not require a fax to solicit the recipient to make a purchase. Nor does it require a fax to
solicit an appropriate recipient, as suggested by SimonMed. See Doc. 20 at 8 (“Plaintiff
has not, and cannot, allege that faxes about mammograms and cardiovascular imaging sent
to a chiropractor’s office would result in some benefit to SimonMed.”). The TCPA
requires a fax to “advertis[e] the commercial availability” of a product, good, or service.
47 U.S.C. § 227(a)(5).
The faxes in this case advertised both the special pricing and commercial
availability of SimonMed’s services. See Docs. 1-1 at 2-3 (“SimonMed is offering $99 3D
Screening Mammograms”), 1-6 at 2 (“360-Degree analysis of . . . heart attack risk for
$350!”; “SimonMed Florida Locations: Special Pricing All Month!”; “SPECIAL
FEBRUARY PRICING!”; “LIFESAVING CCTA EXAMS NOW AVAILABLE FOR
ONLY $360!”; “[W]e are offering patients $360 CCTA Exams throughout the entire month
of February!”), 1-7 at 2-3 (“February Special $50”; “SELF PAY PRICE $50”; “Same Day
& Next Day Appointments for 3D Screening Mammograms”; “Extended hours and
weekend appointments available in some locations”). These faxes “advertise the
commercial availability” of SimonMed’s services to Schwanke and thus constitute
“advertisements” under the TCPA. 47 U.S.C. § 227(a)(5).
Applying “a measure of common sense” as instructed by the Ninth Circuit, Chesbro,
705 F.3d at 918, confirms this result. SimonMed’s faxes quite clearly sought to solicit his
patients’ business through procuring Schwanke’s endorsement. See Eric B. Fromer
Chiropractic, Inc., 2019 WL 3577050, at *6 (finding a fax had a “commercial purpose”
where “[t]he Fax was also sent to Plaintiff, a chiropractic corporation, which could inform
patients with SI joint pain about Defendant’s products”). Schwanke has alleged sufficient
facts for the Court reasonably to infer the faxes were “unsolicited advertisements” under
the TCPA. 47 U.S.C. § 227(a)(5). The Court will deny the motion to dismiss.
/ / /
/ / /
Case 2:25-cv-01759-DGC Document 21 Filed 10/27/25 Page 5 of 6

- 6 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
IT IS ORDERED that Defendant’s motion to dismiss (Doc. 13) is denied. The
Court will set a case management conference by separate order.
Dated this 27th day of October, 2025.
Case 2:25-cv-01759-DGC Document 21 Filed 10/27/25 Page 6 of 6