Case: 4:21-cv-00820-BYP Doc #: 1 Filed: 04/19/21 1 of 6. PageID #: 1
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF OHIO
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`)
`)
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`Civil Action No.
`
`CLASS ACTION
`
`COMPLAINT
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`)))))))))
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`
`
`FAMILY HEALTH PHYSICAL
`MEDICINE, LLC, individually and as the
`representative of a class of similarly-situated
`persons,
`
`Plaintiff,
`
`v.
`
`SELECT MEDICAL CORPORATION,
`
` Defendant.
`
`Pursuant to Rules 7 and 8 of the Federal Rules of Civil Procedure, Plaintiff Family Health
`
`Physical Medicine, LLC (“Family Health”) alleges the following against Defendant Select
`
`Medical Corporation (“Select Medical Corporation”).
`
`PARTIES
`
`1.
`
`Family Health
`
`is
`
`an Ohio
`
`corporation
`
`that operates
`
`a physical
`
`medicine/chiropractic clinic in Alliance, Ohio.
`
`2.
`
`Select Medical Corporation is a Missouri corporation with its principal place of
`
`business in Pennsylvania.
`
`3.
`
`Select Medical Corporation is a for-profit corporation that derives revenue from
`
`the providing of physical therapy services at various facilities in Ohio under the trade name
`
`“NovaCare Rehabilitation.”
`
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF OHIO
`
`)
`)
`
`Civil Action No.
`
`CLASS ACTION
`
`COMPLAINT
`
`))
`
`
`)
`)
`)
`
`)))))))))
`
`
`
`FAMILY HEALTH PHYSICAL
`MEDICINE, LLC, individually and as the
`representative of a class of similarly-situated
`persons,
`
`Plaintiff,
`
`v.
`
`SELECT MEDICAL CORPORATION,
`
` Defendant.
`
`Pursuant to Rules 7 and 8 of the Federal Rules of Civil Procedure, Plaintiff Family Health
`
`Physical Medicine, LLC (“Family Health”) alleges the following against Defendant Select
`
`Medical Corporation (“Select Medical Corporation”).
`
`PARTIES
`
`1.
`
`Family Health
`
`is
`
`an Ohio
`
`corporation
`
`that operates
`
`a physical
`
`medicine/chiropractic clinic in Alliance, Ohio.
`
`2.
`
`Select Medical Corporation is a Missouri corporation with its principal place of
`
`business in Pennsylvania.
`
`3.
`
`Select Medical Corporation is a for-profit corporation that derives revenue from
`
`the providing of physical therapy services at various facilities in Ohio under the trade name
`
`“NovaCare Rehabilitation.”
`
`
`
`Case: 4:21-cv-00820-BYP Doc #: 1 Filed: 04/19/21 2 of 6. PageID #: 2
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`4.
`
`Select Medical Corporation owns and/or operates the physical therapy facility
`
`located at 550 South Canfield Niles Road in Youngstown, Ohio 44515 under the trade name
`
`“NovaCare Rehabilitation.”
`
`FACTS
`
`5.
`
`On August 22, 2019, Family Health received a document on its fax machine
`
`touting the physical therapy services of “NovaCare Rehabilitation” (the “NovaCare Fax”). A
`
`copy of the NovaCare Fax is attached hereto as Exhibit A.
`
`6.
`
`The NovaCare Fax advertised the various services of “NovaCare Rehabilitation”
`
`such as “Physical Therapy”, “Sports Medicine”, and “Concussion Rehabilitation.”
`
`7.
`
`The NovaCare Fax, which was not addressed to anyone, was targeted at medical
`
`providers such as Family Health to generate patient referrals to “NovaCare Rehabilitation”
`
`facilities.
`
`8.
`
`The NovaCare Fax offered to “better serve you and your patients,” invited the
`
`intended recipients to “make a referral,” and promised to “contact your patient and schedule
`
`them within 24 hours.”
`
`9.
`
`The NovaCare Fax was transmitted to Family Health’s fax number and received
`
`by Family Health’s fax machine. Upon receiving this transmission, Family Health’s fax machine
`
`printed the NovaCare fax onto paper using ink and toner.
`
`CLAIM FOR RELIEF – VIOLATION OF THE TCPA
`
`10.
`
`47 U.S.C. § 227 is a federal law that is commonly known as the Telephone
`
`Consumer Protection Act (“TCPA”) or Junk Fax Prevention Act (“JFPA”).
`
`11.
`
`The TCPA generally prohibits the sending of unsolicited advertisements via
`
`facsimile. Specifically, 47 U.S.C. § 227(b)(1)(C) states, in part, as follows:
`
`2
`
`
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`Case: 4:21-cv-00820-BYP Doc #: 1 Filed: 04/19/21 3 of 6. PageID #: 3
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`It shall be unlawful for any person . . . to use any telephone
`facsimile machine, computer or other device to send, to a
`telephone
`facsimile machine, an unsolicited advertisement
`unless— (i) the unsolicited advertisement is from a sender with an
`established business relationship with the sender . . . and (iii) the
`unsolicited advertisement contains a notice meeting
`the
`requirements under paragraph (2)(D).
`
`12.
`
`47 U.S.C. § 227(a)(5) of the TCPA defines the term “unsolicited advertisement”
`
`as follows:
`
`‘unsolicited advertisement’ means any material
`term
`The
`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 or permission, in writing or
`otherwise.
`
`13.
`
`Paragraph (b)(2)(D) of the TCPA sets forth the requirements for an opt-out notice
`
`on fax advertisements. These requirements include, among others, that “the notice is clear and
`
`conspicuous and on the first page of the unsolicited advertisement” and that “the notice states
`
`that the recipient may make a request to the sender of the unsolicited advertisement not to send
`
`any future unsolicited advertisements to a telephone facsimile machine and that failure to
`
`comply, within the shortest reasonable time, . . . is unlawful.”
`
`14.
`
`The NovaCare Fax advertised the commercial availability and/or quality of the
`
`services of Select Medical Corporation.
`
`15.
`
`Select Medical Corporation did not obtain express permission from Family Health
`
`before transmitting the NovaCare Fax to the fax number/fax machine of Family Health.
`
`16.
`
`The NovaCare Fax did not contain a notice that met the requirements of
`
`Paragraph (b)(2)(D) of the TCPA.
`
`CLASS ACTION ALLEGATIONS
`
`17.
`
`Family Health brings this action on behalf of the following persons: “All persons
`
`3
`
`
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`Case: 4:21-cv-00820-BYP Doc #: 1 Filed: 04/19/21 4 of 6. PageID #: 4
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`who (1) on or after four years prior to the filing of this action; (2) were sent the NovaCare Fax or
`
`similar material; (3) via facsimile; (4) and for whom Select Medical Corporation has no
`
`documents purporting to show the intended recipient’s express permission to receive facsimile
`
`advertisements from Select Medical Corporation. The persons who meet these criteria are the
`
`“putative class members”.
`
`18.
`
`Numerosity: Based on information, belief, and the appearance of the NovaCare
`
`Fax, Select Medical Corporation sent the NovaCare Fax to numerous persons via their fax
`
`numbers/fax machines.
`
`19.
`
`Commonality: Common questions of law and fact apply to the claims of the
`
`putative class members. These include the following:
`
`“unsolicited
`an
`is
`the NovaCare Fax
`(a) Whether
`advertisement” within the meaning of the TCPA;
`
`(b) Whether Select Medical Corporation is the “sender” of the
`NovaCare Fax within the meaning of the TCPA;
`
`(c) Whether Select Medical Corporation obtained “express
`invitation or permission” within the meaning of the TCPA
`from
`the recipients of
`the NovaCare Fax prior
`to
`transmitting it to them via their fax numbers/fax machines;
`
`(d) Whether the NovaCare Fax contained an opt-out notice that
`complied with the requirements of the TCPA; and
`
`(e) Whether Select Medical Corporation sent the NovaCare
`Fax intentionally, was aware of the TCPA at the time,
`and/or violated the TCPA knowingly.
`
`20.
`
`Typicality: Family Health has the same claim under the same federal statute as the
`
`other putative class members for their receipt of the NovaCare Fax (and any similar facsimiles).
`
`Family Health also has the same damages as the other putative class members for the alleged
`
`violation(s) of the TCPA by Select Medical Corporation.
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`4
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`Case: 4:21-cv-00820-BYP Doc #: 1 Filed: 04/19/21 5 of 6. PageID #: 5
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`21.
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`Adequacy: Family Health has no interests in conflict with the putative class
`
`members, has the resources and inclination to prosecute this action to completion, and has
`
`retained experienced and competent counsel to assist it in doing so.
`
`22.
`
`Predominance: The questions of law and fact common to the putative class
`
`members predominate over any questions affecting only individual members because:
`
`(a)
`
`(b)
`
`(c)
`
`(d)
`
`Family Health’s claim depends on the same factual and
`legal issues as the claims of the other putative class
`members;
`
`the evidence supporting Select Medical Corporation’s
`likely defenses will come solely from Select Medical
`Corporation’s own records and will not require any
`information or inquiries from individual class members;
`
`the damages for the alleged violation(s) of the TCPA by
`Select Medical Corporation are set by statute and,
`therefore, will be the same for each and every member of
`the putative class; and
`
`the identity of the putative class members can be readily
`ascertained from Select Medical Corporation’s computer,
`phone, or other business records.
`
`23.
`
`Superiority: A class action would be superior to individual actions by the putative
`
`class members for the following reasons:
`
`(a)
`
`(b)
`
`the damages suffered by any one class member are too low
`to justify a stand-alone, individual lawsuit;
`
`the TCPA contains no provision for awarding attorney fees.
`As such, individual claimants would, as a practical matter,
`have to proceed pro se against a large, sophisticated
`defendant;
`
`(c) many of the putative class members are, like Family
`Health, non-natural entities that would not be permitted to
`proceed in court pro se; and
`
`(d)
`
`the putative class
`the evidence concerning each of
`member’s claims is so similar that the adjudication of each
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`5
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`Case: 4:21-cv-00820-BYP Doc #: 1 Filed: 04/19/21 6 of 6. PageID #: 6
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`on an individual basis would be repetitive, inefficient, and
`wasteful.
`
`WHEREFORE, Plaintiff Family Health Physical Medicine, LLC demands judgment in its
`
`favor and against Defendant Select Medical Corporation as follows:
`
`(1)
`
`(2)
`
`(3)
`
`that the Court adjudge and decree that the present case may be maintained
`as a class action, appoint Family Health as the representative of the class,
`and appoint counsel for Family Health as counsel for the class;
`
`that the Court award the statutory damages provided by the TCPA to
`Family Health and the other members of the class for each violation of the
`TCPA by Select Medical Corporation; and
`
`that the Court award Family Health an incentive award, pre-judgment
`interest, post-judgment interest, attorney fees, treble damages, costs, and
`such other relief as may be just and proper.
`
`Respectfully submitted,
`
`/s/ Matthew E. Stubbs
`GEORGE D. JONSON
`MATTHEW W. STUBBS
`MONTGOMERY JONSON LLP
`600 Vine Street, Suite 2650
`Cincinnati, OH 45202
`Telephone:
`(513) 241-4722
`Facsimile:
`(513) 768-9227
`Email:
`gjonson@mojolaw.com
`mstubbs@mojolaw.com
`
`6
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