Ameriguard, Inc. v. University of Kansas Medical Center Research Institute, Inc. ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-2912
___________
Ameriguard, Inc., *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
*
University of Kansas Medical Center * [UNPUBLISHED]
Research Institute, Inc., *
*
Appellee. *
___________
Submitted: February 12, 2007
Filed: March 15, 2007
___________
Before RILEY, MELLOY, and SHEPHERD, Circuit Judges.
___________
PER CURIAM.
Ameriguard, Inc., appeals the district court’s1 dismissal of its Telephone
Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, complaint against University
of Kansas Medical Center Research Institute, Inc., (“Institute”).
1
The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
Ameriguard alleged that the Institute violated the TCPA by sending an
“unsolicited advertisement” via telephone facsimile machines and attached a copy of
the facsimile to its complaint as an exhibit. The complaint was initially filed in
Missouri state court but was removed by the Institute to federal court. Following
removal, the Institute filed a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) alleging that the complaint should be dismissed for failure to state
a claim upon which relief could be granted because the attached facsimile did not meet
the statutory definition of an “unsolicited advertisement.”
The TCPA provides that an “unsolicited advertisement” is “any material
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.” 47 U.S.C. § 227(a)(5) (2005). Applying the
definition set forth in the TCPA, the district court found that the facsimile did not
meet the definition of an “unsolicited advertisement” and granted the motion to
dismiss.
Having carefully reviewed the record, see Quinn v. Ocwen Fed. Bank FSB, 470
F.3d 1240, 1244 (8th Cir. 2006) (per curiam) (de novo standard of review), we agree
with the district court that Ameriguard failed to state a claim upon which relief could
be granted because the facsimile attached to the complaint does not constitute an
“unsolicited advertisement” pursuant to the TCPA. See 47 U.S.C. § 227(a)(5)
(defining unsolicited advertisement); Abels v. Farmers Commodities Corp., 259 F.3d
910, 921 (8th Cir. 2001) (materials attached to the complaint may be considered when
ruling on a Rule 12(b)(6) motion to dismiss).
Accordingly, we affirm. See 8th Cir. R. 47B.
______________________________
-2-