United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE
matter is before the court on Defendant IM Records,
Inc.'s Motion to Dismiss or, in the Alternative, to
Strike the Class Definition (Docs. # 13; 14) and Defendant
Acton Corporation's Motion to Dismiss (Doc. # 37). The
Motions are fully briefed. (Docs. # 13; 14; 27; 33; 37; 43;
44). On December 14, 2017, the court held a hearing on these
Motions. For the reasons explained below, both Motions (Docs.
# 13; 37) are due to be granted.
allege that they requested medical records from Defendants
and were charged improper search and retrieval fees in
violation of the Health Insurance Portability and
Accountability Act of 1996 (“HIPAA”) and the
Health Information Technology for Economic and Clinical
Health Act (the “HITECH Act”). (Doc. # 1).
Plaintiff Joel Kelly (“Kelly”) alleges that he
requested his medical records from Defendant Acton
Corporation (“Acton”) six different times and was
charged and paid a $5.00 retrieval fee to Acton for each of
his requests. (Id. at ¶ 31-36). Plaintiff
Sheila Garrett (“Garrett”) alleges that she
requested her medical records from Acton and was charged and
paid a $5.00 retrieval fee to Acton for this request.
(Id. at ¶ 40). Plaintiff Jordan Bocage
(“Bocage”) alleges that she requested her medical
records from Defendant IM Records, Inc. (“IM
Records”) two different times and was charged and paid
a $5.00 search and retrieval fee to IM Records for each of
her requests. (Id. at ¶ 42-43).
18, 2017, Plaintiffs filed this action, seeking damages under
Alabama state law claims of unjust enrichment, negligent
misrepresentation, fraudulent misrepresentation, breach of
implied contract, and conversion. (Doc. # 1). Plaintiffs also
seek declaratory and injunctive relief. (Id.).
Plaintiffs brought this action on behalf of themselves and a
class of similarly situated individuals “who were
assessed a ‘retrieval' or ‘search fee'
from 2013 to the present from Defendants for the procurement
and/or purchase of the protected health information.”
(Id. at ¶ 45). IM Records filed its Motion to
Dismiss or, in the Alternative, to Strike the Class
Definition on October 11, 2017. (Doc. # 13). Acton filed its
Motion to Dismiss on November 20, 2017. (Doc. # 37). As
appendixes to their motions to dismiss, Defendants Acton and
IM Records included copies of each of Plaintiffs' medical
records requests, which show that these requests were made by
Plaintiffs' attorneys, not by Plaintiffs themselves.
(Docs. # 13-1; 37-1).
The Documents Defendants Attached to their Complaint Are
Central to Plaintiffs' Claims and
district court generally must convert a motion to dismiss
into a motion for summary judgment if it considers materials
outside the complaint.” Day v. Taylor, 400
F.3d 1272, 1275-76 (11th Cir. 2005) (citing Fed.R.Civ.P.
12(b)). However, a “court may consider a document
attached to a motion to dismiss without converting the motion
into one for summary judgment if the attached document is (1)
central to the plaintiff's claim and (2) undisputed.
Id. at 1276. Both of these elements are met here.
documents are central to Plaintiffs' claims for at least
two reasons. First, Plaintiffs explicitly reference these
documents and thereby incorporate these requests and invoices
into their Complaint. (Doc. # 1 at ¶ 31-36, 40, 42-43);
see Taylor, 400 F.3d at 1276 (explaining that if a
“document's contents are alleged in a complaint and
no party questions those contents, ” the court may
consider the attached document if it is central to the
plaintiff's claim). Second, the documents are “at
the very heart of” Plaintiffs' claims because
Plaintiffs' claims center on whether Plaintiffs were
improperly charged (via the referenced invoices attached to
Defendants' motions to dismiss) for their medical records
requests. See Taylor, 400 F.3d at 1276.
do not dispute that Defendants' attached documents are
central to Plaintiffs' claims nor do they dispute the
authenticity of the documents. Moreover, the documents are
accompanied by authenticating affidavits that attest to their
accuracy. See Id. (noting that an attached document
is “undisputed” if “the authenticity of the
document is not challenged”). Rather than directly
challenging the centrality and/or authenticity of the
documents at issue, Plaintiffs argue that the court must
accept the allegations in the Complaint that “each of
the individual Plaintiffs requested their [medical
records]” as true. (Docs. # 27 at p. 3; 43 at ¶
3). But, this argument misses the mark. The court need not
accept the conclusory allegation that Plaintiffs'
individually requested their medical records from Defendants
if, in fact, Defendants have put forth undisputed documents
-- that are both referenced in Plaintiffs' Complaint and
are central to their claims -- showing otherwise. As such,
the court may consider these appendixes without converting
Defendants' motions to dismiss into motions for summary
judgment. See Taylor, 400 F.3d at 1275.
Standard of Review
Federal Rules of Civil Procedure require only that the
complaint provide “a short and plain statement of the
claim showing that the pleaser is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). However, the complaint must include
enough facts “to raise a right to relief above the
speculative level.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Pleadings that
contain nothing more than “a formulaic recitation of
the elements of a cause of action” do not meet Rule 8
standards, nor do pleadings suffice that are based merely
upon “labels and conclusions” or “naked
assertion[s]” without supporting factual allegations.
Twombly, 550 U.S. at 555, 557. In deciding a Rule
12(b)(6) motion to dismiss, courts view the allegations in
the complaint in the light most favorable to the non-moving
party. Watts v. Fla. Int'l. Univ., 495 F.3d
1289, 1295 (11th Cir. 2007).
survive a motion to dismiss, a complaint must “state a
claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570. “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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Although “[t]he plausibility standard is not akin to a
‘probability requirement, '” the complaint
must demonstrate “more than a sheer possibility that a
defendant has acted unlawfully.” Id. A
plausible claim for relief requires “enough fact[s] to
raise a reasonable expectation that discovery will reveal
evidence” to support the claim. Twombly, 550
U.S. at 556.
considering a motion to dismiss, a court should “1)
eliminate any allegations in the complaint that are merely
legal conclusions; and 2) where there are well-pleaded
factual allegations, ‘assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.'” Kivisto v. Miller, Candield,
Paddock & Stone, PLC, 413 Fed. App'x 136, 138
(11th Cir. 2011) (quoting Am. Dental Assn. v. Cigna
Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)). That task
is context specific and, to survive the motion, the
allegations must permit the court based on its
“judicial experience and common sense . . . to infer
more than the mere possibility of misconduct.”
Twombly, 550 U.S. at 556. Further, “courts may
infer from the factual allegations in the complaint
‘obvious alternative explanation[s], ' which
suggest lawful conduct rather than the unlawful conduct the
plaintiff would ask the court to infer.” Am.
Dental, 605 F.3d at 1290 (quoting Iqbal, 556
U.S. at 682). If the court determines that well-pleaded
facts, accepted as true, do not state a claim that is
plausible, the claims are due to be dismissed.
Twombly, 550 U.S. at 556.
Defendant Acton and Defendant IM Records argue that (1) all
of Plaintiffs' claims are due to be dismissed because
medical record requests by attorneys are not subject to the
fee restrictions imposed by HIPAA and the HITECH Act and (2)
Plaintiffs' misrepresentation claims, in particular,
are due to be dismissed because (a) Defendants never made an
actionable representation to Plaintiffs and (b) Plaintiffs
have not plausibly alleged their reliance on any such
representations. (Docs. # 14, 37). Defendant IM
Records also contends that Plaintiffs' claims
are improperly repackaged HIPAA claims for which no private
right of action exists. (Doc. # 14). The court evaluates each
of these arguments, in turn.
HIPAA and the HITECH Act Restrictions on Charges for Medical
RecordsApply to Individuals and