Burdge v. Ass'n Health Care Mgmt. Inc
| Decision Date | 02 February 2011 |
| Docket Number | NO. 1:10-CV-00100,1:10-CV-00100 |
| Parties | NATHANIEL E. BURDGE, et al., Plaintiffs, v. ASSOCIATION HEALTH CARE MANAGEMENT, INC., Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
This matter is before the Court on Defendant's Motion to Dismiss for Failure to State a Claim and Lack of Subject Matter Jurisdiction (doc. 5), Plaintiffs' Response in Opposition (doc. 12), and Defendant's Reply (doc. 15), as well as Defendant's Motion for Sanctions (doc. 6), Plaintiffs' Response in Opposition (doc. 11), and Defendant's Reply (doc. 14). For the reasons indicated herein, the Court GRANTS Defendant's Motion to Dismiss in part and DENIES it in part (doc. 5) and DENIES Defendant's Motion for Sanctions (doc. 6).
Plaintiffs bring this action under the Telephone Consumer Protection Act, 47 U.S.C. § 227 (the "TCPA"), the Ohio Consumer Sales Practices Act, O.R.C. § 1345.02(A) (the "Ohio CSPA") and the associated regulations (doc. 2). They assert that the Court has both diversity and federal question jurisdiction (Id.). Thisaction arises out of telemarketing telephone calls made by or on behalf of Defendant to Plaintiffs, where Defendant called without Plaintiffs' prior consent; failed to state the name of the caller; failed to state the caller's telephone number or address; failed to train the caller's live representative in the maintenance and use of its do-not-call list; failed to state, within the first 60 seconds of the call, that the purpose of the call was to effect a sale; failed to state at the beginning of the call and before making any other statement to or asking any question of Plaintiffs that the caller was soliciting a sale; acted as a telephone solicitor without first having obtained a certificate of registration from the Ohio Attorney General and without first having obtained a surety bond; used a fictitious name that was not properly registered with the Ohio Secretary of State; failed to maintain a record of Plaintiffs' earlier request that the caller place Plaintiffs on the do-not-call list; and/or failed to transmit accurate Caller ID information that would have allowed Plaintiffs to make a do-not-call request (Id.). Plaintiffs specifically point to calls made on the following dates: (1) January 11, 2006; (2) March 2 9, 200 6; (3) September 8, 2 006; (4) September 25, 2006; (5) November 7, 2006; (6) January 30, 2007; (7) April 12, 2007; (8) May 7, 2007; (9) May 29, 2007; and (10) January 16, 2008 (Id.). The Court will delve into the specifics of each count as necessary in its opinion below.
Defendant has moved to dismiss the complaint for failure to state a claim and for lack of subject matter jurisdiction (doc. 5). In addition, Defendant moves the Court to impose sanctions on Plaintiffs on the basis that the instant action is frivolous in light of the Court's prior ruling in case number 1:08-CV-509, a case filed by Plaintiffs based on the phone calls at issue here which was dismissed without prejudice by the Court for failure to meet the amount-in-controversy requirement of at least $75,000 (Id.). The motions are ripe and ready for the Court's consideration.
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) requires the Court to determine whether a cognizable claim has been pled in the complaint. The basic federal pleading requirement is contained in Fed. R. Civ. P. 8(a), which requires that a pleading "contain... a short and plain statement of the claim showing that the pleader is entitled to relief." Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir. 1976); Erickson v. Pardus, 551 U.S. 89 (2007). In its scrutiny of the complaint, the Court must construe all well-pleaded facts liberally in favor of the party opposing the motion. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A complaint survives a motion to dismiss if it "contain[s] sufficient factual matter, accepted as true, to statea claim to relief that is plausible on its face." Courie v. Alcoa Wheel & Forged Products, 577 F.3d 625, 629-30 (6th Cir. 2009), quoting Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
A motion to dismiss is therefore a vehicle to screen out those cases that are impossible as well as those that are implausible. Courie, 577 F.3d at 629-30, citing Robert G. Bone, Twombly, Pleading Rules, and the Regulation of Court Access, 94 IOWA L. REV. 873, 887-90 (2009). A claim is facially plausible when the plaintiff pleads facts that allow the court to draw the reasonable inference that the defendant is liable for the conduct alleged. Iqbal, 129 S.Ct. at 1949. Plausibility falls somewhere between probability and possibility. Id., citing Twombly, 550 U.S. at 557. As the Supreme Court explained,
The admonishment to construe the plaintiff's claim liberally when evaluating a motion to dismiss does not relieve a plaintiff of his obligation to satisfy federal notice pleading requirements and allege more than bare assertions of legal conclusions. Wright, Miller & Cooper, Federal Practice and Procedure: § 1357 at 596 (1969). "In practice, a complaint... must contain either direct or inferential allegations respecting all of the material elements [in order] to sustain a recovery under some viable legal theory." Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984), quoting In Re: Plywood Antitrust Litigation, 655 F.2d 627, 641 (5th Cir. 1981); Wright, Miller & Cooper, Federal Practice and Procedure, § 1216 at 121-23 (1969). The United States Court of Appeals for the Sixth Circuit clarified the threshold set for a Rule 12(b)(6) dismissal:
[W]e are not holding the pleader to an impossibly high standard; we recognize the policies behind Rule 8 and the concept of notice pleading. A plaintiff will not be thrown out of court for failing to plead facts in support of every arcane element of his claim. But when a complaint omits facts that, if they existed, would clearly dominate the case, it seems fair to assume that those facts do not exist.
Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 437 (6th Cir. 1988).
As to the motion to dismiss for lack of subject matter jurisdiction, Plaintiffs bear the burden of showing, by a preponderance of the evidence, that this Court has jurisdiction. See Fed. R. Civ. Pro. 12(b)(1); Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915 (6th Cir. 2986). In contrast to a motion to dismiss made pursuant to 12(b)(6), the Court is empowered to resolve factual disputes when deciding a motion under 12(b)(1). (Id.).
Defendant contends that Counts 3-6 must be dismissed because they are not privately enforceable. Specifically, Defendant argues that 47 C.F.R. § 64.1200(d)(4) does not provide for a private cause of action and that the proper remedy is a suit by the state attorney general.
Section 64.1200(d)(4) of title 47 of the Code of Federal Regulations provides, "A person or entity making a call for telemarketing purposes must provide the called party with the name of the individual caller, the name of the person or entity on whose behalf the call is being made, and a telephone number or address at which the person or entity may be contacted."
At base, the question is whether an action for a violation of 64.1200(d)(4) arises under 47 U.S.C. § 227(d) or (b), which boils down to a question of whether the failure of an entity to identify itself and provide its address and phone number is a "technical and procedural" violation. The Court finds that it is such a violation. Section 227(d) reads, in relevant part:
The Commission shall prescribe technical and procedural standards for systems that are used to transmit any artificial or prerecorded voice message via telephone. Such standards shall require that--
(A) all artificial or prerecorded telephone messages (i) shall, at the beginning of the message, state clearly the identity of the business, individual, or other entity initiating the call, and (ii) shall, during or after the message, state clearly the telephone number or address of such business, other entity, or individual.
In contrast, in relevant part, Section 227(b) places restrictions on the use of automated telephone equipment and makes it unlawful for anyone to make a call to a residential line using an artificial or prerecorded voice without the prior express consent of the called party. Nothing in subsection (b) addresses the failure to identify the entity or provide the phone number or address of the calling party. Subsection (b), unlike subsection (d), explicitly provides for a private right of action. 47 U.S.C. § 227(b)(3). See also, Burdge v. Association Health Care Management, Inc., 2009 WL 414595 (S.D. Ohio, February 18, 2009).
Plaintiffs assert that the Court's prior decision regarding the existence of a private right of action is not binding on this case, which is arguably true but misses the point. Plaintiffs have provided no compelling legal or factual reason why the Court should upend its previous conclusion. Neither the statute nor the regulations have changed since the Court's 2009 decision. Plaintiffs contend that they have discovered "new support" for their position that the identification regulations were issued under subsection (b) and not subsection (d). This new...
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