Carmouche v. A1 Diabetes & Med. Supply, Inc.

• Decision Date: 16 February 2022
• Docket Number: Case No. 2:21-cv-02557-JPM-atc
• Parties: Tuwanna CARMOUCHE, individually, and on behalf of all others similarly situated, Plaintiff, v. A1 DIABETES & MEDICAL SUPPLY, INC., Defendant.
• Court: U.S. District Court — Western District of Tennessee

586 F.Supp.3d 795

Tuwanna CARMOUCHE, individually, and on behalf of all others similarly situated, Plaintiff,
v.
A1 DIABETES & MEDICAL SUPPLY, INC., Defendant.

Case No. 2:21-cv-02557-JPM-atc

United States District Court, W.D. Tennessee, Western Division.

Signed February 16, 2022

586 F.Supp.3d 797

Aaron David Radbil, The Law Office of Craig J. Ehrlich, LLC, Atlanta, GA, for Plaintiff.

Robert F. Tom, Walter Preston Battle, IV, Zachary A. Kisber, Baker Donelson Bearman Caldwell & Berkowitz PC, Memphis, TN, for Defendant.

ORDER DENYING DEFENDANT'S MOTION TO DISMISS AND DENYING IN PART AND GRANTING IN PART DEFENDANT'S MOTION TO STRIKE CLASS ALLEGATIONS WITH PREJUDICE

JON P. McCALLA, UNITED STATES DISTRICT JUDGE

Before the Court is Defendant A1 Diabetes & Medical Supply, Inc.’s ("A1") Motion to Dismiss and/or Strike Class Allegations with Prejudice, filed on October 26, 2021. (ECF No. 19.) For the reasons discussed below, Defendant's Motion is DENIED IN PART and GRANTED IN PART .

I. BACKGROUND

a. Factual History and Assertions

Plaintiff Tuwanna Carmouche ("Ms. Carmouche") filed a Complaint alleging that A1 "routinely violated 47 U.S.C. § 227(b)(1)(A)(iii) by placing non-emergency calls using an artificial or prerecorded voice message to telephone numbers assigned to a cellular telephone service without prior express consent." (Compl., ECF No. 1 ¶ 2.) On occasions where Ms. Carmouche did not answer the phone, she alleges that the following message was left: "... to confirm your shipment. If it is more convenient, you may refill online at A1diabetes.com/refill. Again, please call us at 855-932-0599 to confirm your shipment. Or you may refill online at A1diabetes.com/refill. Thank you." (Id. ¶ 18.) Plaintiff alleges that A1 left these voicemail messages on her cellular phone after "Plaintiff informed Defendant that she was not diabetic, informed Defendant that she previously requested on a number of occasions that Defendant stop placing calls to her cellular telephone number, informed Defendant that it reached a wrong number, and instructed Defendant to stop placing calls to her cellular telephone number." (Id. ¶ 20.) In her Complaint, Ms. Carmouche contends that she is representative of the following classes brought under Federal Rule of Civil Procedure 23 :

A. All persons and entities throughout the United States (1) to whom A1 Diabetes & Medical Supply, Inc. placed, or caused to be placed, a call directed to a number assigned to a cellular telephone service, but not assigned to an A1 Diabetes & Medical Supply, Inc. customer, (2) by using an artificial or prerecorded voice, (3) from four years preceding the date of this class action complaint through the date of class certification.

586 F.Supp.3d 798

B. All persons and entities throughout the United States (1) to whom A1 Diabetes & Medical Supply, Inc. placed, or caused to be placed, a call directed to a number assigned to a cellular telephone service, (2) by using an artificial or prerecorded voice, (3) after the party informed A1 Diabetes & Medical Supply, Inc. that the telephone number it called was a wrong or reassigned telephone number, or instructed A1 Diabetes & Medical Supply, Inc. that the telephone number it called was a wrong or reassigned telephone number, or instructed A1 Diabetes & Medical Supply, Inc. to stop placing calls to the telephone number, (4) from four years preceding the date of this class action complaint through the date of class certification.

(Id. ¶ 36.)

b. Procedural Background

Defendant A1 filed a Motion to Dismiss and/or Strike Class Allegations with Prejudice on October 26, 2021. (ECF No. 19.) A1 also filed a Memorandum in Support. (ECF No. 19-1.) Ms. Carmouche filed a Response in Opposition on November 30, 2021. (ECF No. 24.) A1 filed a Reply on December 14, 2021. (ECF No. 25.) The Court held a hearing on December 20, 2021. (ECF No. 27.) Ms. Carmouche filed a Notice of Supplemental Authority in Support of Her Response on January 18, 2022. (ECF No. 28.) A1 filed a Response to the Notice on January 21, 2022. (ECF No. 29.)

II. LEGAL STANDARD

a. Motion to Dismiss

Federal Rule of Civil Procedure 12(b)(6) allows dismissal of a complaint that "fail[s] to state a claim upon which relief can be granted." A Rule 12(b)(6) motion permits the "defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true." Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993) (citing Nishiyama v. Dickson Cty., 814 F.2d 277, 279 (6th Cir. 1987) ). A motion to dismiss only tests whether the plaintiff has pleaded a cognizable claim and allows the court to dismiss meritless cases which would waste judicial resources and result in unnecessary discovery. Brown v. City of Memphis, 440 F. Supp. 2d 868, 872 (W.D. Tenn. 2006).

When evaluating a motion to dismiss for failure to state a claim, the Court must determine whether the complaint alleges "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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). If a court decides that the claim is not plausible, the case may be dismissed at the pleading stage. Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. "[A] formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S.Ct. 1955. The "[f]actual allegations must be enough to raise a right to relief above [a] speculative level." Ass'n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 548 (6th Cir. 2007) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955 ). A claim is plausible on its face if "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ). A complaint need not contain detailed factual allegations. Twombly, 550 U.S. at 570, 127 S.Ct. 1955. A plaintiff without facts who is "armed with nothing more than conclusions," however, cannot "unlock the doors of discovery." Iqbal, 556 U.S. at 678–79, 129 S.Ct. 1937 ;

586 F.Supp.3d 799

Green v. Mut. of Omaha Ins. Co., No. 10-2487, 2011 WL 112735, at *3 (W.D. Tenn. Jan. 13, 2011), aff'd 481 F. App'x 252 (6th Cir. 2012).

b. Motion to Strike

"The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). "Although courts generally defer ruling on class certification until discovery on the certification issue is complete ..., nothing in Rule 23 prevents a defendant from attempting to preemptively deny certification on the grounds that Rule 23(a) and (b) can never be satisfied." Schilling v. Kenton Cty., Ky., No. 10-143-DLB, 2011 WL 293759, at *4 (E.D. Ky. Jan. 27, 2011) (internal quotations omitted). "The court should defer decision on certification pending discovery if the existing record is inadequate for resolving the relevant issues." In re Am. Med. Sys., 75 F.3d 1069, 1086 (6th Cir. 1996) (internal quotations omitted).

III. ANALYSIS

a. Motion to Dismiss

A1 contends that "Plaintiff's claim fails as a matter of law because A1's alleged prerecorded voicemails to Plaintiff fall within the emergency purposes exception of the TCPA and therefore ‘fall outside the TCPA's consent framework.’ " (ECF No. 19-1 at PageID 69.) (quoting ACA Int'l v. Fed. Commc'ns Comm'n, 885 F.3d 687, 714 (D.C. Cir. 2018).) A1 contends that "[t]he emergency purposes exception remains applicable even where calls are made to wrong or reassigned numbers." (Id. at PageID 71.) A1 contends that it "is a healthcare provider[,] and its calls are informational and directly related to the imminent health and safety risk posed from depleted medical supplies, particularly in light of COVID-19." (Id. at PageID 74.) A1 contends that "the content of A1's alleged prerecorded voice messages makes clear that...