Hogans v. Charter Commc'ns, Inc.

CourtUnited States District Courts. 4th Circuit. Eastern District of North Carolina
Citation563 F.Supp.3d 464
Docket Number5:20-CV-566-D
Parties Tiffanie HOGANS, individually and on behalf of all others similarly situated, Plaintiff, v. CHARTER COMMUNICATIONS, INC., d/b/a Spectrum, Defendant.
Decision Date24 September 2021

563 F.Supp.3d 464

Tiffanie HOGANS, individually and on behalf of all others similarly situated, Plaintiff,
CHARTER COMMUNICATIONS, INC., d/b/a Spectrum, Defendant.

No. 5:20-CV-566-D

United States District Court, E.D. North Carolina, Western Division.

Signed September 24, 2021

563 F.Supp.3d 469

Michael L. Greenwald, Greenwald Davidson Radbil PLLC, Boca Raton, FL, Alexander D. Kruzyk, Greenwald Davidson Radbil PLLC, Austin, TX, Wesley S. White, Law Offices of Wesley S. White, Charlotte, NC, for Plaintiff.

Elizabeth C. King, Cranfill Sumner & Hartzog LLP, Raleigh, NC, Ryan D. Watstein, Wargo & French LLP, Atlanta, GA, Paul A. Grammatico, Kabat Chapman & Ozmer LLP, Los Angeles, CA, for Defendant.


JAMES C. DEVER III, United States District Judge

On October 27, 2020, Tiffanie Hogans ("Hogans" or "plaintiff") filed a complaint

563 F.Supp.3d 470

against Charter Communications, Inc. ("Charter" or "defendant") alleging violations of the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227 ("TCPA") [D.E. 1]. Hogans also seeks class certification. See id. On January 11, 2021, Charter moved to dismiss the complaint and to strike Hogan's class allegations [D.E. 16] and filed a memorandum in support [D.E. 16-1]. On February 15, 2021, Hogans responded in opposition to Charter's motion [D.E. 19]. On March 8, 2021, Charter replied [D.E. 23]. As explained below, the Supreme Court's decision in Barr v. American Association of Political Consultants, Inc., ––– U.S. ––––, 140 S. Ct. 2335, 207 L.Ed.2d 784 (2020) [hereinafter AAPC ], does not expressly or effectively defeat Hogans's individual or putative class claims. Thus, the court denies Charter's motion to dismiss and denies Charter's motion to strike Hogans's class allegations.


Hogans is a resident of Fayetteville, North Carolina. See Compl. [D.E. 1] ¶ 6. Charter is a telecommunications and mass media corporation headquartered in Stamford, Connecticut. See id. ¶ 7. Charter offers its services in North Carolina under the "Spectrum" brand. See id. ¶ 8.

In January 2020, Hogans obtained a new cell phone number. See id. ¶ 9. About the same time, Hogans began receiving unsolicited calls and voice mail messages from Charter, though she is not a Charter customer. See id. ¶¶ 11–22, 31; [D.E. 19] 13 n.4. The calls came from various numbers. See Compl. ¶¶ 12, 14. Some, if not all, of the calls and voice mail messages were intended for a recipient other than Hogans. See id. ¶¶ 18–19. Hogans attempted to return Charter's calls to explain that the calls were made to a wrong number, but she was unable to speak with a Charter representative. See id. ¶¶ 20–22.

Additionally, Hogans received numerous text messages from Charter. See id. ¶¶ 11, 23–26; Ex. A [D.E. 1-1]. Hogans twice replied "STOP" to these text messages and both times received a reply text message confirming she would receive no further text messages. See Compl. ¶¶ 23, 26. However, Hogans received additional text messages. See id. ¶¶ 25, 27. In total, Hogans received approximately 50 phone calls, 50 text messages, and 10 voice mail messages. See id. ¶ 27. Hogans seeks relief for herself for the time period beginning in January 2020. See id. ¶¶ 9–48, 80–84. Hogans seeks to represent and obtain relief for three classes for the time period from October 26, 2016, through the date of class certification. See id. ¶¶ 49–84.

On October 27, 2020, Hogans filed suit against Charter alleging TCPA violations. See id. ¶¶ 80–84. Charter seeks dismissal under Federal Rules of Civil Procedure 12(b)(1)and 12(b)(6) and moves to strike Hogans's class allegations. See [D.E. 16]. Hogans opposes Charter's motion. See [D.E. 19].


A motion to dismiss under Rule 12(b)(1) tests subject-matter jurisdiction, which is the court's "statutory or constitutional power to adjudicate the case." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (emphasis omitted); see Holloway v. Pagan River Dockside Seafood, Inc., 669 F.3d 448, 453 (4th Cir. 2012) ; Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 479–80 (4th Cir. 2005). A federal court "must determine that it has subject-matter jurisdiction over the case before it can pass on the merits of that case." Constantine, 411 F.3d at 479–80. "[T]he party invoking federal jurisdiction bears the burden of establishing its existence."

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Steel Co., 523 U.S. at 104, 118 S.Ct. 1003 ; see Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). In considering a motion to dismiss for lack of subject-matter jurisdiction, the court may consider evidence outside the pleadings without converting the motion into one for summary judgment See, e.g., Richmond, Fredericksburg & Potomac R.R. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).

A motion to dismiss under Rule 12(b)(6) tests the complaint's legal and factual sufficiency. See Ashcroft v. Iqbal, 556 U.S. 662, 677–80, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554–63, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 566 U.S. 30, 132 S.Ct. 1327, 182 L.Ed.2d 296 (2012) ; Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). To withstand a Rule 12(b)(6) motion, a pleading "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quotation omitted); see Twombly, 550 U.S. at 570, 127 S.Ct. 1955 ; Giarratano, 521 F.3d at 302. In considering the motion, the court must construe the facts and reasonable inferences "in the light most favorable to [the nonmoving party]." Massey v. Ojaniit, 759 F.3d 343, 352 (4th Cir. 2014) (quotation omitted); see Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013), abrogated on other grounds by Reed v. Town of Gilbert, 576 U.S. 155, 135 S.Ct. 2218, 192 L.Ed.2d 236 (2015). A court need not accept as true a complaint's legal conclusions, "unwarranted inferences, unreasonable conclusions, or arguments." Giarratano, 521 F.3d at 302 (quotation omitted); see Iqbal, 556 U.S. at 678–79, 129 S.Ct. 1937. Rather, a plaintiff's factual allegations must "nudge[ ] [her] claims, Twombly, 550 U.S. at 570, 127 S.Ct. 1955, beyond the realm of "mere possibility" into "plausibility." Iqbal, 556 U.S. at 678–79, 129 S.Ct. 1937.

When evaluating a motion to dismiss, a court considers the pleadings and any materials "attached or incorporated into the complaint." E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011) ; see Fed. R. Civ. P. 10(c) ; Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165–66 (4th Cir. 2016) ; Thompson v. Greene, 427 F.3d 263, 268 (4th Cir. 2005). A court may also consider a document submitted by a moving party if it is "integral to the complaint and there is no dispute about the document's authenticity" without converting the motion into one for summary judgment. Goines, 822 F.3d at 166. "[I]n the event of conflict between the bare allegations of the complaint and any exhibit attached ..., the exhibit prevails." Fayetteville Invs. v. Com. Builders, Inc., 936 F.2d 1462, 1465 (4th Cir. 1991). A court may also consider "matters of which a court may take judicial notice." Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) ; see Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).

The court must also address Hogans's class allegations. A plaintiff seeking class certification under Federal Rule of Civil Procedure 23 must first satisfy Rule 23(a) ’s prerequisites. Under Rule 23(a), class certification is appropriate if:

(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.

Fed. R. Civ. P. 23(a). If a plaintiff has satisfied the Rule 23(a) prerequisites, the plaintiff then also must show that "class

563 F.Supp.3d 472

certification is proper under one of the subdivisions of Rule 23(b)." McLaurin v. Prestage Foods, Inc., 271 F.R.D. 465, 475 (E.D.N.C. 2010) ; see Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). The party seeking class certification bears the burden of proof. See Lienhart v. Dryvit Sys., Inc., 255 F.3d 138, 146 (4th Cir. 2001) ; McLaurin, 271 F.R.D. at 475.

A motion to dismiss a complaint's class allegations should be granted when it is clear from the face of the complaint that the plaintiff cannot meet Rule 23 ’s requirements for certification because the plaintiff has failed to properly allege facts sufficient for a class. See Bigelow v. Syneos Health, LLC, No. 5:20-CV-28-D, 2020 WL 5078770, at *4 (E.D.N.C. Aug. 27, 2020) (unpublished); Williams v. Potomac Fam. Dining Grp. Operating Co., No. GJH-19-1780, 2019 WL 5309628, at *5 (D. Md. Oct. 21, 2019) (unpublished). Generally, however, courts do not...

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    ...allege facts sufficient to make out a class or could establish no facts to make out a class.” Hogans v. Charter Commc'ns, Inc., 563 F.Supp.3d 464, 483 (E.D. N.C. 2021). In this case, striking or dismissing plaintiff's class action allegations is improper, where it is not clear from the comp......
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