Kapp v. E. Wis. Water Conditioning Co.
| Decision Date | 13 January 2021 |
| Docket Number | Case No. 20-CV-286 |
| Parties | AARON KAPP, individually and on behalf of all others similarly situated, Plaintiff, v. EASTERN WISCONSIN WATER CONDITIONING CO and UNCO DATA SYSTEMS INC, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Plaintiff Aaron Kapp has filed a class action complaint alleging that Defendant Unco Data Systems, Inc., an agent of Defendant Eastern Wisconsin Water Conditioning Co., made prerecorded telemarketing calls to him (and other class members) without his prior written consent, in violation of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227. Defendants have moved to partially dismiss Kapp's Third Amended Complaint or, in the alternative, to strike certain allegations contained therein. All parties have consented to the jurisdiction of a magistrate judge under 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73(b). (See ECF Nos. 98, 99.) The motion is fully briefed and ready for resolution.
After this matter was transferred to this court from the Northern District of Illinois, Kapp filed a Third Amended Class Action Complaint (ECF No. 115) that contains the following allegations. Eastern Wisconsin Water Conditioning Co. is a Minnesota Corporation that does business in Wisconsin under the name "Culligan Water Conditioning of Waukesha, Wisconsin" and that operates a local dealer in Waukesha. (See ECF No. 115, ¶¶ 9-10.) Unco Data Systems, Inc., is a professional software and technology company that provides services, such as telephone advertising, to the water industry, including Eastern Wisconsin Water. (Id., ¶ 12.) As part of its services, Unco transmits phone calls and leaves prerecorded messages on behalf of Eastern Wisconsin Water that provide a call-back number for Eastern Wisconsin Water's local dealer. (Id., ¶ 13.)
Aaron Kapp, a Wisconsin citizen residing in Wauwatosa, purchased a home that had a Culligan water filtration system already installed. (See ECF No. 115, ¶¶ 8, 31.) Soon after purchasing the home, Kapp scheduled a maintenance inspection of his Culligan water filtration system with Eastern Wisconsin Water's Waukesha dealer. (Id., ¶ 32.) As part of the maintenance inspection Kapp provided the Waukesha dealer with his home telephone number. (Id., ¶ 33.) However, Kapp did not sign any written agreement consenting to receive calls using a prerecorded voice from the Waukesha dealer or its affiliates. (Id.) A few years after purchasing the home, Kapp discontinued the home water filtration service. (Id., ¶ 35.)
Despite discontinuing his filtration service, Kapp continued to receive prerecorded calls from Unco to his home landline that left the phone number for Eastern Wisconsin Water's Waukesha dealer. (See ECF No. 115, ¶¶ 3, 37-43.) For example, on July 8, 2018, Kapp received the following prerecorded voice message:
I am calling from Culligan to let you know this is the final reminder to schedule the required maintenance on your drinking water system. Maintenance is critical in extending the life of your system plus provides the high-quality drinking water you have grown to know and trust from Culligan. Please call us as soon as possible to schedule the required maintenance with one of our certified technicians. You can reach our local office at (262) 547-1862. Again, the number is (262) 547-1862. Press star if you would like to listen to this message again. Thank you for trusting Culligan with your water needs.
(Id., ¶ 38.) The prerecorded message did not include an opt-out mechanism or provide a toll-free number that permitted Kapp to make a do-not-call request. (Id., ¶¶ 44, 50 (citing 47 C.F.R. § 64.1200(b)).)
Kapp received similar, if not identical, telephone calls in prior years after discontinuing the water filtration system at his home. (See ECF No. 115, ¶ 45.) On at least one occasion Kapp called the number listed in the message and asked to be removed from the call list. (Id.) He was advised that only "corporate" could remove his number. (Id.) Despite asking to be removed from the call list Kapp continued to receive calls to his landline from Unco using a prerecorded voice to deliver messages with a "final reminder" to schedule "required maintenance" on his drinking water system. (Id., ¶ 46.)
The Third Amended Complaint alleges a single violation of the TCPA. (See ECF No. 115, ¶¶ 68-91.) Specifically, the Third Amended Complaint alleges, "Defendants initiated, or caused the initiation of, telephone calls that introduced an advertisement or constituted telemarketing without the prior express written consent of the called party and for no emergency purpose in violation of 47 U.S.C. § 227." (Id., ¶ 70.) The Third Amended Complaint further alleges, "Defendants' prerecorded or artificial voice messages failed to clearly state the identity that was responsible for initiating the calls" and "did not provide any telephone number in the message permitting a do-not-call request during regular business hours." (Id., ¶¶ 85-86.) In addition to statutory damages the Third Amended Complaint seeks treble damages under 47 U.S.C. § 227(b)(3)(C) for the defendants' alleged "willful or knowing" violation of the TCPA. (See id., ¶¶ 79-81, 89.)
On August 26, 2020, the defendants filed a motion for partial dismissal of the Third Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6). (See ECF No. 117.) Alternatively, they seek to strike certain allegations in the Third Amended Complaint pursuant to Fed. R. Civ. P. 12(f). (See id.)
"[T]he TCPA . . . represents Congress's attempts to address . . . concerns about the deleterious effects of telemarketing and telephone solicitations, particularly automated calls." Patriotic Veterans, Inc. v. Indiana, 736 F.3d 1041, 1045 (7th Cir. 2013) (citing S. Rep. No. 102-178, reprinted in 1991 U.S.C.C.A.N. 1968). Relevant here, the TCPA "prohibits callsto a residential telephone line using an artificial or prerecorded voice without the recipient's prior express consent, 'unless the call is initiated for emergency purposes or is exempted by rule or order by the [Federal Communications] Commission under paragraph 2(B).'" Patriotic Veterans, 736 F.3d at 1045 (quoting 47 U.S.C. § 227(b)(1)(B)). "The statute provides a private right of action to collect either actual damages or $500 per violation in statutory damages." Brodsky v. HumanaDental Ins. Co., 910 F.3d 285, 291 (7th Cir. 2018) (citing 47 U.S.C. § 227(b)(3)(B)). "These amounts are trebled for willful violations." Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637, 639 (7th Cir. 2012).
The TCPA also prohibits calls using an automatic telephone dialing system "that do[] not comply with the technical and procedural standards prescribed" in the Act. See 47 U.S.C. § 227(d)(1)(A). Pursuant to 47 U.S.C. § 227(d)(3), the Federal Communications Commission issued regulations outlining these technical and procedural standards. With respect to automated messages, the implementing regulations require that all artificial or prerecorded voice telephone messages shall:
The defendants move to partially dismiss the Third Amended Complaint for failure to state a claim upon which relief can be granted or, alternatively, to strike allegations in the Third Amended Complaint related to 47 C.F.R. § 64.1200(b) as immaterial and impertinent.
According to Fed. R. Civ. P. 8(a)(2), "[a] pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief." A motion to dismiss under Fed. R. Civ. P. 12(b)(6) "challenges the sufficiency of the complaint to state a claim upon which relief may be granted." Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). "To survive a motion to dismiss, a complaint must 'state a claim to relief that is plausible on its face.'" Zemeckis v. Global Credit & Collect. Corp., 679 F.3d 632, 634-35 (7th Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). "A claim satisfies this pleading standard when its factual allegations 'raise a right to relief above the speculative level.'" Zemeckis, 679 F.3d at 635(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). When analyzing a motion to dismiss pursuant to Rule 12(b)(6), courts must "accept as true all well-pleaded factual allegations and draw all reasonable inferences in favor of the plaintiff." Johnson v. Enhanced Recovery Co., 961 F.3d 975, 980 (7th Cir. 2020) (citing Heredia v. Capital Mgmt. Servs., L.P., 942 F.3d 811, 814 (7th Cir. 2019)).
The defendants argue that the Third Amended Complaint should be dismissed to the extent it added allegations relating to 47 C.F.R. § 64.1200(b) because those...
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