Stewart v. T-Mobile USA, Inc., C.A. No. 4:14–cv–02086–PMD.

• Citation: 124 F.Supp.3d 729
• Decision Date: 28 August 2015
• Docket Number: C.A. No. 4:14–cv–02086–PMD.
• Court: U.S. District Court — District of South Carolina
• Parties: Tiffany STEWART, Plaintiff, v. T–MOBILE USA, INC., Defendant.

124 F.Supp.3d 729

Tiffany STEWART, Plaintiff,

v.T–MOBILE USA, INC., Defendant.

C.A. No. 4:14–cv–02086–PMD.

United States District Court, D. South Carolina, Florence Division.

Signed Aug. 28, 2015.

Brian Joseph Headley, The Headley Law Firm, Mount Pleasant, SC, for Plaintiff.

Cherie Wilson Blackburn, Nexsen Pruet, Charleston, SC, Derin B. Dickerson, Kristine McAlister Brown, Alston and Bird, Atlanta, GA, for Defendant.

ORDER

PATRICK MICHAEL DUFFY, District Judge.

This matter is before the Court on Defendant T–Mobile USA, Inc.'s ("T–Mobile") Motion to Dismiss (ECF No. 24). For the reasons set forth herein, the Court denies T–Mobile's Motion to Dismiss.

BACKGROUND

On May 29, 2014, Plaintiff Tiffany Stewart ("Plaintiff") filed a one-count Complaint against T–Mobile, asserting violations of the Telephone Consumer Protection Act of 1991 ("TCPA"), 47 U.S.C. § 227. In her Complaint, Plaintiff alleges that T–Mobile called her cellular telephone on numerous occasions using an automatic telephone dialing system ("ATDS"), an artificial or prerecorded voice, or both. Plaintiff claims that when she answered the calls, she heard a prerecorded message that stated: "Brian Stewart, you have a past due bill in the amount of $109.00, press one (1) to speak with a live representative...." (Pl.'s Compl. ¶ 8.) Plaintiff asserts that she never provided T–Mobile her express consent to be contacted by an automated system or, in the alternative, that she revoked any such consent by demanding that T–Mobile cease calling her telephone. However, Plaintiff contends that the calls from T–Mobile nevertheless continued. Accordingly, Plaintiff seeks statutory damages of $500.00 for each negligent violation of the TCPA, as well as treble damages for every willful or knowing violation.

On July 16, 2014, T–Mobile filed a Motion to Dismiss and a Motion to Stay, both of which were accompanied by supporting memoranda. On October 8, 2014, the Court issued an Order staying this matter under the doctrine of primary jurisdiction pending the Federal Communications Commission's ("FCC") resolution of certain petitions related to the TCPA. In granting the Motion to Stay, the Court ordered the Parties to provide periodic updates on the status of the proceedings before the FCC. The Court deferred ruling on T–Mobile's Motion to Dismiss¹ pending FCC action and noted that it would set an appropriate schedule for further proceedings upon receipt and review of the requisite filings.

On July 10, 2015, the FCC released a Declaratory Ruling and Order ("FCC Order") addressing a number of requests for rulemaking, a ruling, or clarification regarding the TCPA, including the petitions cited by T–Mobile in its Motion to Stay and relied upon by the Court in its October 8, 2014 Order. See Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, FCC 15–72 (July 10, 2015). Shortly thereafter, on July 23, 2015, T–Mobile filed, as directed, a Status Report informing the Court of the FCC Order and attaching a copy of the same.

Upon receipt of the Status Report and review of the FCC Order, the Court deemed it necessary to revisit the stay imposed by on October 8, 2014. Because the FCC Order resolved the relevant TCPA petitions, the Court concluded that staying this litigation was no longer warranted or appropriate. Therefore, on July 31, 2015, the Court issued an Order lifting the stay and outlining the schedule for further proceedings.

In accordance with the schedule provided by the Court, T–Mobile filed the instant Motion to Dismiss on August 10, 2015, accompanied by a memorandum in support. T–Mobile argues that Plaintiff's one-count Complaint should be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a plausible claim for relief under the TCPA. Plaintiff filed a Response on August 21, 2015. Accordingly, this matter is now ripe for consideration.

STANDARD OF REVIEW

A motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted "challenges the legal sufficiency of a complaint." Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir.2009) (citations omitted); see also Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir.1992) ("A motion to dismiss under Rule 12(b)(6)... does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses."). To be legally sufficient a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2).

In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the Supreme Court "articulated a ‘two-pronged approach’ to assessing the sufficiency of a complaint." Robertson v. Sea Pines Real Estate Cos., 679 F.3d 278, 288 (4th Cir.2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). First, the complaint must "contain factual allegations in addition to legal conclusions." Id. Under Rule 8's pleading standard, "a formulaic recitation of the elements of a cause of action will not do," id. (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955 ), and " ‘naked assertion[s]’ devoid of ‘further factual enhancement’ " will not suffice, Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955 ). Second, the complaint must "contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Id. (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955 ). "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." Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ). More specifically, the complaint must demonstrate that the plaintiff's right to relief is more than a mere possibility, but it need not rise to the level of evincing a probability of success. Id. Accordingly, "[d]etermining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679, 129 S.Ct. 1937.

When ruling on a Rule 12(b)(6) motion to dismiss, the trial judge must accept as true all of the facts alleged in the plaintiff's complaint and construe all reasonable inferences in favor of the plaintiff. E.g., E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir.2011). The court must determine whether the allegations give rise to a plausible right to relief, Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 ; however, it should "not accept ‘legal conclusions couched as facts or unwarranted inferences, unreasonable conclusions, or arguments,’ " United States ex rel. Nathan v. Takeda Pharm. N. Am., Inc., 707 F.3d 451, 455 (4th Cir.2013) (quoting Wag More Dogs, LLC v. Cozart,

680 F.3d 359, 365 (4th Cir.2012) ); see also Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 ("[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions."). Thus, although the court must accept a plaintiff's well-pleaded factual allegations as true for purposes of ruling on the motion, the complaint must nevertheless satisfy the "two-pronged" test articulated by the Supreme Court. Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.

DISCUSSION

By way of the instant Motion to Dismiss, T–Mobile seeks to dismiss Plaintiff's Complaint because it does not allege "critical facts required to establish a plausible TCPA violation" but instead "merely recites the elements of a TCPA cause of action" and "alleges generally that T–Mobile violated the TCPA by doing that which the TCPA prohibits." (Def.'s Mem. in Supp. Mot. to Dismiss 1–2.) More specifically, T–Mobile insists that Plaintiff's Complaint is deficient because "Plaintiff does not identify the phone number T–Mobile allegedly called, the dates and times the calls were allegedly made, any circumstances that would support the inference that the calls were placed with an ATDS, or any other details that would suggest that a violation of the statute has occurred." (Id. at 4.) For the reasons detailed below, the Court rejects T–Mobile's arguments and concludes that Plaintiff has, in fact, stated a plausible claim for relief under the TCPA.

"The TCPA is a remedial statute that was passed to protect consumers from unwanted automated telephone calls." Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 271 (3d Cir.2013) ; see also Mey v. Monitronics Int'l, Inc., 959 F.Supp.2d 927, 930 (N.D.W.Va.2013) ("The TCPA is a remedial statute and thus entitled to a broad construction."). To this end, "the [TCPA] makes it unlawful to use an [ATDS] or an artificial or prerecorded voice message, without the prior express consent of the called party, to call any ... cellular telephone ... for which the receiver is charged for the call." Mims v. Arrow Fin. Servs., LLC, ––– U.S. ––––, 132 S.Ct. 740, 745, 181 L.Ed.2d 881 (2012) ; see 47 U.S.C. § 227(b)(1)(A). An ATDS means equipment that has the capacity both to store telephone numbers and to dial such numbers. 47 U.S.C. § 227(a)(1).

In the present case, the Court finds that Plaintiff has alleged sufficient facts, taken as true, to state a plausible claim for relief under the TCPA. Plaintiff alleges that T–Mobile called her cellular telephone numerous times "within the last year." (Pl.'s Compl. ¶ 6.) Plaintiff's Complaint also alleges that these telephone calls were made using an ATDS, a prerecorded voice, or both, and identifies the content of the prerecorded message. Further, Plaintiff asserts that she did not give T–Mobile her consent to be contacted in this manner or, in the alternative, that she expressly revoked any such consent on at least one occasion when she followed a prompt to speak with a live representative and requested that T–Mobile cease calling her cellular telephone. Thus, the Court...