Bennett v. Boyd Gaming Corporation

Filing 54

ORDER denying 46 Motion to Dismiss; granting the Motion to Strike the Second Amended Complaint; denying as moot the Motion to Strike the Class Allegations. The second amended complaint is stricken. Signed by Chief Judge William H. Steele on 5/6/2015. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JASON BENNETT, etc.,

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)
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) CIVIL ACTION 14-0330-WS-M
)
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)
)

Plaintiff,
v.
BOYD BILOXI, LLC, etc.,
Defendant.

ORDER
This matter is before the Court on the defendant’s motion to dismiss the
second amended complaint or, in the alternative, to strike the second amended
complaint or the class allegations. (Doc. 46). The parties have filed briefs in
support of their respective positions, (Docs. 47, 51, 52), and the motion is ripe for
resolution. After careful consideration, the Court concludes that the motion to
dismiss is due to be denied and that the alternative motion to strike is due to be
granted in part and denied in part.
BACKGROUND
According to the second amended complaint, (Doc. 44), the plaintiff
received a number of pre-recorded telephone messages from the defendant. Most
of them were substantively identical to the following sample:
Hello, this is IP Casino, Resort and Spa calling to invite you
to enjoy 2 free tickets to see the Kenny Wayne Shepherd Band. If
you wish to opt-out of future calls, please dial 877-388-5999 and
mention the opt out number 5822. Jason Bennett, join us and enjoy
2 free tickets to see the Kenny Wayne Shepherd Band on Saturday,
July 5th. Tickets are limited so reserve your tickets today. To take
advantage of this great offer now, please call 1-888-946-2847 x
5152 and have your BConnected card ready to reserve your ticket,
or visit BConnected online to view all of your offers. Thank you

and we look forward to your visit here at IP Casino, Resort and
Spa.
(Id. at 5). Count One alleges that these calls violated the Telephone Consumer
Protection Act (“the Act”), and Count Two alleges the violations were knowing
and/or willful so as to trigger heightened penalties under the Act. (Id. at 10-11).
The second amended complaint also seeks certification of a class action.
The defendant argues that its calls did not violate the Act. Should this
argument fail, the defendant asks that the second amended complaint be stricken
because it differs from the pleading which the plaintiff received permission to file.
Should that argument fail, the defendant requests the Court to dismiss or strike the
class allegations.
DISCUSSION
I. Motion to Dismiss.
The motion to dismiss is brought pursuant to Rule 12(b)(6). (Doc. 46).1
“A defendant bears at least the initial burden of demonstrating that it is entitled to
dismissal under Rule 12(b)(6).” Gailes v. Marengo County Sheriff’s Department,
916 F. Supp. 2d 1238 (S.D. Ala. 2013); accord Smith v. Seaport Marine, Inc., 919
F. Supp. 2d 11267, 1275 n.9 (S.D. Ala. 2013).
Although the defendant denies that the second amended complaint satisfies
Bell Atlantic Corp. v. Twombly, 550 U.S. 444 (2007), (Doc. 47 at 2-3), it does not
present a genuine Twombly argument. The defendant does not argue, as under
Twombly, that the second amended complaint is nominally consistent with liability
but that the plaintiff should have pleaded additional facts in order to move
potential liability from the merely possible to the plausible. 550 U.S. at 557, 570.
Instead, the defendant argues that the facts the plaintiff has pleaded are
inconsistent with liability under the Act. This argument implicates the principle
1

The motion also invokes Rule 12(b)(1), but the defendant suggests no defect in
subject matter jurisdiction.
2

that “[d]ismissal is appropriate when, on the basis of a dispositive issue of law, no
construction of the factual allegations will support the cause of action.” D.P. ex
rel. E.P. v. School Board, 483 F.3d 725, 728-29 (11th Cir. 2007) (internal quotes
omitted).
The parties agree that Congress, through the Act, delegated much authority
for its implementation to the Federal Communications Commission (“FCC”).
They agree that the FCC’s implementing regulations, as relevant here, prohibit
covered entities from “[i]nitiat[ing], or caus[ing] to be initiated, any telephone call
that includes or introduces an advertisement or constitutes telemarketing, using an
automatic telephone dialing system or an artificial or prerecorded voice, … other
than a call made with the prior express written consent of the called party.” 47
C.F.R. § 64.1200(a)(2).2 And they agree, at least for purposes of this motion, that
the defendant is a covered entity, that the calls at issue utilized a prerecorded
voice, and that the plaintiff had not previously given express written consent to
receive such calls. The question is whether the defendant has carried its burden of
showing, as a matter of law, that the calls constituted neither “telemarketing” nor
“advertisement.”3
The FCC defines “advertisement” as “any material advertising the
commercial availability or quality of any property, goods, or services.” 47 C.F.R.
§ 64.1200(f)(1). The FCC defines “telemarketing” as “the initiation of a telephone
call or message for the purpose of encouraging the purchase or rental of, or
investment in, property, goods, or services, which is transmitted to any person.”
Id. § 64.1200(f)(12).
The defendant fails to address in any fashion the express allegation of the
second amended complaint that the calls meet the FCC’s definition of

2

(Doc. 44 at 3; Doc. 47 at 4-5).

3

The second amended complaint alleges they are either or both. (Doc. 44 at 3, 5).

3

“advertisement.” The defendant has therefore failed to carry its initial burden on
motion to dismiss, which must to that extent be denied.4
As for “telemarketing,” the defendant argues that the calls at issue “sought
only to provide complimentary tickets to the Plaintiff.” (Doc. 47 at 9). The
plaintiff “was simply informed of his two free tickets to events at IP Biloxi.” (Id.
at 8). The defendant asks the Court to employ “common sense” to reach the
conclusion that its calls “did not encourage the Plaintiff to engage in future
commercial transactions with” the defendant. (Id. at 9).
Had its emissary merely notified the plaintiff he was entitled to free tickets
and then stopped talking, the defendant might have an argument. But the voice
went on, suggesting that the plaintiff “visit BConnected online to view all of your
offers.” The second amended complaint alleges that this site “offered discounts on
room reservations, coupons/discounts for food purchases,” as well as ostensibly
“free play” on the casino floor. (Doc. 44 at 5-6). That is, the online “offers,” or at
least some of them, were offers to sell – not to give away with no strings attached
– various goods and services. The defendant’s calls patently encouraged the
plaintiff to visit this site and see what goods and services the defendant had for
sale. None of the four cases on which the defendant relies support the proposition
4

In its reply brief, the defendant insists that “the messages sent to Plaintiff did not
discuss the commercial availability or quality of any property, goods, or services.” (Doc.
52 at 5). Although the defendant says it made this argument in its principal brief, (id.), it
did not, and it is too late to raise it on reply. “District courts, including this one,
ordinarily do not consider arguments raised for the first time on reply.” Gross-Jones v.
Mercy Medical, 874 F. Supp. 2d 1319, 1330 n.8 (S.D. Ala. 2012) (citing cases and
explaining rationale). The defendant offers no reason it should be excused from this rule.
Since the second amended complaint explicitly alleges that the calls constituted
“advertisements” under the Act, (Doc. 44 at 3, 5), the Court concludes that no such
reason exists.
At any rate, the defendant’s argument rests only on its ipse dixit, which simply
parrots the regulatory definition without any analysis of its language, without any
discussion of cases considering the definition, and without any comparison of the
allegations of the second amended complaint to that definition. It is, in a word,
inadequate even were it to be considered.

4

that encouraging a call recipient to review what the caller has for sale is not a “call
or message for the purpose of encouraging the purchase … of … goods, or
services.”
On the contrary, the defendant’s cases accentuate the implausibility of its
position. The defendant believes that Aderhold v. Car2go N.A., 2014 WL 798402
(W.D. Wash. 2014), helps its case because the Court there rejected the argument
that a text message directing a newly signed-up member to enter his activation
code into an e-mailed link, which “ultimately connected to [the defendant’s]
website which contains promotions for [the defendant’s] service,” constituted
telemarketing. Id. at *1, 9. But Aderhold actually underscores the problem with
the defendant’s position. In Aderhold, there was “no indication that the text was
intended for anything other than the limited purpose stated in its two sentences: to
permit [the plaintiff] to complete registration.” Id. Here, in stark contrast, the
defendant’s message explicitly invited the plaintiff to peruse the defendant’s
offerings of goods and services.
In Chesbro v. Best Buy Stores, L.P., 705 F.3d 913 (9th Cir. 2012), another of
the defendant’s authorities, the Court accepted the FCC’s position, as set forth in
the report and order adopting amendments to Section 64.1200 (the “2003
Report”),5 that “so-called ‘dual purpose’ calls, those with both a customer service
or informational component as well as a marketing component, are prohibited.”
Id. at 917-18. If calls contain prohibited telemarketing or advertising, “[a]ny
additional information provided in the calls does not inoculate them.” Id. at 918.
Thus, any customer service or informational aspect to the defendant’s notification
that the plaintiff was entitled to free show tickets does not insulate the defendant
from liability for any advertisement or telemarketing contained elsewhere in the
same message.

5

In the Matter of Rules and Regulations Implementing the Telephone Consumer
Protection Act of 1991, Report and Order, 18 FCC Rcd. 14014 (F.C.C. July 3, 2003).
5

The Chesbro Court also agreed with the FCC’s position that “[a]pplication
of the prerecorded message rule should turn, not on the caller’s characterization of
the call, but on the purpose of the message.” 705 F.3d at 918 (internal quotes
omitted). The Ninth Circuit “approach[ed] the problem with a measure of
common sense” (as the defendant asks the Court to employ). Id. That is, in
determining the purpose of the defendant’s calls, a court does not passively accept
a defendant’s tortured explanation but uses common sense to assess what the
defendant was truly seeking to accomplish.
Moreover, “[n]either the statute nor the regulations require an explicit
mention of a good, product, or service where the implication is clear from the
context.” Chesbro, 705 F.3d at 918. Nor must the caller’s purpose be an
immediate sale: “Because the calls encouraged recipients to engage in future
purchasing activity, they also constituted telemarketing under the DNC [do not
call] regulation.” Id.6
Applying these principles to the regulatory definition of telemarketing, the
question is whether, viewed through the lens of common sense, one purpose of the
defendant in calling the plaintiff was to encourage him to buy goods or services in
the future, and neither the defendant’s failure to mention any particular goods or
services nor a second purpose of offering free tickets is inconsistent with such a
purpose. As noted, the defendant patently encouraged the plaintiff to view online
all its offers for sale. Employing common sense, what possible purpose could the
defendant have for such an encouragement other than that of obtaining future sales

6

The Ninth Circuit employed a similar analysis in evaluating whether a
communication constituted “advertisement.” Because, as noted in text, the defendant
failed to engage the “advertisement” component of the second amended complaint, the
Court need not elaborate on how seriously Chesbro damages the defendant’s ability to
successfully oppose that aspect of the lawsuit.

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to the plaintiff of the goods and services being offered? The defendant suggests
none.7
Instead, the defendant argues that dual-purpose calls cannot violate the Act
or its implementing regulations unless (1) the call is made to a residential phone
(not a cellular phone);8 and (2) the objectionable purpose is “advertisement” (not
“telemarketing”). (Doc. 52 at 5-6). The Court addresses these contentions in
reverse order.
It is true that the FCC discussed dual-purpose calls in the context of
advertisement, but that appears to be only because the examples presented to it
involved advertisement.9 The defendant has not attempted to support the
improbable idea that the FCC considers dual-purpose calls to be prohibited if the
objectionable purpose is advertisement but considers them to be permissible if the
objectionable purpose is the equally restricted one of telemarketing. Moreover,
and as discussed above, the second amended complaint asserts that the calls
constituted advertisement as well as telemarketing, and the defendant has not
shown the contrary.
The defendant notes that Section 64.1200(e) provides that subsections (c)
and (d) apply to calls to wireless numbers “to the extent described in” the 2003
Report. Because the regulation does not similarly express the scope of subsection
(a)(2), the defendant concludes the FCC could not have intended the dual purpose
7

This silence does not stem from any failure of the plaintiff to point out the
significance of the “visit BConnected online to view all of your offers” language; the
second amended complaint and the plaintiff’s brief repeatedly emphasize this language as
reflecting both “advertisement” and “telemarketing.” (Doc. 44 at 5-6; Doc. 51 at 4, 8-9,
12).
8

The defendant understands that the calls to the plaintiff were made to his cell
phone. (Doc. 47 at 12, 14).
9

The FCC identified these examples as calls “from mortgage brokers to their
clients notifying them of lower interest rates, calls from phone companies to customers
regarding new calling plans, or calls from credit card companies offering overdraft
protection to existing customers.” 2003 Report at 14098, ¶ 142.
7

prohibition (which the 2003 Report recognized) to extend to calls made to cell
phones. Unlike subsection (a)(2), subsections (c) and (d) by their terms apply only
to “residential” numbers; thus, some version of subsection (e) was necessary in
order to extend the provisions of subsections (c) and (d) to cellular numbers. It is
unclear why subsection (e) refers to the 2003 Report rather than simply saying, as
the report states, that “these rules [subsections (c) and (d)] apply to calls made to
wireless telephone numbers,” 2003 Report at 14116, ¶ 167, but it seems clear the
purpose was not to limit the scope of the dual-purpose prohibition to residential
lines. On the contrary, the 2003 Report expressly confirms the FCC’s “belie[f]
that wireless subscribers should be afforded the same protections as wireline
subscribers.” Id.
Having failed to demonstrate that the dual-purpose prohibition is legally
inapplicable, the defendant suggests it is factually inapplicable. According to the
defendant, “[t]he single purpose of the messages left for Plaintiff was
informational ….” (Doc. 52 at 8 (emphasis added)). As discussed above, in light
of the “visit BConnected online to view all of your offers” language (which the
defendant consistently ignores), this assertion is facially untenable.
The plaintiff argues that, even without this smoking-gun language, the real
purpose of the calls was clearly that of encouraging the purchase of goods and
services. He reasons that neither casinos nor other rational businesses give
customers free goods and services out of altruistic motives, but rather do so with
the calculated aim of enticing the recipient to couple the freebie with the purchase
of other items. (Doc. 51 at 5, 9-12). In support, the plaintiff notes the FCC’s
observation that “[o]ffers for free goods or services that are part of an overall
marketing campaign to sell property, goods, or services constitute” advertisement
under its regulations. 2003 Report at 14098, ¶ 140. The defendant ignores the
plaintiff’s rather plausible argument but, given the defendant’s express
encouragement to the plaintiff to view offers for sale, the Court need not decide
whether it would alone carry the day.
8

In summary, the defendant has failed to show that its messages, as a matter
of law, do not constitute “advertisement” or “telemarketing.” Its motion to
dismiss therefore must be denied.
II. Motion to Strike.
The plaintiff moved for leave to file a second amended complaint, attaching
a copy of the proposed pleading and describing the changes wrought. (Doc. 37).
The Court granted the motion over objection. (Doc. 42). The plaintiff then filed a
second amended complaint, but not the version he had represented he would file.
(Doc. 44). The defendant moves to strike the second amended complaint on this
basis. (Doc. 47 at 22-26).
The plaintiff argues that he “did nothing improper” because: (1) he moved
for leave to file a second amended complaint “substantively similar to the draft
attached hereto” and did not represent that he would file the proposed pleading as
presented; (2) the Court’s order granting leave to amend “did not restrict the leave
to filing exactly what was attached to the motion”; and (3) he did everyone a favor
by making changes that he believes moot the futility objections raised by the
defendant in opposing the motion for leave to amend. (Doc. 51 at 19-21).
Whatever the plaintiff may have believed, the Court granted leave to file
only the proposed second amended complaint attached to the motion for leave to
amend. Only that document has been subjected to review by the Court and
objection by the defendant, so only that document has been or could be approved
for filing.10 Language such as “substantively similar” may (or may not) preserve a
plaintiff’s ability to correct typographical errors, but it does not reserve to him the

10

The District’s Administrative Procedures for Filing, Signing, and Verifying
Documents by Electronic Means specify that, “[i]f the document you wish to file requires
leave of Court, such as an amended complaint or a document to be filed out of time, the
proposed document shall be attached as an exhibit to the motion.” (Id. at 11). What must
be attached to the motion is “the document you wish to file,” not an unfinalized draft of
the document desired to be filed.
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right to make whatever changes to the document he likes after the Court has
permitted its filing. No doubt the plaintiff’s intentions were honorable, but such a
practice opens the door to all sorts of potential abuses. Because the plaintiff filed
the second amended complaint without judicial authorization or the defendant’s
written consent, Fed. R. Civ. P. 15(a)(2), the pleading must be stricken.
The defendant’s motion to strike the class allegations addresses in part
allegations that appear in the second amended complaint but not in the first
amended complaint. Since the second amended complaint is being stricken, the
motion to strike the class allegations is due to be denied as moot.11
CONCLUSION
For the reasons set forth above, the defendant’s motion to dismiss is
denied, its motion to strike the second amended complaint is granted, and its
motion to strike the class allegations is denied as moot. The second amended
complaint is stricken.
DONE and ORDERED this 6th day of May, 2015.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

11

Because the defendant’s motion to strike is couched as a back-up alternative to
its primary motion to dismiss, striking the second amended complaint does not affect the
controlling effect of the Court’s ruling on the legal issue presented in the motion to
dismiss. Nor would the Court’s ruling differ had the motion to dismiss been addressed to
the first amended complaint.
10