Santiago v. Merriman River Associates, LLC
Filing
36
ORDER granting in part and denying in part 28 Motion to Dismiss. Plaintiff may file a Second Amended Complaint by June 15, 2018, addressing any of the concerns raised in this Ruling. Additionally, the parties shall submit a new 26(f) Report by June 30, 2018. Signed by Judge Victor A. Bolden on 6/1/2018. (Giammatteo, J.)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
MARISSA SANTIAGO, individually and on
behalf of all others similarly situated,
Plaintiff,
No. 3:17-cv-2054-VAB
v.
MERRIMAN RIVER ASSOCIATES, LLC,
Defendants.
RULING ON MOTION TO DISMISS
Marissa Santiago (“Ms. Santiago”) filed this lawsuit on behalf of herself and a putative
class. She claims that Merriman River Associates (“MRA”) violated the Telephone Consumer
Protection Act (“TCPA”) when it called her cellphone and used a pre-recorded artificial voice
message for political polling. MRA now moves to dismiss the Amended Complaint.
For the reasons stated below, MRA’s motion to dismiss the Amended Complaint, ECF
No. 28, is GRANTED in part and DENIED in part.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Ms. Santiago is a Connecticut resident. Am. Compl. ¶ 5. Merriman River Associates,
LLC (“MRA”), a limited liability company, has its principle place of business in Hamden,
Connecticut. Id. ¶ 8. MRA allegedly provides “comprehensive polling services to campaigns
throughout the United States.” Id. ¶ 13.
A.
Factual Allegations
Ms. Santiago alleges that “at all relevant times” for this lawsuit she subscribed to a
wireless telephone number. Am. Compl. ¶ 6. The number—which ended in “2845”—was always
1
assigned to a cellphone and not to a landline. Id. ¶¶ 6–7. She also alleges that the phone was
registered on the National Do Not Call Registry. Id. ¶ 6.
In October 2017, she received the first of three calls she maintains came from MRA and
to which she had not consented. Id. ¶ 3, 16. Two calls went to voicemail, and Ms. Santiago
claims she received the following message:
Hi, this is Sarah calling from MRG Policy Polling. We’re
conducting a short survey about some issues important to
Connecticut. We’re sorry we missed you. We’ll try calling you again
tomorrow. This same number will come up on your caller ID. Your
opinion is very important, and we hope that you will participate.
Thank you.
Id. ¶ 17. Ms. Santiago claims she answered the third phone call, and “heard a
prerecorded/artificial voice asking [her] to participate in a poll Defendant was conducting.” Id. ¶
18.
Ms. Santiago alleges that MRA markets itself as a comprehensive polling service,
specifically offering “[a]utomated (IVR) phone polling” that “allows for dialing thousands of
simultaneous calls.” Id. ¶¶ 14–15. She alleges that “none of the [three] calls seemed to have any
human involvement or interactivity” and that she heard only an artificial voice. Id. ¶ 20. She
alleges that “Defendant made the calls at issue using an artificial or prerecorded voice and/or an
automated telephone dialing system.” Id. ¶ 21. She also maintains that that she “is informed and
believes” that MRA called others throughout the United States. Id. ¶ 23.
B.
Procedural History
Ms. Santiago filed the initial Complaint in this matter on December 7, 2017. See
generally Compl., ECF No. 1. The Complaint included two causes of action: “violations of the
Telephone Consumer Protection Act” and “Knowing and/or Willful violation of the Telephone
2
Consumer Protection Act.” Id. ¶¶ 34–40. The Complaint also included allegations on behalf of a
putative class.
MRA then moved to dismiss the Complaint. Def. Mot. to Dismiss, ECF No. 15. First, it
argued that dismissal was warranted in its entirety because the Complaint contained no allegation
that the calls went to a number assigned to a cellphone. Id. at 1. Second, it moved to dismiss the
second count, arguing that the Complaint did not plausibly state a claim that MRA’s behavior
was “willful.” Id.
Instead of responding to the motion to dismiss, Ms. Santiago filed an Amended
Complaint. See generally Am. Compl., ECF No. 21. The Amended Complaint included only one
cause of action, but alleged that the phone calls “constitute numerous and multiple negligent,
willful and/or knowing violations of the TCPA, including but not limited to all of the above-cited
provisions of 45 U.S.C. § 227 et seq. and its implementing regulations.” Am. Compl. ¶ 39. Ms.
Santiago seeks statutory damages between $500 and $1,500 per violation, attorneys’ fees, costs,
and injunctive relief. Id. ¶ 40.
She also renews her claims on behalf of a putative class. The Amended Complaint
includes the following class definition:
All persons within the United States who received an artificial voice
or prerecorded telephone call from Defendant, or a caller acting on
behalf of Defendant, after October 16, 2013 to said person’s wireless
telephone number.
Id. ¶ 29. She alleges that the class would meet the requirements of Rule 23 of the Federal Rules
of Civil Procedure. Id. ¶¶ 32-37.
MRA now moves to dismiss the Amended Complaint under Rule 12(b)(6) of the Federal
Rules of Civil Procedure. Def. Mot., ECF No. 28. It argues that the Amended Complaint is
procedurally improper because it combines both negligent and willful violations into a single
3
count. Def. Mem. in Support (“Def. Mem.”) at 6, ECF No. 29; Def. Rep. Br. at 4 n.2, ECF 32.
Second, MRA argues that Ms. Santiago has failed to properly allege that any of the violations
were knowing or willful. Def. Mem. at 6-10; Def. Rep. Br. at 2-4. Third, it moves to “dismiss”
any claims for attorneys’ fees, arguing that the TCPA does not allow for the recovery of fees and
costs. Def. Mem. at 10; Def. Rep. Br. at 5. Finally, MRA moves to “dismiss and/or strike” parts
of the class definition because it argues those claims are barred by the TCPA’s statute of
limitations. Def. Mem. at 10-12.
Ms. Santiago disagrees. See Pl. Mem. in Opp. (“Pl. Mem.”), ECF No. 30. She argues that
the Amended Complaint adequately places MRA on notice of the claims as required by Rules 8
and 10 of the Federal Rules of Civil Procedure, and that she has included adequate factual
allegations demonstrating willfulness on the part of MRA. Id. at 3-7. She argues that attorneys’
fees are appropriate because she would be entitled to recover fees as part of a common fund if
the class is certified. Id. at 8. Finally, she argues that the class allegations should not be
dismissed in their entirety, but “does not oppose reforming the class definition to start on
December 7, 2013, rather than October 16, 2013, for pleading purposes.” Pl. Mem. at 9.
The Court held oral argument on the motion on May 30, 2018.
II.
STANDARD OF REVIEW
A.
Rule 12(b)(6) Motion to Dismiss
A complaint must contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a). A court will dismiss any claim that fails “to
state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In reviewing a
complaint under Rule 12(b)(6), the court applies a “plausibility standard” guided by “two
working principles.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
4
First, “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id.; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007) (“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations . . . a plaintiff’s obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.” (internal citations omitted)). Second, “only a
complaint that states a plausible claim for relief survives a motion to dismiss.” Iqbal, 556 U.S. at
679. Thus, the complaint must contain “factual amplification . . . to render a claim plausible.”
Arista Records LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (quoting Turkmen v. Ashcroft,
589 F.3d 542, 546 (2d Cir. 2009)).
All of the factual allegations in the complaint will be taken as true. Iqbal, 556 U.S. at
678. The factual allegations will also be viewed in the light most favorable to the plaintiff, and
all inferences will be drawn in favor of the plaintiff. Cohen v. S.A.C. Trading Corp., 711 F.3d
353, 359 (2d Cir. 2013); see also York v. Ass’n of the Bar of the City of New York, 286 F.3d 122,
125 (2d Cir. 2002) (“On a motion to dismiss for failure to state a claim, we construe the
complaint in the light most favorable to the plaintiff, accepting the complaint’s allegations as
true.”).
B.
Motion to Strike under Rule 12(f)
A court may “strike from a pleading any insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). Resolution of a motion to
strike under this rule is within the discretion of the district court, and such motions are generally
disfavored and should be infrequently granted. Tucker v. Am. Int’l Grp., Inc., 936 F. Supp. 2d 1,
15-16 (D. Conn. 2013). The Second Circuit has long held that courts “should not tamper with the
pleadings unless there is a strong reason for so doing,” and that a motion to strike under Rule
5
12(f) should be denied “unless it can be shown that no evidence in support of the allegation
would be admissible.” Lipsky v. Commonwealth United Corp., 551 F.2d 887, 893 (2d Cir. 1976).
A motion to strike are particularly disfavored with respect to class allegations “because it
requires a reviewing court to preemptively terminate the class aspects of litigation, solely on the
basis of what is alleged in the complaint and before plaintiffs are permitted to complete the
discovery to which they would otherwise be entitled on questions relevant to class certification.”
Chen-Oster v. Goldman, Sachs & Co., 877 F. Supp. 2d 113, 117 (S.D.N.Y. 2012) (internal
alterations and quotation marks omitted).
The party moving to strike “bears a heavy burden” and ordinarily must show that “(1) no
evidence in support of the allegations would be admissible; (2) the allegations have no bearing
on the issues in the case; and (3) permitting the allegations to stand would result in prejudice to
the movant.” Tucker, 936 F. Supp. at 16.
III.
DISCUSSION
This case addresses the Telephone Consumer Protection Act of 1991 (“TCPA”).
Congress passed the TCPA in an effort to address “[v]oluminous consumer complaints about
abuses of telephone technology—for example, computerized calls dispatched to private homes . .
. .” Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 370–71, 132 S. Ct. 740, 744, 181 L. Ed. 2d
881 (2012). Under the TCPA, it is unlawful “to make any call (other than a call made for
emergency purposes or made with the prior express consent of the called party) using any
automatic telephone dialing system or an artificial or prerecorded voice” to “any telephone
number assigned to a . . . cellular telephone service . . . .” 47 U.S.C.A. § 227(b)(1)(A)(iii).
Ms. Santiago—on behalf of herself and a putative class—alleges that MRA made calls
that “constitute numerous and multiple negligent, willful and/or knowing violations of the TCPA
6
. . . .” Am. Compl. ¶ 39. MRA moves to dismiss the Amended Complaint, arguing that it is
procedurally improper and fails to state a claim for willful or knowing violations of the TCPA.
Def. Mem. at 6-10. Additionally, MRA seeks to “dismiss” or strike any claims for attorneys’ fees
or those relating to the putative class. Def. Mem. at 10-12.
A.
“Willful and Knowing” Violations
In order to state a claim for a violation of the cellphone provisions of the TCPA, “a
plaintiff must allege that: ‘(1) a call was placed to a cell or wireless phone; (2) by the use of any
automatic dialing system [and/or leaving an artificial or prerecorded message] and (3) without
prior consent of the recipient.’” Jennings v. Cont’l Serv. Grp., Inc., 239 F. Supp. 3d 662, 665
(W.D.N.Y. 2017) (quoting Echevvaria v. Diversified Consultants, Inc., No. 13 Civ. 4980
(LAK)(AJP), 2014 WL 929275, at *4 (S.D.N.Y. Feb. 28, 2014)) (alterations in original).
The TCPA creates a private right of action and provides statutory damages of $500 for
each violation of the act. Physicians Healthsource, Inc. v. Boehringer Ingelheim Pharm., Inc.,
847 F.3d 92, 94–95 (2d Cir. 2017). A plaintiff may receive treble damages under the TCPA,
however, “if the court finds that the defendant willfully or knowingly violated this subsection.”
47 U.S.C. § 227(b)(3).
MRA appears to concede that the Ms. Santiago has properly pled a violation of the
TCPA. Cf. Jennings, 239 F. Supp. 3d at 665. She alleges that she received three calls to her
number, registered to a cellphone. Am. Compl. ¶ 16. She also received two voicemails and, on
the third call, picked up, only to interact “with a prerecorded/artificial voice” ¶¶ 17–18. Finally,
she alleges these calls were made “without [her] prior express consent” Id. ¶ 21.
But MRA raises two arguments in support of its motion to dismiss, one procedural and
one substantive. MRA first argues that the Complaint should be dismissed because, in combining
7
negligent violations of the TCPA with allegations of that violation being willful or knowing, Ms.
Santiago has violated Rules 8 and 10 of the Federal Rules of Civil Procedure. Def. Mem. at 6;
see also Fed. R. Civ. P. 8(a) (requiring pleading to state “a short and plain statement of the
claim” and “a demand for the relief sought, which may include relief in the alternative or
different types of relief”); Fed. R. Civ. P. 10(b) (“If doing so would promote clarity, each claim
founded on a separate transaction or occurrence . . . must be stated in a separate count or
defense.”).
The TCPA provides that, “if the court finds that the defendant willfully or knowingly
violated this subsection,” it may “increase the amount of the award to an amount equal to not
more than 3 times the amount available” in other cases. 47 U.S.C. § 227(b)(3). The statute
increases the damages for a particular course of conduct that violates the TCPA if that conduct is
willful or knowing, but it is still the same underlying violation and there is no reason why it
would be any clearer to allege two counts here instead of one. Cf. Fed. R. Civ. P. 10(b) (“If doing
so would promote clarity, each claim founded on a separate transaction or occurrence . . . must
be stated in a separate count or defense.”).1
MRA’s primarily argues that Ms. Santiago fails to allege a sufficient factual basis to
support her claims of a willful and knowing violation of the TCPA violation. Def. Mem. at 6-10.
It argues that the Amended Complaint merely contains “threadbare allegations that parrot the
statutory language.” Id. at 7. And any assertion in the Amended Complaint that conduct was
1
MRA cites to Fisher v. Rodriguez, but the complaint in Fisher included a long list of claims
“without factual content” and several of those claims merely cited what “appear to be
headnotes.” Fisher v. Rodriguez, No. 3:16-CV-1763 (VLB), 2017 WL 71651, at *1 (D. Conn.
Jan. 5, 2017) (noting pro se complaint included seventeen defendants, “prolix, factually
unsupported, factually unattributed, and frivolous claims” and requiring amendment). Fisher
thus bears no reasonable relationship to this case.
8
“willful or knowing” would merely be a legal conclusion and not sufficient to support a claim
without additional support. Id. at 9-10. MRA maintains that, in order to support a willful and
knowing claim, Ms. Santiago would have to show that Defendant “knew or was made aware that
the Plaintiff did not consent to calls” and it argues she has failed to do so. Id. at 9 (citing Bentley
v. Greensky Trade Credit, LLC, 156 F. Supp. 3d 274 (D.Conn. 2015); Duchene v. Onstar, LLC,
NO. 15-1337, 2016 WL 3997031, at *9 (E.D. Mich. July 26, 2016)). Finally, MRA argues that
adopting Ms. Santiago’s proposed standard would erode a distinction drawn by Congress
“between negligent violations of the TCPA and those that require an intent.” Def. Rep. Br. at 2
(citing Harris v. World Fin. Network Nat’l Bank, 867 F. Supp. 2d 888, 895 (E.D.Mich. 2012)).
Ms. Santiago responds that “a defendant knowingly or willfully violates the Act if it
makes a call knowing it lacks consent prior to a call.” Pl. Mem. at 5. She argues that she was not
required to notify MRA she did not consent to the calls and, “even if the TCPA or the allegations
at issue necessitate pleading notice of a lack of consent, the nature of Defendant’s calls made it
impossible for Plaintiff or any individual to provide such notice” that she did not consent. Id. at
6. Ultimately, Ms. Santiago argues that she generally alleged that MRA’s conduct was knowing
and willful, and that she has alleged specific factual information that would support that general
allegation.
“In order for a defendant's conduct to be ‘willful’ or ‘knowing’ for purposes of treble
damages under the TCPA, courts in this Circuit have held that bad faith is not necessarily
required; rather, it is enough for a defendant to act with knowledge that the conduct violates the
law.” Owens v. Starion Energy, Inc., No. 3:16-CV-01912 (VAB), 2017 WL 2838075, at *7 (D.
Conn. June 30, 2017); see also Echevvaria v. Diversified Consultants, Inc., No. 13 CIV. 4980
(LAK)(AJP), 2014 WL 929275, at *11 (S.D.N.Y. Feb. 28, 2014) (“Accordingly, the Court finds
9
that Diversified’s conduct was willful because Diversified knew or should have known” that
their conduct violated the TCPA); see also Warman v. Law Office of Daniel M. Slane, No. 14-cv700 (LJV), 2017 WL 971196, at *6 (W.D.N.Y. Mar. 13, 2017) (“Before awarding treble
damages for any willful or knowing violations of the TCPA, a court should have evidence that a
defendant was aware or should have been aware that it called an individual after he or she asked
that the calls stop or that the defendant knew it was violating the TCPA but kept calling
anyway.”); Manuel v. NRA Grp., LLC, 200 F. Supp. 3d 495, 502 (M.D. Pa. 2016), aff’d, No. 171124, 2018 WL 388622 (3d Cir. Jan. 12, 2018) (“Courts have generally resolved this ambiguity
by requiring evidence of volitional conduct for each element of liability, irrespective of any
intent to transgress the Act's prohibitions.”).
Here, Ms. Santiago alleges sufficient factual information that MRA knew or should have
known that the first two requirements of the TCPA were met. First, she alleges that her number
was registered—and always had been registered—to a cell phone and she had never subscribed
to a landline. Am. Compl. ¶¶ 6-7, 16. This allegation suggests MRA should have known it was
calling a cellphone. She also cites to MRA’s marketing materials on their website, which state
that the group’s “infrastructure allows for dialing thousands of simultaneous calls.”
The main issue then is the third requirement: at this stage, whether she has sufficiently
alleged that MRA knew or should have known it was calling “without prior consent of the
recipient.” Cf. Jennings, 239 F. Supp. 3d at 665. There is no allegation in the Amended
Complaint that would suggest a previous relationship between MRA and Ms. Santiago or
indicate she had consented to the phone calls. See, e.g., Am. Compl. ¶ 3 (“To her knowledge,
Plaintiff never consented to Defendant’s phone messages.”). Ms. Santiago does maintain,
however, that she had registered her number with the National Do Not Call Registry. Id. ¶ 6.
10
While interpreting a separate section of the TCPA, this Court has previously held that similar
allegations “suggest that [the defendant] knew that calling [the plaintiff] would violate the
TCPA” Owens, 2017 WL 2838075, at *7.2 Similarly, while Ms. Santiago is not alleging a
violation of the TCPA’s “Do Not Call List” provisions, the allegation that her number was on the
Do Not Call List does raise an inference that MRA knew or should have known she would not
have consented to this type of phone call. At this stage in the litigation, such an inference must
be drawn in Ms. Santiago’s favor. See, e.g., Cohen, 711 F.3d at 359.
None of the authorities cited by MRA require a different result. Significantly, MRA cites
to Harris v. World Fin. Network Nat. Bank, 867 F. Supp. 2d 888 (E.D. Mich. 2012), but the court
there applied the summary judgment standard in reviewing the claim, not the motion to dismiss
standard. Id. at 895. In any event, Harris addressed a defendant who used an auto-dialer to place
calls, and believed that the plaintiff’s number belonged to another individual who had consented
to those calls. On summary judgment, the court required that “Plaintiff must also show that
Defendants knew that Plaintiff did not consent to the phone calls.” Id. The plaintiff could only do
that for a subsection of the violations, after he had informed the defendant “they were calling the
wrong number.” Id. Duchene v. Onstar reached a similar conclusion: “As Plaintiff did not plead
that he notified Defendant that he did not consent to the calls (or that Defendant was otherwise
aware that Plaintiff did not consent to the calls), the Court grants Defendant’s Renewed Motion
to Dismiss as it relates to Count II.” Duchene v. Onstar, LLC, No. 15-13337, 2016 WL 3997031,
at *7 (E.D. Mich. July 26, 2016). Neither opinion, however, addressed whether a lack of consent
2
MRA attempts to distinguish Owens by noting that the plaintiff in that case had requested the
defendant stop calling her. See Def. Rep. at 3 (citing Owens, 2017 WL 2838075, at *1). While
the plaintiff did so allege, the Court did not consider this fact in deciding whether the plaintiff
had adequately stated a willful or knowing violation. The decision rested on the allegations
related to the Do Not Call List. Id. at *7.
11
could be inferred from placement on the Do Not Call list, nor in either case were there
allegations that the individual’s phone number was on the list.3
As a result—and accepting all facts in the complaint as true and drawing all inferences in
her favor—Ms. Santiago has properly alleged a knowing and willful violation of the TCPA. The
motion to dismiss is denied with respect to Count I of the Amended Complaint.
B.
Attorneys’ Fees and Costs
MRA also moves to dismiss Ms. Santiago’s request for attorney fees, arguing that the
TCPA is not a fee-shifting statute. See Def. Mem. at 10; Def. Rep. at 2-3. In response, Ms.
Santiago argues she “does not contend the TCPA is a fee-shifting statute.” Pl. Mem. at 8. She
argues instead that the fee request is appropriate “because this case is a class action” and the
Court could award fees if the litigation ultimately resulted in a common fund benefiting unnamed
class members. Id.
As a threshold matter, the Court notes that MRA has moved to dismiss Ms. Santiago’s
request for relief, rather than strike it. However, “[s]uch a motion is not properly a motion to
dismiss and is more properly styled as a motion to strike, and the Court will treat it as a motion
to strike.” SRSNE Site Grp. v. Advance Coatings Co., No. 3:12-cv-443 (VLB), 2014 WL 671317,
at *1 (D. Conn. Feb. 21, 2014); Marshall v. New York State Pub. High Sch. Athletic Ass’n, Inc.,
290 F. Supp. 3d 187, 204 (W.D.N.Y. 2017) (“Although the Commissioner asserts this argument
in her motion to dismiss, the Court finds that it is more properly deemed a motion to strike the
third prayer for relief, and the Court will treat this argument as such.”).
3
Significantly, the court in Duchene relied on both Harris and another summary judgment
decision, Echeverria, 2014 WL 929275, in deciding to dismiss the claim at that earlier stage,
without any discussion of the difference in the applicable legal standards.
12
MRA correctly recognizes that the TCPA does not authorize attorneys’ fees and costs.
See Klein v. Vision Lab Telecommunications, Inc., 399 F. Supp. 2d 528, 542 (S.D.N.Y. 2005)
(“The TCPA makes no provision for attorney's fees or costs.”); Haley v. Hughes Network Sys.,
LLC, No. 12-CV-1079JTC, 2013 WL 5937007, at *3 (W.D.N.Y. Nov. 1, 2013) (noting, on
default judgment motion, that TCPA does not provide attorney’s fees or costs). The cases it
relies on, however, are cases with individual plaintiffs and without class allegations. Klein, 399
F. Supp. 2d at 529 (noting two plaintiffs); Haley, 2013 WL 5937007, at *1 (noting single
plaintiff).
By contrast, courts in this District have refused to strike fee requests in TCPA cases
where a complaint states allegations on behalf of a putative class. See, e.g., Bell v. Survey
Sampling Int’l, LLC, No. 3:15-CV-1666 (MPS), 2017 WL 1013294, at *8 (D. Conn. Mar. 15,
2017) (denying motion to strike attorneys’ fees in TCPA putative class action where defendant
did not show prejudice fees could be awarded if “the litigation ultimately resulted in a common
fund benefiting unnamed class members”); Owens, 2017 WL 2838075, at *8 (same); see also
Brown v. Rita’s Water Ice Franchise Co. LLC, 242 F. Supp. 3d 356, 360 (E.D. Pa. 2017)
(approving settlement in TCPA class action and noting that “[a]ttorneys who create a settlement
fund for class members are entitled to reasonable compensation from that fund.”).
In Owens, for example, this Court addressed similar arguments within the context of a
motion to dismiss: the defendant “argue[d] that the TCPA is not a fee shifting statute, thus any
reference to attorneys' fees in the Complaint should be stricken.” Id. at *8. The Court, quoting
Bell, noted that if a class were certified the Court could award fees out of a common fund. Id. It
also noted that the defendant had failed to show that it would be prejudiced in any way if class
allegations were allowed to stay in the complaint. Id. As a result, the Court noted, “in the event
13
that the Court certifies a class in this action, there may still be some circumstances in which
attorney’s fees are appropriate.” Id.
The Court sees no reason to reach a different result here. In the Amended Complaint, Ms.
Santiago alleged that “[p]ursuant to 47 U.S.C. § 227(b)(3), Plaintiff and the class members are
entitled to statutory damages of at least $500 and no more than $1,500 per violation, attorneys
fees and costs, and injunctive relief prohibiting Defendant’s violations of 47 U.S.C. 227 et seq.
and its implementing regulations.” Am. Compl. ¶ 40. The Prayer for Relief repeats the claim for
attorneys’ fees and costs, without reference to the TCPA. Id. at 8.
While the Amended Complaint could be more clearly drafted, it appears that Ms.
Santiago seeks attorneys’ fees primarily—if not only—in relation to the class allegations, and her
representation of the putative class. See Am. Compl. at 8. And because it could ultimately result
in a common fund, as Ms. Santiago argues, without more, the Court will not strike the request for
attorneys’ fees from the Amended Complaint. Nevertheless, as discussed below, since Ms.
Santiago will be amending her Complaint to address the definition of the purported class, she
should amend the Complaint to provide greater clarity over the basis for relief with respect to
attorneys’ fees and costs.
C.
Class Allegations
In the Amended Complaint, Ms. Santiago alleges violations on behalf of a putative class
that received calls “after October 16, 2013 to said person’s wireless telephone number.” See Am.
Compl. ¶ 29. MRA moves to “dismiss and/or strike” allegations prior to December 7, 2013,
arguing that the TCPA has a four-year statute of limitations and therefore claims accruing more
than four years before the filing of the initial Complaint in this action would be time-barred. Def.
Mem. at 10-11. Defendant’s claim is properly understood as a motion to strike, rather than a
14
motion to dismiss under Rule 12(b)(6). See Owens, 2017 WL 2838075 at *7-8 (addressing
motion to strike class allegations in TCPA case).
“A court is not bound by the class definition proposed in the complaint and should not
dismiss the action simply because the complaint seeks to define the class too broadly.” Robidoux
v. Celani, 987 F.2d 931, 937 (2d Cir. 1993). Court have “broad discretion to modify the class
definition as appropriate.” In re LIBOR-Based Fin. Instruments Antitrust Litig., No. 11 CIV.
5450 (NRB), 2018 WL 1229761, at *7 (S.D.N.Y. Feb. 28, 2018). Modifying the class definition
may be particularly appropriate at the certification stage, including the certification of subclasses.
See Robdioux, 987 F.2d at 937; see also Fed. R. Civ. P. 23(c)(5) (“When appropriate, a class may
be divided into subclasses that are each treated as a class under this rule.”); Fed. R. Civ. P.
23(d)(1)(D) (noting court “may issue orders that . . . require that the pleadings be amended to
eliminate allegations about representation of absent persons and that the action proceed
accordingly”).
Motions to strike are generally disfavored, and more so when they related to class
allegations. See Chen-Oster v. Goldman, Sachs & Co., 877 F. Supp. 2d 113, 117 (S.D.N.Y.
2012) (collecting cases and noting motions to strike class claims are disfavored before plaintiffs
are permitted to complete discovery). A court may, however, exercise its discretion to strike parts
of a class allegation at the motion-to-dismiss stage if those claims could not be maintained as a
matter of law. See, e.g., Davito v. AmTrust Bank, 743 F. Supp. 2d 114, 115 (E.D.N.Y. 2010)
(“Several district courts, however, have held that such motions may be addressed ‘prior to the
certification of a class if the inquiry would not mirror the class certification inquiry and if
resolution of the motion is clear.’”) (quoting In re Initial Public Offering Sec. Litig., 21 MC
92(SAS), 2008 WL 2050781, *2 (S.D.N.Y. May 13, 2008)).
15
This limited exception applies to “a motion to strike that addresses issues separate and
apart from the issues that will be decided on a class certification motion.” Chen-Oster, 877 F.
Supp. 2d at 117 (internal quotation marks omitted) (denying motion to strike arguing plaintiffs
could not show commonality). This includes claims barred by statute of limitations. Cf. Barrett v.
Forest Labs., Inc., 39 F. Supp. 3d 407, 460 (S.D.N.Y. 2014) (granting motion strike portions of
putative class definition in Title VII case because claims accruing before a certain date would be
time-barred).
TCPA claims are subject to a four-year statute of limitations. See Giovanniello v. ALM
Media, LLC, 726 F.3d 106, 115 (2d Cir. 2013). Violations of the TCPA begin to accrue when the
offending action takes place. Cf. Bais Yaakov of Spring Valley v. Alloy, Inc., 936 F. Supp. 2d
272, 281 (S.D.N.Y. 2013) (holding, in fax case under TCPA, that claims accrued when faxes
were sent). Therefore, applying the statute of limitations to Ms. Santiago’s case, any claim
arising more than four years before the filing of the initial complaint would be time-barred. The
initial complaint here was filed on December 7, 2017, so calls occurring before December 7,
2013, would be barred by the statute of limitations.
Ms. Santiago has consented to “reforming the class definition to start on December 7,
2013, rather than October 16, 2013.” Pl. Mem. at 9. Since the parties are in agreement, and the
statute of limitations clearly forecloses relief on the face of the Amended Complaint, the Court
will grant MRA’s motion solely with respect to claims accruing before December 7, 2013. Ms.
Santiago should file a Second Amended Complaint to address this issue.
IV.
CONCLUSION
For the reasons stated above, MRA’s motion to dismiss the Amended Complaint is
GRANTED in part and DENIED in part.
16
Plaintiff may file a Second Amended Complaint by June 15, 2018, addressing any of the
concerns raised above. Additionally, the parties shall submit a new 26(f) Report by June 30,
2018.
SO ORDERED at Bridgeport, Connecticut, this 1st day of June, 2018.
/s/ Victor A. Bolden
Victor A. Bolden
United States District Judge
17
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?