Robertson v. ADA Alliance Data Systems, Inc.

Filing 136

ORDER: Defendant's Motion to Dismiss Second Amended Class Action Complaint 105 is DENIED. Signed by Judge Virginia M. Hernandez Covington on 1/7/2013. (MEB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DOUGLAS B. STALLEY, in his
capacity as Personal Representative
of the Estate of Gary Robertson
and JEREMIAH HALLBACK, individually,
and on behalf of all those similarly
situated,
Plaintiffs,
Case No.: 8:11-cv-1652-T-33TBM
v.
ADS ALLIANCE DATA SYSTEMS, INC.,
Defendant.
______________________________/
ORDER
This

matter

comes

before

the

Court

pursuant

to

Defendant’s Motion to Dismiss Second Amended Class Action
Complaint (Doc. # 105), filed on August 17, 2012.

Plaintiffs

filed a response in opposition to the motion on September 14,
2012. (Doc. # 111).
For the reasons that follow, the Court denies Defendant’s
motion to dismiss.
I.

Background
Gary Robertson initiated this putative class action in

state court on June 22, 2011, against Defendant ADS Alliance
Data Systems, Inc. for alleged violations of the Florida
Security of Communications Act, Section 934.01 et seq.
# 2).

(Doc.

Defendant removed the case to this Court on July 25,

2011, pursuant to the federal Class Action Fairness Act. (Doc.
# 1).

On October 24, 2011, Robertson moved to certify the

putative class.

(Doc. # 20).

However, while that motion was

pending, Robertson passed away (Doc. # 82), and Douglas
Stalley, as personal representative of Robertson’s estate, was
eventually substituted as Plaintiff in this action.
87).

(Doc. #

Plaintiff subsequently requested and was granted leave

to file a second amended complaint. (Doc. # 100).

The second

amended complaint, filed on July 30, 2012, added Jeremiah
Hallback

as

a

Plaintiff

definition. (Doc. # 103).

and

included

an

amended

class

Defendant’s motion to dismiss,

filed in response to the second amended complaint on August
17, 2012, is now before the Court.
II.

Legal Standard
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)(2).

In reviewing a motion to dismiss, a trial

court accepts as true all factual allegations in the complaint
and construes the facts in the light most favorable to the
plaintiff.

Jackson v. Bellsouth Telecomms., 372 F.3d 1250,

1262 (11th Cir. 2004).
accept as

true

a

legal

However, courts are not “bound to
conclusion couched as

a

factual

allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).
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In Bell Atlantic Corp. v. Twombly, the Supreme Court
articulated the standard by which claims should be evaluated
on a motion to dismiss:
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 entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
raise a right to relief above the speculative
level.
550 U.S. 544, 555 (2007) (internal citations omitted).
In

accordance

with

Twombly,

Federal

Rule

of

Civil

Procedure 8(a) calls “for sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its
face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting

Twombly, 550 U.S. at 570).

A plausible claim for relief must

include “factual content [that] allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.”

Id.

III. Analysis
Plaintiffs

allege

causes

of

action

for

damages

and

injunctive relief, on behalf of themselves and a putative
class of similarly situated individuals, against Defendant for
violation of the Florida Security of Communications Act,
Section 934.01 et seq. (“FSCA”).
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The FSCA “makes it a crime

to

intentionally

intercept

a

person’s

electronic

communications, including a telephone call, without prior
consent of all parties to the communication, and permits a
private cause of action providing for a minimum of $1,000 in
liquidated damages for an interception in violation of the
Act.” France v. France, 90 So. 3d 860, 862 (Fla. 5th DCA
2012).
In its motion to dismiss, Defendant does not argue that
Plaintiffs

have

failed

to

allege

in

the

second

amended

complaint all the necessary prima facie elements to state a
claim under the FSCA.

Indeed, the second amended complaint

alleges that Defendant intentionally recorded phone calls to
both individual Plaintiffs and to the putative class members
without obtaining their prior consent to do so.
at ¶¶ 27-37).

(Doc. # 103

Instead, Defendant takes issue with the scope

of Plaintiffs’ proposed class definitions, which provide as
follows:
Any and all persons who, on or after June 22, 2009
through the date of the final judgment in this
action (the “Class Period”)
(1)

received an outbound telephone call from ADS,
at a telephone number associated with an
address in Florida, as identified by the
records maintained by ADS, spoke to an ADS
representative, and were an accountholder with
WFNNB, WFNB, or WFCB during the Class Period;
or
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(2)

received an outbound telephone call from ADS,
at a telephone number associated with an
address in Florida, as identified by the
records maintained by ADS, spoke to an ADS
representative, and were domiciled or resided
with an accountholder of WFNNB, WFNB, or WFCB
during the Class Period.

(Doc. # 103 at ¶ 38).
Specifically, Defendant argues that the second amended
complaint fails to state a cause of action on behalf of the
putative class members because “neither class definition . .
.

limits

its

reach

to

those

persons

whose

telephone

conversations with ADSI’s employees were recorded without
consent.” (Doc. # 105 at 7-8).

Similarly, Defendant argues

that the proposed class definitions fail because they would
include persons who do not have a cause of action under the
FSCA -- specifically, people with a cellular telephone number
associated with an address in Florida who received a telephone
call from Defendant while that person was physically located
outside of Florida.

Id. at 8.

Defendant further argues that

Plaintiffs’ limitation of the class to accountholders and
those who were “domiciled or resided with an accountholder”
would exclude persons who could potentially have a valid FSCA
claim, including individuals who were visiting the intended
recipient of the call, answered the call from Defendant, and
had their conversations recorded.
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As these arguments do not directly go to the sufficiency
of the allegations in the second amended complaint, but
rather, are directed to the definition and scope of the
putative class, the Court finds that these arguments are best
addressed in ruling on Plaintiffs’ motion to certify class
when the Court has the luxury of considering evidence beyond
the four corners of the complaint.1

Likewise, Defendant’s

assertion that Plaintiffs lack standing to pursue claims on
behalf of the first sub-class requires analysis well beyond
the face of the second amended complaint.
The second amended complaint complies with Rule 8(a)(2),
Fed. R. Civ. P., in that it contains a “short and plain
statement of the claim showing that the pleader is entitled to
relief.”

In addition, the second amended complaint contains

factual allegations raising Plaintiffs’ right to relief above
the speculative level and stating a claim that is plausible on
its face. As explained in Iqbal, 556 U.S. at 664, “A claim has
facial plausibility when the pleaded factual content allows
the court to draw the reasonable inference that the defendant

1

Plaintiffs’ Renewed and Amended Motion for Class
Certification (Doc. # 126), filed on December 7, 2012, is
currently pending before the Court, but is not yet ripe.
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is liable for the misconduct alleged.”

The Court therefore

denies the motion to dismiss.
Accordingly, it is
ORDERED, ADJUDGED and DECREED:
Defendant’s Motion to Dismiss Second Amended Class Action
Complaint (Doc. # 105) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this 7th
day of January, 2013.

Copies:

All Counsel of Record

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