Robertson v. ADA Alliance Data Systems, Inc.
Filing
247
ORDER: Defendant ADS Alliance Data Systems, Inc.'s Motion to Dismiss and Motion to Strike Portions of Third Amended Class Action Complaint 209 is DENIED. Signed by Judge Virginia M. Hernandez Covington on 8/20/2013. (LRM)
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
Defendant
Dismiss
matter
ADS
and
comes
Alliance
Motion
to
before
Data
Strike
the
Court
Systems,
Portions
pursuant
Inc.‟s
of
Motion
Third
to
to
Amended
Class Action Complaint (Doc. # 209), filed on June 24,
2013.
Plaintiffs
filed
a
response
in
opposition
to
the
motion on June 27, 2013 (Doc. # 212), and after obtaining
leave of Court, ADS filed a reply to Plaintiffs‟ response
(Doc. # 215). After due consideration and for the reasons
that follow, the Court denies ADS‟ Motion to Dismiss and
Motion to Strike.
I.
Background
Gary Robertson initiated this putative class action in
state
court
on
June
22,
2011,
against
ADS
for
alleged
violations of the Florida Security of Communications Act,
Section 934.01 et seq. (“FSCA”). (Doc. # 2). ADS 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.
(Doc. # 87). The Court subsequently granted Plaintiff leave
to amend the Amended Complaint (Doc. # 100), and the Second
Amended Complaint, filed on July 30, 2012, added Jeremiah
Hallback
as
a
Plaintiff
and
included
an
amended
class
definition (Doc. # 103).
Stalley and Hallback filed a Notice to Correct Record
on December 26, 2012 (Doc. # 130), and an Amended Notice to
Correct Record on December 28, 2012 (Doc. # 131). In the
Amended Notice, Stalley and Hallback state that “Hallback .
. . previously represented to this Court [that he had]
never held any credit accounts with either World Financial
Network National Bank or World Financial Capital Bank [and
-2-
had]
never
been
a
debtor
of
any
account
serviced
by
Defendant.” (Doc. # 131 at ¶ 6). Stalley and Hallback claim
that unbeknownst to Hallback, “Hallback did have a credit
account with the Home Shopping Network . . ., which is a
World
Financial
Representing
Capital
that
the
Bank
account.”
factual
(Id.
discrepancy
at
¶
has
7).
little
importance, Stalley and Hallback argue, “Essentially, the
fact that Mr. Hallback had a HSN account does not impact
the claims in this case.” (Id. at ¶ 11).
On January 16, 2013, ADS moved the Court to strike the
Notices
(Doc.
#
145),
and
on
May
13,
2013,
the
Court
granted ADS‟s Motion to Strike Unauthorized Papers. (Doc. #
196).
The
Court
found
that
“allowing
Plaintiffs
to,
effectively, amend the pleadings – as well as subsequently
filed
motions
–
without
leave
of
Court
and
without
affording Defendant an opportunity to object to such an
amendment, would be prejudicial to Defendant.” (Id. at 67). Stalley and Hallback moved to amend the Second Amended
Complaint (Doc. # 197), and on June 4, 2013, the Court
granted the motion and denied as moot all pending motions
(Doc. # 206). Stalley and Hallback filed the Third Amended
Complaint the same day. (Doc. # 208).
-3-
On June 24, 2013, ADSs filed the instant Motion to
Dismiss
and
Motion
to
Strike
Portions
of
Third
Amended
Class Action Complaint. (Doc. # 209). Stalley and Hallback
responded in opposition to the motion on June 27, 2013
(Doc.
#
212),
and
ADS
filed
a
reply
to
Stalley
and
Hallback‟s response on July 3, 2013 (Doc. # 215).
II.
Motion to Dismiss
A.
Legal Standard
A complaint must contain a short and plain statement
of
the
claim
showing
that
the
pleader
relief. Fed. R. Civ. P. 8(a)(2).
dismiss,
a
trial
court
is
entitled
to
In reviewing a motion to
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).
However,
courts are not “bound to accept as true a legal conclusion
couched as a factual allegation.” Papasan v. Allain, 478
U.S. 265, 286 (1986).
In Bell Atlantic Corp. v. Twombly, the Supreme Court
articulated
the
standard
by
which
claims
should
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
-4-
be
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
Procedure
accepted
8(a)
as
with
calls
true,
to
Twombly,
“for
sufficient
„state
plausible on its face.‟”
Federal
a
claim
to
Rule
factual
relief
for
relief
must
Civil
matter,
that
is
Ashcroft v. Iqbal, 556 U.S. 662,
663 (2009) (quoting Twombly, 550 U.S. at 570).
claim
of
include
“factual
A plausible
content
[that]
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
B.
Id.
Analysis
Stalley
and
Hallback
allege
causes
of
action
for
damages and injunctive relief, on behalf of themselves and
a
putative
class
of
similarly
situated
individuals,
for
violations of the FSCA. (Doc. # 208). 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
-5-
the Act.” France v. France, 90 So. 3d 860, 862 (Fla. 5th
DCA 2012).
In
the
Dismiss
instant
(Doc.
#
Motion,
105),
as
ADS
in
the
claims
first
that
Motion
the
to
operative
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. # 209 at 10). ADS argues that the proposed
class
definitions
fail
for
several
reasons,
such
as
encompassing persons who do not have a cause of action
under
the
FSCA,
including
individuals
with
a
cellular
telephone number associated with an address in Florida who
received a telephone call from ADS while that person was
physically located outside of Florida. (Id. at 12).
This
Court
considering
the
addressed
sufficiency
the
of
the
appropriateness
class
this stage in the proceedings when it
definitions
denied
of
at
the first
Motion to Dismiss. (Doc. # 136 at 5-6). The Court again
finds that ADS‟ arguments regarding the class definitions
do
not
directly
challenge
the
sufficiency
of
the
allegations in the Third Amended Complaint. Rather, ADS‟s
arguments
contemplate
the
definition
-6-
and
scope
of
the
putative class. Accordingly, the Court finds – as it did
when deciding the first Motion to Dismiss
arguments
are
best
addressed
in
ruling
on
–
that these
Stalley
and
Hallback‟s Motion to Certify Class when the Court has the
opportunity to consider evidence beyond the four corners of
the complaint.1 Likewise, ADS‟ assertion that Stalley and
Hallback lack standing to pursue claims on behalf of the
first sub-class requires analysis well beyond the face of
the Third Amended Complaint.
ADS
also
claims
that
“insufficient
facts
have
been
pled to support [the] application of the FSCA” because “the
Third Amended Complaint is silent as to where the alleged
interceptions took place.” (Id. at 5). However, ADS does
not demonstrate that a prima facie element of an FSCA claim
is missing from the Third Amended Complaint. Instead, ADS
in
essence
seeks
to
prove
that
an
additional
element
exists. In order to thoroughly consider ADS‟ claim, the
Court would be required to contemplate evidence beyond the
face of the Third Amended Complaint and, therefore, the
1
Stalley
and
Hallback‟s
Third
Motion
for
Class
Certification (Doc. # 210) is currently pending before the
Court.
-7-
Court
finds
that
the
claim
will
be
more
appropriately
addressed when ruling on the Motion for Summary Judgment.2
The
Third
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
Third
Amended
Complaint contains factual allegations raising Stalley and
Hallback‟s 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 is liable for
the misconduct alleged.”
The Court therefore denies the
Motion to Dismiss.
III. Motion to Strike
A. Legal Standard
Federal Rule of Civil Procedure 12(f) provides, “The
court may strike from a pleading an insufficient defense or
any
redundant,
immaterial,
impertinent,
or
scandalous
matter.” Fed. R. Civ. P. 12(f). “„A motion to strike is a
drastic
remedy,‟
which
is
disfavored
ADS‟ Motion for Summary Judgment
currently pending before the Court.
2
-8-
by
the
(Doc.
#
courts.”
243)
is
Thompson v. Kindred Nursing Ctrs. E., LLC, 211 F. Supp. 2d
1345, 1348 (M.D. Fla. 2002) (quoting Augustus v. Bd. of
Pub. Instruction of Escambia Cnty., Fla., 306 F.2d 862, 868
(5th Cir. 1962)). Generally, “„[a] court will not exercise
its discretion under the rule to strike . . . unless the
matter sought to be omitted has no possible relationship to
the
controversy,
may
confuse
the
issues,
or
otherwise
prejudice a party.‟” Kahama VI, LLC v. HJH LLC, No. 8:11cv-2029-T-30TBM, 2013 WL 1760254, at *8 (M.D. Fla. Apr. 24,
2013) (quoting Reyher v. Trans World Airlines, Inc., 881 F.
Supp. 574, 576 (M.D. Fla. 1995)).
B.
Analysis
ADS claims that “the Third Amended Complaint goes far
beyond
th[e]
„footnote‟
Hallback
as
requirement[s
that
a]
is
of
clearly
pre-emptive
Rule
8]
designed
attempt
to
by
to
include
a
[Stalley
and
rehabilitate
the
credibility of Mr. Hallback regarding his prior claims as
to his status as an accountholder.” (Doc. # 209 at 3).
Striking portions of a pleading is a drastic measure
and the Court declines to take it now. Even if the Court
accepts ADS‟ argument that the footnote in question is not
entirely material to a claim, this Court is fully capable
of
separating
the
wheat
from
-9-
the
chaff
in
pleadings.
Striking
the
offending
footnote
is
unnecessary.
The
footnote presents no danger of confusing the issues or of
prejudicing
ADS
and,
accordingly,
the
Court
denies
the
Motion to Strike.
Accordingly, it is
ORDERED, ADJUDGED and DECREED:
Defendant ADS Alliance Data Systems, Inc.‟s
Dismiss
and
Motion
to
Strike
Portions
of
Motion to
Third
Amended
Class Action Complaint (Doc. # 209) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this
20th day of August, 2013.
Copies:
All Counsel of Record
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