Gardner v. Credit Management, L.P.
Filing
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ORDER granting 6 motion to dismiss Complaint, with leave to file Amended Complaint within fourteen days. See Order for details. Signed by Judge Elizabeth A. Kovachevich on 3/17/2015. (JM)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MELISSA GARDNER,
Plaintiff,
v.
CASE NO. 8:14-CV-1677-T-17EAJ
CREDIT MANAGEMENT, L.P.,
Defendant.
/
ORDER
This cause is before the Court on:
Dkt. 6
Dkt. 9
Motion to Dismiss
Corrected Response in Opposition
In the Complaint, Plaintiff Melissa Gardner alleges violations of 47 U.S.C. Sec.
227, Restrictions on use of telephone equipment, against Defendant Credit
Management, L.P. Plaintiff Gardner alleges that Defendant Credit Management, L.P.
called Plaintiffs cell phone repeatedly, with an automated telephone dialing system,
without express consent. Plaintiff Gardner seeks the award of statutory damages
pursuant to 47 U.S.C. Sec. 227(b)(3), and the award of statutory damages pursuant to
47 U.S.C. Sec. 227(d)(3)., the award of reasonable costs and court costs, and
injunctive relief.
In the Complaint, Plaintiff Gardner alleges that Plaintiff was assigned a
telephone number by Metro PCS in April, 2014, and Defendant’s telephone calls were
for a party assigned the telephone number before it was assigned to Plaintiff. Plaintiff
Gardner alleges that Plaintiff Gardner never gave express consent to be called with an
ATDS at Plaintiffs cell phone number, and Defendant called Plaintiffs cell phone
Case No. 8:14-CV-1677-T-17EAJ
repeatedly with an ATDS, without Plaintiffs consent.
Defendant Credit Management, L.P. moves to dismiss the Complaint under Fed.
R. Civ. P. 12(b)(6).
Plaintiff Gardner opposes Defendant’s Motion. Plaintiff Gardner argues that
Plaintiff has identified the parties, the underlying statute and the offending conduct.
Plaintiff further argues that the TCPA is a strict liability statute, and allegations of intent
or negligence are not necessary, nor are further allegations of the specific manner in
which the calls were placed.
I. Standard of Review
“Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain a “short
and plain statement of the claim showing that the pleader is entitled to relief.” “[D]etailed
factual allegations” are not required, Bell Atlantic v. Twomblv. 550 U.S. 544, 555 (2007),
but the Rule does call for sufficient factual matter, accepted as true, to “state a claim to
relief that is plausible on its face,” id., at 570. 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, jd , at 556. Two working principles
underlie Twomblv. First, the tenet that a court must accept a complaint's allegations as
true is inapplicable to threadbare recitals of a cause of action's elements, supported by
mere conclusory statements. Id., at 555. Second, only a complaint that states a
plausible claim for relief survives a motion to dismiss. Determining whether a complaint
states a plausible claim is context-specific, requiring the reviewing court to draw on its
experience and common sense. JcL, at 556. A court considering a motion to dismiss
may begin by identifying allegations that, because they are mere conclusions, are not
entitled to the assumption of truth. While legal conclusions can provide the complaint's
framework, they must be supported by factual allegations. When there are
Case No. 8:14-CV-1677-T-17EAJ
well-pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief. See Ashcroft v.
labal. 129 S.Ct. 1937, 1955-1956 (2009)(quoting Bell Atlantic v. Twomblv. 550 U.S. 544
(2007).
II. Discussion
Defendant Credit Management, L.P. moves to dismiss the Complaint due to the
absence of sufficient factual allegations to support Plaintiffs TCPA claim. Defendant
argues that merely alleging that a defendant used an ATDS is insufficient to survive a
motion to dismiss. See Speidel v. JP Morgan Chase & Co.. 2014 WL 582881 (M.D.
Fla. 2014)(allegations which follow language of statute are consistent with liability; in
absence of allegations of nature of calls, impossible to determine whether calls are
exempt or unlawful). The thrust of cases like Speidel is that a plaintiff is required to
allege facts sufficient to show plausibility, more than mere possibility.
Plaintiff Gardner has not included any allegation as to the content of the
telephone calls, or the circumstances that suggest that Defendant used an ATDS to
make the telephone calls. See Padilla v. Whetstone Partners. LLC. 2014 WL 3418490
(S.D. Fla. 2014); McGinitv v. Tracfone Wireless. Inc.. 5 F.Supp.3d 1337, 1342(M.D. Fla.
2014); Johansen v. Vivant. Inc.. 2012 WL 6590551, at *3 (N.D. III. Dec. 18, 2012)(“lt is
not unreasonable ... to require a plaintiff to describe the phone messages he received
in laymen's terms or provide the circumstances surrounding them to establish his belief
that the messages were pre-recorded or delivered via the [automatic telephone dialing
system].”)
After consideration, the Court grants Defendant’s Motion to Dismiss, with leave
to file an amended complaint which includes allegations describing the phone
messages received in laymen’s terms, and which provide the circumstances
Case No. 8:14-CV-1677-T-17EAJ
surrounding Plaintiffs receipt of the message that support Plaintiffs belief that the
messages were delivered by an ATDS. Accordingly, it is
ORDERED that Defendant’s Motion to Dismiss (Dkt. 6) is granted, with leave to
file an amended complaint as stated above, within fourteen days.
RED in Chambers, in Tampa, Florida on this
Copies to:
All parties and
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