Buslepp v. B&B Entertainment, LLC

Filing 19

ORDER denying 13 Motion to Dismiss for Failure to State a Claim. Signed by Judge James I. Cohn on 5/3/2012. (prd)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 12-60089-CIV-COHN/Seltzer
BRANDON M BUSLEPP, an individual,
on behalf of himself and all others
similarly situated,
Plaintiff,,
vs.
B&B ENTERTAINMENT, LLC, a Florida
limited liability company (doing business
as “The Playhouse”),
Defendant.
___________________________________/
ORDER DENYING MOTION TO DISMISS
THIS CAUSE is before the Court upon Defendant’s Motion to Dismiss [DE 13],
Plaintiff’s Response in Opposition [DE 14], and Defendant’s Reply [DE 17]. The Court
has carefully considered the filings in this action and is otherwise fully advised in the
premises.
I. BACKGROUND
Plaintiff Brandon Buslepp (“Plaintiff”) filed this class action for violations of the
Telephone Consumer Protection Act (“TCPA”). Plaintiff alleges that Defendant B&B
Entertainment, which owns and operates an adult nightclub, sent unsolicited commercial
text calls to potential customers using an automatic telephone dialing system and
without prior express consent, in violation of 47 U.S.C. § 227(b)(1)(A)(iii).1 Plaintiff
received unwanted commercial text messages from Defendant starting on or about

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Count I alleges negligent violations of the § 227(b)(1)(A)(iii), while Count II
alleges willful violations of the same provision.

October 26, 2011. Compl., ¶ 13. The specific text language is recited in paragraph 13
of the Complaint. Plaintiff alleges that identical text messages were sent to Plaintiff’s
and other putative class members by Defendant using an automatic telephone dialing
system. Compl., ¶ 14. Plaintiff further alleges that all the text messages were sent from
a telephone number which is owned, assigned, leased, operated or otherwise used by
Defendant or its agents for marketing purposes to encourage recipients to purchase of
goods or services at Defendant’s business. Id., ¶ 15. Plaintiff asserts that the majority
of the text messages were sent from the 773 area code. In his class action allegations,
Plaintiff alleges that more then forty-one (41) individuals are in the class. Id., ¶ 18.
Defendant moves to dismiss the Complaint for failure to state a claim. Plaintiff
opposes the motion.
II. DISCUSSION
Pursuant to the United States Supreme Court decision in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007), to survive a motion to dismiss, a complaint must contain
factual allegations which are “enough to raise a right to relief above the speculative level,
on the assumption that all the allegations in the complaint are true (even if doubtful in
fact).” 550 U.S. at 555. “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.” Id. In Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1949-50 (2009), the Supreme Court further stated that a court
need not accept legal conclusions as true, but only well-pleaded factual allegations are
entitled to an assumption of truth.
Defendant contends that Plaintiff has failed to alleged “the requisite who, what,

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where and when,” and does not allege what numbers were called and whether the
Defendant ceased communications upon Plaintiff’s request. A TCPA claimant must
allege that a defendant initiated a call using an automotive dialing device (“ATDS”), and
that prior express consent has not been given. Defendant argues that Plaintiff’s
allegation regarding the use of such a device is pure speculation, unsupported by any
facts. However, the allegation that Defendant used such a device (or one that has the
capacity to store or produce telephone numbers to be called and to dial those numbers)
is a factual allegation under Twombly and Iqbal. Compl., ¶ 14; Satterfield v. Simon &
Schuster, Inc., 569 F.3d 946, 951 (9th Cir. 2009) (issue of whether defendant’s device is
an ATDS is question of fact).
Defendant argues that Plaintiff’s complaint fails because it does not provide
“specific allegations” as to who Defendant called and when. The Complaint does
provide specific information that Plaintiff was called on or about October 26, 2011 and
three other dates. Id., ¶ 13. The fact that Plaintiff does not identify the specific
telephone number called or the identities of the putative class members is not fatal
under Twombly and Iqbal. Plaintiff has alleged the dates and content of the text
messages sent from a 773 telephone number, and that numerous other persons
received the same text to their cell phones, and that Plaintiff has never provided his cell
phone number to Defendant. These factual allegations are sufficient to meet plaintiff’s
obligation to provide the grounds of his entitlement to relief, and provide sufficient notice
to Defendant to answer the complaint.2 At least one published district court decision,
Kramer v. Autobytel, Inc., 759 F. Supp. 2d 1165, 1171 (N.D. Cal. 2010), reached a

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Any remaining facts required for Defendant to more specifically identify the text
messages can be disclosed during discovery.
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similar conclusion based upon similar allegations. Defendant does not cite to any
TCPA decisions in support of its argument in favor of dismissal.

III. CONCLUSION
Accordingly, it is ORDERED and ADJUDGED as follows:
1.

Defendant’s Motion to Dismiss [DE 13] is hereby DENIED;

2.

Defendant shall file its Answer to the Complaint by May 17, 2012.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,

Florida, this 3rd day of May, 2012.

copies to:
counsel of record on CM/ECF

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