Reese v. Marketron Broadcast Solutions, LLC et al

Filing 36

ORDER AND REASONS granting 10 Motion to Dismiss for Failure to State a Claim. For the foregoing reasons, the Court GRANTS defendants' motion to dismiss. Plaintiff's claims against Atlantic, BWA, and Citadel are DISMISSED WITH PREJUDICE. Signed by Judge Sarah S. Vance on 1/3/2018. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RENEE REESE

CIVIL ACTION

VERSUS

NO. 17-9772

MARKETRON BROADCAST
SOLUTIONS, LLC, ET AL.

SECTION “R” (1)

ORDER AND REASONS
Defendants Atlantic Recording Corporation (Atlantic), Bread Winners’
Association (BWA), LLC (BWA), and Citadel Broadcasting Company
(Citadel) move to dismiss plaintiff’s claims in her first amended complaint.1
For the following reasons, the Court grants the motion.

I.

BACKGROUND
Plaintiff Renee Reese filed this putative class action seeking damages

and equitable relief under the Telephone Consumer Protection Act (TCPA),
47 U.S.C. § 227. In her first amended complaint, plaintiff alleges that
defendants Marketron Broadcast Solutions, LLC (Marketron), Atlantic,
BWA, Citadel, and Studio Network-Orpheum LLC sent unsolicited text

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R. Docs. 10, 11.

messages to plaintiffs, and others similarly situated, promoting live
concerts.2 Plaintiff asserts that defendants sent these messages using an
automatic telephone dialing system.3
Atlantic, BWA, and Citadel now move to dismiss plaintiff’s claims in
the first amended complaint under Federal Rule of Civil Procedure 12(b)(6).
Plaintiff did not oppose these motions, but instead filed a second amended
complaint which names only Marketron as a defendant. 4 Plaintiff has also
filed a motion for class certification. 5

II.

STANDARD OF REVIEW
To survive a Rule 12(b)(6) motion to dismiss, plaintiffs must plead

enough facts to “state a claim to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 547 (2007)). A claim is facially plausible “when the plaintiff
pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. at 678. A court

R. Doc. 4 at 3 ¶ 15.
Id. at 3-4 ¶ 17.
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R. Doc. 29. Marketron has moved to strike this second amended
complaint because it was filed without leave of court or consent of the
parties. R. Doc. 32. In response, plaintiff moved for leave to amend her
pleadings. R. Doc. 35.
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R. Doc. 34.
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must accept all well-pleaded facts as true and must draw all reasonable
inferences in favor of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d
228, 239, 244 (5th Cir. 2009). But the Court is not bound to accept as true
legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678.
A legally sufficient complaint must establish more than a “sheer
possibility” that plaintiffs’ claim is true. Id. It need not contain detailed
factual allegations, but it must go beyond labels, legal conclusions, or
formulaic recitations of the elements of a cause of action. Twombly, 550 U.S.
at 555. In other words, the face of the complaint must contain enough factual
matter to raise a reasonable expectation that discovery will reveal evidence
of each element of the plaintiffs’ claim. Lormand, 565 F.3d at 257. If there
are insufficient factual allegations to raise a right to relief above the
speculative level, Twombly, 550 U.S. at 555, or if it is apparent from the face
of the complaint that there is an insuperable bar to relief, Jones v. Bock, 549
U.S. 199, 215 (2007); Carbe v. Lappin, 492 F.3d 325, 328 n.9 (5th Cir. 2007),
the claim must be dismissed.

III. DISCUSSION
The TCPA makes it unlawful to make a call using an automatic
telephone dialing system “to any telephone number assigned to a . . . cellular
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telephone service,” without the recipient’s express consent. 47 U.S.C. §
227(b)(1)(A)(iii). It also provides a private right of action to seek injunctive
relief and damages. Id. § 227(b)(3).
Plaintiff’s first amended complaint fails to state a TCPA claim because
it rests on conclusory allegations of collective wrongdoing. The complaint
directs its allegations towards “defendants” as a group without explaining
any particular defendant’s involvement. As the Seventh Circuit recently
noted, “liability is personal.” Bank of Am., N.A. v. Knight, 725 F.3d 815, 818
(7th Cir. 2013). Because the notice pleading requirement of the Federal
Rules of Civil Procedure entitles “[e]ach defendant . . . to know what he or
she did that is asserted to be wrongful,” allegations based on “a theory of
collective responsibility” cannot withstand a motion to dismiss. Id. That
plaintiff filed a second amended complaint alleging wrongful conduct only
by Marketron highlights the dearth of factual allegations against the other
defendants. Thus, plaintiff’s first amended complaint does not state a claim
against Atlantic, BWA, and Citadel.

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IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS defendants’ motion to

dismiss.

Plaintiff’s claims against Atlantic, BWA, and Citadel are

DISMISSED WITH PREJUDICE.

3rd
New Orleans, Louisiana, this _____ day of January, 2018.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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