Daniel v. West Asset Management Inc

Filing 20

OPINION AND ORDER Granting 16 Motion for Partial Dismissal. Signed by District Judge Robert H. Cleland. (DOpa)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ROCHELLE DANIEL
Plaintiff,
v.

Case No. 11-10034

WEST ASSET MANAGEMENT, INC.,
Defendant.
/
OPINION AND ORDER
GRANTING DEFENDANT’S MOTION FOR PARTIAL DISMISSAL
On April 6, 2011, Plaintiff Rochelle Daniel filed her third amended complaint
against Defendant West Asset Management, Inc. Among its twenty-two counts, the
complaint asserts fourteen counts of violating the Telephone Consumer Protection Act
(“TCPA”) by placing automated and prerecorded telephone calls to Plaintiff’s residential
landline for the purpose of debt collection. On April 20, 2011, Defendant filed a motion
for partial dismissal for failure to state a claim upon which relief can be granted, arguing
the FTCA prohibition on automated and prerecorded telephone calls is inapplicable to
calls regarding debt collection. Plaintiff responded on May 17, 2011, and Defendant
replied on May 31, 2011. Having reviewed the briefs, the court concludes a hearing on
this motion is unnecessary. See E.D. Mich. LR 7.1(f)(2). For the reasons stated below,
the court will grant Defendant’s motion and dismiss Counts I–XIV of the Complaint.
I. STANDARD
When ruling on a motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6), the court must construe the complaint in a light most favorable to the plaintiff

and accept all the factual allegations as true. Tackett v. M&G Polymers, USA, LLC, 561
F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir.
2009)). In doing so, “the court must draw all reasonable inferences in favor of the
plaintiff.” Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). Yet, the court
“need not accept as true legal conclusions or unwarranted factual inferences.” Id.
(quoting Gregory v. Shelby Cnty., 220 F.3d 433, 466 (6th Cir. 2000)). Although a
heightened fact pleading of specifics is not required, “[t]o survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for
relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Though decidedly generous, this standard of review does require more than the
bare assertion of legal conclusions.
[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 a cause of action’s elements will not do. Factual allegations
must be enough to raise a right to relief above the speculative level on the
assumption that all the complaint’s allegations are true.
Twombly, 550 U.S. at 555 (citing Fed. R. Civ. P. 8(a)). Further, the complaint must
“give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which
it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957) abrogated on other grounds by
Twombly, 550 U.S. 544. In application, a “complaint must contain either direct or
inferential allegations respecting all material elements to sustain a recovery under some
viable legal theory.” Eidson v. State of Tenn. Dep’t of Children’s Servs., 510 F.3d 631,
634 (6th Cir. 2007) (citation omitted). Therefore, “to survive a motion to dismiss, the
plaintiff must allege facts that, if accepted as true, are sufficient to raise a right to relief
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above the speculative level and to state a claim to relief that is plausible on its face.”
Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009) (citations and internal
quotation omitted). Despite these requirements, a court cannot grant a motion to
dismiss under Rule 12(b)(6) based upon its disbelief of a complaint’s well-pled factual
allegations. Twombly, 550 U.S. at 556.
II. DISCUSSION
In moving for partial dismissal, Defendant challenges only the legal adequacy of
Plaintiff’s claims under the TCPA. Assuming, arguendo, that Plaintiff has stated a prima
facie claim under 42 U.S.C. § 227, Defendant argues that the alleged telephone calls
are covered by exemptions in 47 C.F.R. § 64.1200. In relevant part, the TCPA states
that “[i]t shall be unlawful . . . to initiate any telephone call to any residential telephone
line . . . using an artificial or prerecorded voice to deliver a message without the prior
express consent of the called party, unless the call . . . is exempted by rule or order by
the [Federal Communications] Commission under paragraph (2)(B).” 42 U.S.C.
§ 227(b)(1)(B). Paragraph (2)(B) of the same subsection delegates authority to
implement regulations and to exempt calls that are either not commercial in nature or
that are commercial but do not affect the privacy rights of telephone consumers and do
not transmit “unsolicited advertisements.” 42 U.S.C. § 227(b)(2)(B). The Federal
Communications Commissions has adopted regulations pursuant to § 227(b)(2)(B),
including two exemptions relevant to Plaintiff’s TCPA claims. First, §227(b)(1)(B)
imposes no liability for a prerecorded call if it “[i]s made for a commercial purpose but
does not include or introduce an unsolicited advertisement or constitute telephone
solicitation.” 47 C.F.R. § 64.1200(a)(2)(iii). Second, §227(b)(1)(B) imposes no liability
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for a prerecorded call if it “[i]s made to any person with whom the caller has an
established business relationship at the time the call is made.” 47 C.F.R.
§ 64.1200(a)(2)(iv). Both exceptions apply to the conduct alleged in Counts I-XIV of
Plaintiff’s complaint.
Viewing the facts alleged in the complaint in a light most favorable to Plaintiff,
Defendant made fourteen automated telephone calls to Plaintiff for a commercial
purpose and without Plaintiff’s consent. Even with such facts, however, Defendant is
not liable under the TCPA because the calls fall within the two exceptions listed above.
Prerecorded telephone calls made for the purpose of debt collection have consistently
been found to fit both exemptions for calls not containing “unsolicited advertisement or
constitute telephone solicitation” and for calls made to a recipient “with whom the caller
has an established business relationship.” E.g., Pugliese v. Professional Recovery
Service, Inc., No. 09-12262, 2010 WL 2632562, at *7 (E.D. Mich. June 29, 2010);
Meadows v. Franklin Collection Service, Inc., No. 10-13474, 2011 WL 479997, at *4
(11th Cir. Feb. 11, 2011); In the Matter of Rules and Regulations Implementing the
Telephone Consumer Protection Act of 1991, 7 FCC Rcd. 8752, 8773 (1992). Plaintiff’s
contentions that the debt was not properly owing and that Defendant was not properly
authorized by the nonparty claiming a right to collect the debt are immaterial to the
analysis under the TCPA. Because Defendant’s calls were for debt collection purposes,
they are exempted from liability under § 227(b)(1)(B). Therefore, the court will grant
Defenant’s motion to dismiss Plaintiff’s FTCA claims.
III. CONCLUSION

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IT IS ORDERED that Defendant’s motion for partial dismissal [Dkt. # 16] is
GRANTED. Counts I–XIV of Plaintiff’s complaint are DISMISSED.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: June 14, 2011
I hereby certify that a copy of the foregoing document was mailed to Rochelle Daniel
and counsel of record on this date, June 14, 2011, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

S:\Cleland\JUDGE'S DESK\C1 ORDERS\11-10034.DANIEL.Dismiss.TCPA.12(b)(6).nkt.wpd

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