Patton v. Corinthian Colleges, Inc.

Filing 18

OPINION and ORDER Denying Defendant's 9 Motion to Dismiss. Signed by District Judge Nancy G. Edmunds. (Loury, R)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MELODY PATTON,
Case No. 13-14814
Plaintiff,
Honorable Nancy G. Edmunds
v.
CORINTHIAN COLLEGES, INC. d/b/a
EVEREST COLLEGE,
Defendant.
/

OPINON AND ORDER DENYING DEFENDANT’S MOTION TO DISMISS [9]

This matter comes before the Court on Defendant’s motion to dismiss brought
pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff’s amended complaint alleges
that Defendant violated the Telephone Consumer Protection Act, 47 U.S.C. §§ 227, et seq.
(the “TCPA”), when it made calls to her cellular telephone using an automated telephone
dialing system (“ATDS”) and prerecorded voice. See 47 U.S.C. § 227(b). Being fully
advised in the premises, having read the pleadings, and for the reasons set forth below,
Defendant’s motion to dismiss is DENIED.
I.

Plaintiffs’ Amended Complaint
Plaintiff's one-count, amended complaint alleges that Defendant violated § 227(b) of

the TCPA. Specifically, Plaintiff alleges the following. In or around July 2013, Defendant
began placing calls to her cellular telephone using an automatic telephone dialing system
(“ATDS") and/or using an artificial or prerecorded voice. (Am. Compl., ¶¶ 7, 11, 12, 29.)
Plaintiff's telephone number that Defendant called was assigned to a cellular telephone

service for which Plaintiff incurs charges for incoming calls. (Id. at ¶ 32.) She did not
provide her cellular telephone number to Defendant and did not consent to have Defendant
contact her on her cellular telephone. (Id. at ¶¶ 14-15, 30.) The calls Plaintiff received from
Defendant were not placed for "emergency purposes." (Id. at ¶ 33.) In late July or Early
August, 2013, Plaintiff informed Defendant that she was not interested in its services and
requested that the automated calls cease, but Defendant continued to place automated
calls to Plaintiff's cellular telephone up to three times a day. (Id. at ¶¶ 16-17, 30-31.)
Defendant placed calls from [phone] ("originating number"). (Id. at ¶ 18.)
II.

Rule 12(b)(6) Standard of Review
The Sixth Circuit recently noted that under the United States Supreme Court's

heightened pleading standard laid out in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)
and Ashcroft v. Iqbal, 556 U.S. 662 (2009), “a complaint only survives a motion to dismiss
if it contains sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Estate of Barney v. PNC Bank, Nat'l Assoc., 714 F.3d 920, 924-25
(6th Cir. 2013) (internal quotations and citations omitted). The court in Estate of Barney
goes on to state that under Iqbal, “[a] claim is 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. (internal quotations and citations omitted). Furthermore,
“[w]hile the plausibility standard is not akin to a ‘probability requirement,’ the plausibility
standard does ask for more than a sheer possibility that a defendant has acted unlawfully.”
Iqbal, 556 U.S. at 678. Finally, “where the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has alleged—but it has
not ‘show[n]’—‘that the pleader is entitled to relief.’ ” Id. at 679 (quoting Fed. R. Civ. P.
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8(a)(2)). If the plaintiffs do "not nudge[ ] their claims across the line from conceivable to
plausible, their complaint must be dismissed." Twombly, 550 U.S. at 570.
III.

Analysis
Defendant argues that Plaintiff’s complaint fails to state a claim under the TCPA

because it “does not allege the specific time and date of each alleged violation” of §
227(b)(1)(A)(iii) of the TCPA. Plaintiff argues that, to state a claim under § 227(b) of the
TCPA, it is not necessary to allege the specific time and date of each alleged violation.
This Court agrees with Plaintiff.
"To state a claim under the TCPA for calls made to a cellular phone, a plaintiff must
establish that: Defendant made the call; Plaintiff was charged for the call; and the call was
made using an automatic telephone dialing system or an artificial or prerecorded voice."
Mashiri v. Ocwen Loan Serv., LLC, No. 3:12-cv-02838-L-MDD, 2013 WL 5797584, at *5
(S.D. Cal. Oct. 28, 2013) (internal quotation marks and citation omitted). In Mashiri, the
defendant argued that the plaintiff's TCPA claim must be dismissed because she failed to
plead sufficient facts showing that calls were made by an automatic system. Id.

The

district court rejected that argument, observing that "[a]lthough Plaintiff's allegation that the
Defendant 'would repeatedly call Plaintiff's cellular telephone, using an automatic dialing
system or artificial/prerecorded voice to initiate the telephone call' seems conclusory on its
own, courts have found similarly phrased allegations sufficient to state a claim." Id. (citing
cases). The Mashiri court further observed that, when read as a whole, the plaintiff's
amended complaint sufficiently alleged a TCPA claim. The same is true here. Plaintiff's
amended complaint alleges facts sufficient to state a plausible claim under the TCPA. The

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information Defendant seeks is the proper subject of discovery, but is not required to state
a TCPA claim.
Moreover, the decisions Defendant relies upon fail to support its Rule 8 pleading
argument. In Abbas v. Selling Source, LLC, No. 09 CV 3413, 2009 WL 4884471 (N.D. Ill.
Dec. 14, 2009), after rejecting the defendant's arguments concerning the scope of the
TCPA, it addressed the defendant's insufficiency-of-pleading arguments. It found that the
plaintiff had sufficiently alleged that the text messages he received from the defendant
came from an ATDS. Id. at **3-4. But, it found that the plaintiff's allegations about
"subsequent messages" that also allegedly violated the TCPA were insufficient because
they failed to provide any allegation as to when the plaintiff received those messages, what
the text messages stated, and "from what numbers he received the later messages." Id.
at *2. Unlike the plaintiff's complaint in Abbas, the allegations in Plaintiff's amended
complaint here do provide Defendant with sufficient notice of the time period in which she
claims Defendant made the challenged calls to her cellular phone as well as what number
the calls came from.
In Clayton v. Aaron's Inc., No. 3:13-CV-219, 2013 WL 3148174 (E.D. Va. June 19,
2013), another text message case, the district court held that "Plaintiff fails to state a
[TCPA] claim upon which relief can be granted because calls made by a party attempting
to collect a debt owed to it are exempt from the TCPA." Id. at *2 (internal quotation marks
and citation omitted). In dicta, the Clayton court observed that the plaintiff had "not
sufficiently alleged the use of automatic dialing." Id. Specifically, the district court observed
that the plaintiff failed "to allege any facts regarding the general content, number, timing,
or phone number from which any of the alleged messages were sent that show that it is
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plausible that Defendant used autodialing." Id. at *3. Defendant Corinthian Colleges, Inc.
does not argue here that Plaintiff has not alleged sufficient facts to show that it is plausible
that Defendant used an ATDS or prerecorded voice in connection with its July/August 2013
calls to Plaintiff's cellular phone. Accordingly, both the holding and dicta in Clayton fail to
support Defendant's arguments for dismissal.
IV.

Conclusion
For the above-stated reasons, Defendant's motion to dismiss is DENIED.

s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: March 20, 2014
I hereby certify that a copy of the foregoing document was served upon counsel of record
on March 20, 2014, by electronic and/or ordinary mail.
s/Johnetta M. Curry-Williams
Case Manager
Acting in the Absence of Carol A. Hemeyer

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