State of Missouri v. Charter Communications, Inc.

Filing 25

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant Charter's Partial Motion to Dismiss (ECF No. 9 ) is GRANTED, in part, and DENIED, in part. Count II is DISMISSED without prejudice. IT IS FURTHER ORDERED that Plaintiff's Motion to Strike Defendant's Affirmative Defenses (ECF No. 19 ) is DENIED. Signed by District Judge Ronnie L. White on April 21, 2016. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
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STATE OF MISSOURI, ex rel.
Attorney General CHRIS KOSTER,
Plaintiffs,

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v.

CHARTER COMMUNICATIONS, INC.
d/b/a CHARTER COMMUNICATIONS,
Defendant.

No. 4:15-CV-1593 RLW

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MEMORANDUM AND ORDER

This matter is before the court on Defendant Charter' s Partial Motion to Dismiss (ECF
No. 9) and Plaintiffs Motion to Strike Defendant' s Affirmative Defenses (ECF No. 19). These
matters are fully briefed and ready for disposition.
BACKGROUND 1

Plaintiff the State of Missouri, at the relation of Missouri Attorney General Chris Koster,
filed claims against Defendant Charter Communications, Inc. ("Charter") pursuant to the
Telephone Consumer Protection Act, 47 U.S.C. §227 ("TCPA"), the Telemarketing Sales Rule,
16 C.F.R. Part 310 (the "TSR"), the Missouri No-Call Law, Mo. Rev. Stat. §§407.1090,
RS.Mo., et seq., and the Missouri Telemarketing Practices Law, Mo. Rev. Stat. §§407.1070,
RS.Mo., et seq. (Complaint for Civil Penalties, Permanent Injunctions, and Other Equitable
Relief ("Complaint" or "Compl. "), ECF No. 1, ifl ).
1

When ruling on a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for failure to state
a claim, the Court must take as true the alleged facts and determine whether they are sufficient to
raise more than a speculative right to relief. Bell At!. Corp. v. Twombly, 550 U.S. 544, 555
(2007).

I.

Motion to Dismiss
A. Standard of Review

In ruling on a motion to dismiss or a motion for judgment on the pleadings, the Court
must view the allegations in the complaint liberally in the light most favorable to Plaintiff.
Eckert v. Titan Tire Corp., 514 F.3d 801, 806 (8th Cir. 2008) (citing Luney v. SGS Auto Servs.,
432 F.3d 866, 867 (8th Cir. 2005)).

Additionally, the Court "must accept the allegations

contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving
party." Coons v. Mineta, 410 F.3d 1036, 1039 (8th Cir. 2005) (citation omitted). To survive a
motion to dismiss, a complaint must contain "enough facts to state a claim to relief that is
plausible on its face ." Bell At/. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (abrogating the "no
set of facts" standard for Fed. R. Civ. P. 12(b)(6) found in Conley v. Gibson, 355 U.S. 41 , 45-46
(1957)). While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, a plaintiffs obligation to provide the grounds of his entitlement to relief
"requires more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do." Twombly, 550 U.S. at 555; Huang v. Gateway Hotel Holdings, 520 F.
Supp. 2d 1137, 1140 (E.D. Mo. 2007).
B. Discussion
1. Count I

Defendant moves to dismiss Count I because the Complaint does not allege sufficient facts to
result in liability under 16 C.F. R. §310.4(b)(l)(iii)(B), namely that (1) a person was on the nocall list; and (2) the person received a telemarketing call when on the no-call list. (ECF No. 9,
~3).

Charter asserts that Plaintiff alleges a claim under 16 C.F.R. §310.4(b)(l)(iii)(B) because

subsection 310.4(b)(l)(iii)(B) does not prohibit telemarketing calls made to persons who have

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not registered for the federal no-call registry. (ECF No. 10 at 4). Charter maintains that Plaintiff
has not pleaded a section (b)(l)(iii)(B) claim because the Complaint does not allege that a single
identified person was on the federal no-call list and that they received a call while on the list.
Charter states that the four individuals that Plaintiff uses as examples to support all the factual
allegations asserted by his claims are not alleged to have a telephone number registered on the
federal or Missouri no-call lists. (ECF No. 10 at 4 (citing Compl., ifif51a-51d)). Charter further
argues that Plaintiff has generally alleged that Charter called "many customers," which does not
give Charter fair notice of Plaintiffs claims. (ECF No. 10 at 4-5). Charter states that, at a
minimum, Plaintiff must allege who was called. (ECF No. 18 at 2-3). Charter provides that the
Complaint is merely conclusory and does not provide it with proper notice, particularly "Charter
cannot determine whether the call actually occurred or whether one of the many exceptions to
the general prohibition contained in the TSR apply."

(ECF No. 10 at 5). Finally, Charter

maintains that Plaintiff cannot rely on the list of consumer complaints because they are matters
outside the pleadings. (ECF No. 18 at 5).
In response, Plaintiff contends that he has alleged the elements that Charter asserts are
insufficient. First, Plaintiff alleged, "Many of the Missouri consumers who received calls from
Charter on the Missouri Do-Not-Call List and/or the Federal Do-Not-Call List." (ECF No. 15 at
5 (citing Compl., if49)). The Complaint also alleges "In at least hundreds of instances, in
connection with telemarketing, Charter initiated or caused others to initiate outbound telephone
calls to customers' telephone numbers on the Federal Do-Not-Call registry, in violation of the
TSR, 16 C.F.R. §310.4(b)(l)(iii)(B)." (ECF No. 15 at 5 (citing Compl., if55)). Plaintiff asserts
that he has received 350 complaints regarding Charter' s telemarketing practices. (ECF No. 15 at
5-6).

Plaintiff claims that to enumerate all 350 complaints would go beyond the Rule 8

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requirement of a "short and plain statement of the claim showing that he pleader is entitled to
relief. " (ECF No. 15 at 5-6 (citing Fed. R. Civ. P. 8(a)(2)). Plaintiff further maintains that courts
have held that a plaintiff need not allege that Charter made a call on a date certain to a specific
number on the no-call list to prove adequate notice to a TCPA defendant. (ECF No. 15 at 6-7
(citing cases)).

Plaintiff states that he provided Charter with complaints filed against it from

January 11 , 2013 through January 14, 2015, in the process of the investigation that preceded this
lawsuit and, during discovery, Plaintiff will provide all remaining consumer complaints filed
during the relevant time period. (ECF No. 15 at 7). Therefore, Plaintiff asserts that he has
adequately pleaded Count I.
The Court holds that, in a case such as this, which alleges hundreds of violations, Plaintiffs
allegations of four representative consumer complaints are sufficient to allege a claim. The
majority of district courts "do not require such detail at the pleading stage in order to provide
adequate notice to a TCPA defendant." Ott v. Mortgage Jnv'rs Corp. of Ohio , 65 F. Supp. 3d
1046, 1059 (D. Or. 2014) ; Robinson v. Midland Funding, LLC, No. 10CV2261 MMA AJB, 2011
WL 1434919, at *3 (S .D. Cal. Apr. 13, 2011) (federal "notice pleading standards do not require a
plaintiff to allege details at the pleading stage about the time and context" of every telephone
call).

Here, Plaintiff has made sufficient factual allegations regarding Defendant's calls in

violation of the TCP A to survive a motion to dismiss. "[I]f there is a question about the phone
number at issue, it can be addressed through discovery." Jackson v. HSBC Mortg. Servs., Inc.,
No. 2:14-CV- 1240-RDP, 2014 WL 5100089, at *4 (N.D. Ala. Oct. 10, 2014); see also Sprogis
v. Suntrust Bank, No. 6:13- CV- 365- 0rl- 37, 2013 WL 2456090, at *2 (M.D. Fla. June 6, 2013)

(information such as the frequency of the calls, the date of the class, and the telephone number
from which the call were received "is more likely to be in Defendant's records and accessible

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through discovery"); Ott, 65 F. Supp. 3d at 1060. Therefore, the Court denies Charter' s motion
to dismiss as to Count I.

2. Count II
Charter moves to dismiss Count II because the Complaint does not allege sufficient facts to
support a claim under the TCP A because the Attorney General does not allege that Charter used
an autodialer to call a cell phone. (ECF No. 9,

~4).

Charter claims that "Count II misses an

essential element of the TCP A- that the calls at issue were made to [a] cellular phone, and not a
land line." (ECF No. 10 at 6). Charter asserts that the TCPA only prohibits the use of an
autodialer when contacting a cellular phone, not to initiate a call to a residence. (ECF No. 10 at
6). Charter states that to state a claim under the TCP A autodialer provision, a Plaintiff must
show that Charter (1) "called a number," (2) "assigned to a cellular telephone service," (3)
"using an automatic dialing system or prerecorded voice." (ECF No. 10 at 6 (citing De Los

Santos v. Millward Brown, Inc., No. 13-80670-CV, 2014 WL 2938605, at *3 (S.D. Fla. June 30,
2014) (quoting Breslow v. Wells Fargo Bank, NA ., 857 F.Supp.2d 1316, 1319 (S.D. Fla. 2012)).
Charter asserts that Plaintiffs Complaint erroneously alleges that the relevant statutory section
prohibits telemarketing calls to cellular phones "as well as" the use ·of an autodialer. (ECF No.
10 at 7 (citing Comp!., ~20)). Charter asserts that the statute precludes using either an autodialer
or robocalls to make certain types of calls to cell phones, but telemarketers may use an autodialer
to call residential numbers.

(ECF No. 10 at 6-7 (citing 47 U.S.C. §227(b)(l)(A)(iii) and

§227(b)(l)(B)). Accordingly, Charter asserts that Count II should be dismissed.
In response, Plaintiff contends that the Complaint alleges that Charter used an automatic
telephone dialing system capable of, inter alia, the following: (a) generating numbers from
calling lists and dialing them without human intervention; (b) storing numbers and dialing those

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nunibers from a database of numbers; (c) storing numbers and dialing those numbers at random;
and (d) storing numbers and dialing those numbers sequentially. (ECF No. 15 at 8-9 (citing
Compl.,

~64)).

Plaintiff states that he has alleged the factual basis required to state a violation of

the TCP A. Plaintiff asserts that he need only to allege that Charter used an autodialer. (ECF No.
15 at 1-11 (citing Buslepp v. B & B Entm't, LLC, No. 12-60089-CIV, 2012 WL 1571410, at *1
(S.D. Fla. May 3, 2012)). Plaintiff also contends that the issue of whether the calls were made to
a cellular telephone is factual in nature, and that these facts are not required to be pleaded in the
complaint. (ECF No. 15 at 11 (citing Buslepp, 2012 WL 1571410, at *2)).
The Court agrees that the plain language of the TCP A only prohibits the use of an autodialer
when contacting a cellular phone. See 47 U.S.C. §227(b)(l)(A)(iii) ("It shall be unlawful for any
person within the United States, or any person outside the United States if the recipient is within
the United States to any telephone number assigned to a paging service, cellular telephone
service, specialized mobile radio service, or other radio common carrier service, or any service
for which the called party is charged for the call, unless such call is made solely to collect a debt
owed to or guaranteed by the United States."). Therefore, the Court grants Defendant's Motion
to Dismiss as to Count II. Count II is dismissed without prejudice.

3. Count III
In Count III, Plaintiff alleges a claim under Missouri's no-call law. The Missouri no-call law
provides:
No person or entity shall make or cause to be made any telephone solicitation to
the telephone line of any residential subscriber in this state who has given notice
to the attorney general, in accordance with rules promulgated pursuant to section
407.1101 of such subscriber's objection to receiving telephone solicitations.
Mo. Rev. Stat. §407.1098.1.

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Charter moves to dismiss Count III because the Complaint does not allege sufficient facts to
support a claim under the Missouri No-Call Law, namely that (1) a person was on the Missouri
No-Call List and (2) received a telemarketing call while on the list. (Compl., if5). Charter
asserts that the "timing of the calls is an essential element because the Missouri no-call statute
contains exceptions for calls made to persons with whom the caller-or in this case, the person
on whose behalf the call was allegedly made-had a previous or existing business relationship or
who gave permission for the call." (ECF No. 10 at 8 (citing R.S. Mo. §407.1095(3)(a) and (b)).
Charter notes that the Complaint says nothing about the timing of the calls or any specificity
regarding when calls were made or who they were made to. (ECF No. 10 at 8). Further, none of
the four complainants identified in the Complaint are alleged to have been on the Missouri no
call list. (ECF No. 10 at 8). Charter notes that Plaintiff cannot even name one person who
received a call from Charter while he or she was on the Missouri No-Call list. (ECF No. 18 at
12). Likewise, Charter states that three of those complainants were Charter customers, making
calls to them permissible under the Missouri no-call law. (ECF No. 10 at 8-9 (citing R.S. Mo.
§407.1095(3)(a) and (b)).

In sum, Charter states that Plaintiffs failure to plead essential

elements of his claims demonstrates that his due diligence would have revealed insufficient
evidence to file a claim. (ECF No. 10 at 9).
Plaintiff asserts that the Complaint sets forth factual allegations that Charter's telemarketers
"have made at least thousands of telemarketing calls across Missouri attempting to sell Charter's
cable, internet, and/or telephone services." (ECF No. 15 at 12 (citing Comp!., if48)).

The

Complaint further states that "[m]any of the Missouri consumers who received calls from
Charter on the Missouri Do-Not-Call List and/or the Federal Do-Not-Call List." (ECF No. 15 at
12 (citing Compl., if49)). The Complaint further alleges:

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Of the consumers on the Missouri Do-Not-Call and/or Federal Do-Not-Call List
who received telemarketing calls from Charter or Charter's Telemarketers, many
are not current or former customers of Charter, have no business relationship with
Charter, and had not given Charter permission to make telemarketing calls to their
phone lines.
(ECF No. 15 at 12-13 (citing Compl., if50)). Plaintiff emphasizes that he has alleged that Charter
violated Missouri's No-Call statute in that it knowingly made or chased to be made telephone
solicitations to the telephone lines of residential subscribers in the State of Missouri who have
given notice to the Missouri Attorney General of the subscribers' objections to receiving
telephone solicitations and were place on Missouri's Telemarketing No-Call List. (ECF No. 15
at 13 (citing Compl., if73)). Plaintiff contends that specific phone numbers were not required at
this stage of the pleading and the Complaint sufficiently places Charter on notice of its violation
of the Missouri No-Call law. (ECF No. 15 at 13).
As with Count I, the Court agrees that Plaintiff sufficiently alleges a claim under the
Missouri No-Call list. The Court holds that identification of each specific telephone number
called is not required at this stage of the litigation. Plaintiff has provided four representative
complainants, which provide Charter with sufficient notice regarding Plaintiffs claims.
Discovery regarding these and the rest of the complainants can be conducted to discern the
additional information to litigate this case.
II.

Motion to Strike Affirmative Defenses
A. Standard of Review

Rule 12(f) provides that a "court may strike from a pleading an insufficient defense or
any redundant, immaterial, impertinent, or scandalous matter." 2 Fed. R. Civ. P. 12(f). "Parties

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"These terms have precise meanings under this rule. For example, redundant refers to statements
wholly foreign to the issue or that are needlessly repetitive of immaterial allegations. ...
Immaterial claims are those lacking essential or important relationships to the claim for relief. ...
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filing a motion to strike under Fed. R. Civ. P. 12(t) bear the burden of providing the Court any
reason why this language is immaterial, impertinent, or scandalous." Simms v. Chase Student
Loan Servicing, LLC, No. 4:08CV01480 ERW, 2009 WL 943552, at *2 (E.D. Mo. Apr. 6,

2009)(internal citation omitted). "Although the Court enjoys 'broad discretion' in determining
whether to strike a party's pleadings, such an action is 'an extreme measure."' Airstructures
Worldwide, Ltd. v. Air Structures Am. Technologies, Inc., No. 4:09CV10 CDP, 2009 WL

792542, at* 1 (E.D. Mo. Mar. 23 , 2009)(quoting Stanbury Law Firm v. IRS, 221 F.3d 1059, 1063
(8th Cir. 2000)).
"A motion to strike should 'be denied if the defense is sufficient as a matter of law or if it
fairly presents a question of law or fact which the court ought to hear."' Bartoe v. Missouri
Barge Line Co., No. 1:07CV165RWS, 2009 WL 1118816, at *1 (E.D. Mo. Apr. 24, 2009)

(quoting Lunsford v. United States, 570 F.2d 221 , 229 (8th Cir. 1977)). "'Motions to strike under
Fed. R. Civ. P. 12(t) are viewed with disfavor and are infrequently granted."' Champion Bank v.
Reg'! Dev., LLC, No. 4:08CV1807 CDP, 2009 WL 1351122, at *4 (E.D. Mo. May 13,

2009)(quoting Lunsford, 570 F.2d at 229). Motions to strike affirmative defenses "should not be
granted 'unless, as a matter of law, the defense cannot succeed under any circumstances."'
Champion Bank, 2009 WL 1351122, at *4 (quoting FDIC v. Coble, 720 F. Supp. 748, 750 (E.D.

Mo. 1989); Bobbitt v. Victorian House, Inc., 532 F. Supp. 734, 737 (N.D. Ill. 1982) ("Matters
labeled affirmative defenses should be stricken only where it is completely certain they have
been mistitled.").
The Eighth Circuit has also addressed the pleading standard for affirmative defenses:

Impertinent claims are those that do not pertain to the issues in question." Simms v. Chase
Student Loan Servicing, LLC, No. 4:08CV01480, 2009 U.S. Dist. LEXIS 28977, at *5 , n. 3 (E.D.
Mo. Apr. 6, 2009) (internal quotations and citations omitted).

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Federal Rule 8(c) governs the pleading of affirmative defenses and requires a
party to "affirmatively state any avoidance or affirmative defense, including
[listing several affirmative defenses]." Federal Rule 8(d) states that "[e]ach
allegation must be simple, concise, and direct. No technical form is required."
Further, "[p]leadings must be construed so as to do justice." Fed.R.Civ.P. 8(e).
As numerous federal courts have held, an affirmative defense may
be pleaded in general terms and will be held to be sufficient, and
therefore invulnerable to a motion to strike, as long as it gives the
plaintiff fair notice of the nature of the defense. The only
exceptions are the defenses that fall within the special pleading
provisions in Rule 9, especially Rule 9(b), which deals with fraud,
mistake, and condition of the mind, or the terms of a federal
statute.
5 Charles Alan Wright et al. , Federal Practice & Procedure § 1274 (3d ed.
Westlaw 2013) (footnotes omitted). The Eighth Circuit Court of Appeals agrees.
"The rules do not require a party to plead every step of legal reasoning that may
be raised in support of its affirmative defense; they only require a defendant to
state in short and plain terms its defenses to a plaintiffs claims. See F.R. Civ. P.
8(c)." Wisland v. Admiral Beverage Corp., 119 F.3d 733, 737 (8th Cir.1997).
"While [an affirmative] defense must be asserted in a responsive pleading, it need
not be articulated with any rigorous degree of specificity, and is sufficiently raised
for purposes of Rule 8 by its bare assertion. " Zotos v. Lindbergh School Dist.,
121 F.3d 356, 361 (8th Cir.1997) (finding statute-of-limitations affirmative
defense to be sufficiently raised under Federal Rule 8(c), even though specific
statute not cited) (internal quotation marks, some alterations, and citations
omitted); see also Holway v. Negro Leagues Baseball Museum, 263 Fed.Appx.
538, 539 (8th Cir.2008) (statute-of-limitations affirmative defense not waived by
failure to cite specific statute in answer).
Strauss v. Centennial Precious Metals, Inc., 291 F.R.D. 338, 341 (D. Neb. 2013).

B. Discussion
Charter' s twelfth affirmative defense states that Plaintiffs claims are barred, in whole or
in part, by the doctrine of !aches, unclean hands, and waiver. Plaintiff claims that Charter's
twelfth affirmative defense fails because it is presented in a conclusory fashion without any
factual basis and because the specific defense of unclean hands is not applicable here. (ECF No.
20 at 5). Plaintiff states that Charter has not alleged any egregious misconduct by the Attorney
General ' s Office, or any resulting prejudice rising to the constitutional level. (ECF No. 20 at 6).
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The fourteenth affirmative defense states "[t]he Attorney General has failed to join
necessary and indispensable parties to this action." Plaintiff asserts that this affirmative defense
should be stricken because Charter failed to name or describe the indispensable party and to set
forth any facts that support this defense. (ECF No. 20 at 6).
Charter relies on a previous lawsuit to assert the affirmative defenses of equitable
estoppel (fifteenth affirmative defense), unclean hands (sixteenth affirmative defense), !aches
(seventeenth affirmative defense), and failure to comply with a prior agreement (eighteenth
affirmative defense). Plaintiff contends that these defenses are improper because they center on
a prior Assurance of Voluntary Compliance, which was entered with different Charter entities
than Defendant in this matter and Plaintiff has not pleaded violations specific to the 2005 AVC
in the Complaint in this lawsuit. (ECF No. 20 at 6). Likewise, Plaintiff contends that Charter
has not alleged any misconduct on Plaintiffs behalf to warrant these defenses. (ECF No. 20 at
6-9).

The Eighth Circuit Court of Appeals has made it clear that affirmative defenses "need not
be articulated with any rigorous degree of specificity" and are "sufficiently raised for purposes of
Rule 8 by its bare assertion. " Zotos, 121 F.3d at 361. Charter's affirmative defenses have
sufficiently put Plaintiff on notice of its bases for its affirmative defenses. Being properly on
notice, Plaintiff can explore the bases for Charter' s defenses during discovery. Plaintiffs motion
to strike Affirmative Defenses will be denied.
According! y,
IT IS HEREBY ORDERED that Defendant Charter' s Partial Motion to Dismiss (ECF

No. 9) is GRANTED, in part, and DENIED, in part.
prejudice.

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Count II is DISMISSED without

IT IS FURTHER ORDERED that Plaintiffs Motion to Strike Defendant' s Affirmative

Defenses (ECF No. 19) is DENIED.

Dated this 21st day of April, 2016.

~~
~EL.WHITE
UNITED STATES DISTRICT JUDGE

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