Martin v. Medicredit, Inc. et al

Filing 82

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Plaintiff's Motion to Substitute Martinez in as Plaintiff and to remove Aviles and Catala as Plaintiffs [ECF No. 68] is GRANTED. IT IS FURTHER ORDERED that Defendant Medicredit Inc.s Motion to Dismiss Plaintiffs Jeremy Plaintiffs Jeremy Aviles and Rachel Catalas Amended Complaint for Lack of Subject Matter Jurisdiction [ECF No. 71] is DENIED, as moot. Signed by District Judge E. Richard Webber on July 24, 2017. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JEREMY AVILES and RACHEL
CATALA, individually and on behalf of all
others similarly situated,
Plaintiffs,
v.
MEDICREDIT, INC., a Missouri
corporations; and HCA HEALTH
SERVICES OF FLORIDA, INC. d/b/a
Osceola Regional Medical Center
Defendants.

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No. 4:16CV01138 ERW

MEMORANDUM AND ORDER
This matter comes before the Court on Plaintiffs’ Motion requesting leave to file a
consolidated complaint that substitutes Marilynn Martinez as Plaintiff in place of Jeremy Aviles
and Rachel Catala [ECF No. 68] and Defendant Medicredit Inc.’s Motion to Dismiss for Lack of
Jurisdiciton as to Plaintiffs Jeremy Aviles and Rachel Catala [ECF No. 71].
I.

BACKGROUND
Plaintiff Jason Martin (“Martin”) initiated this lawsuit by filing a class action complaint

in this Court on July 13, 2016, against Defendants Medicredit, Inc., HCA Health Services of
New Hampshire, Inc. doing business as Portsmouth Regional Hospital (“HCA”), and Wentworth-Douglass Hospital (“Defendants”). Plaintiff Martin’s action for damage arises under 47
U.S.C. § 227, the Telephone Consumer Protection Act (“TCPA”). Plaintiff Martin also brought
this action on behalf of several classes of other similarly situated individuals, seeking damages
and any other available legal or equitable remedies resulting from the illegal actions of
Defendant Medicredit, Inc. (“Medicredit”).
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On May 3, 2017, an Amended Complaint was filed which named Jeremy Aviles and
Rachel Catala as Plaintiffs in this matter. Martin, the original Plaintiff was dismissed from the
matter. On May 5, 2017, the Court entered an order consolidating this action with the action
styled Hornberger et al. v. Medicredit, Inc., No. 4:17-cv-00409-SNLJ. On May 24, 2017,
Plaintiffs moved to substitute Marilynn Martinez as plaintiff in place of Jeremy Aviles and
Rachel Catala in the consolidated complaint, with Plaintiffs Todd Hornberger and Eric Johnson
remaining as Plaintiffs in the consolidated action. Defendant Medicredit, pursuant to Federal
Rule of Civil Procedure (“FRCP”) 12(b)(1), submitted a motion to dismiss the action for lack of
subject matter jurisdiction in combination with its opposition to the Motion to Substitute.
Medicredit argues Aviles and Catala do not have standing to bring the action, and
therefore, they do not have standing to file a Motion to Substitute another plaintiff in their stead.
Medicredit also claims any attempt to substitute Martinez as a representative plaintiff would be
futile. They argue Martinez cannot satisfy the FRCP 23(a) typically requirement, because she is
subject to unique defenses arising out of her relationship with the former Plaintiff Aviles.
In a motion to dismiss, the Court accepts the allegations in the complaint as true. Great
Rivers Habitat Alliance v. Fed. Emergency Mgmt. Agency, 615 F.3d 958, 988 (8th Cir. 2010).
The following are the facts alleged by Plaintiffs. Medicredit has equipment with the capacity to
dial numbers without human intervention to be used to make non-emergency telephone calls to
the cellular telephone of Plaintiffs and other members of the class. Medicredit utilizes an
artificial and/or prerecorded voice, and Medicredit used this equipment to call Plaintiffs without
regard as to whether they had obtained express permission from the called party to make such
calls or after consent was revoked. In 2015 and 2016, Martinez received numerous telephone
calls on her cellphone ending in “5105” from Medicredit regarding a debt allegedly owed to

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HCA by her adult son. Several calls used an artificial or prerecorded voice. At no time leading
up to these calls did Martinez provide either Defendant with her cellphone number to be called
regarding her son’s alleged debt or otherwise give either Defendant consent to call her regarding
her son’s alleged debt. Martinez believes her son gave HCA her name and cell phone as the
person to notify regarding the outcome of his medical treatment or any emergencies, not as a
person to notify regarding an alleged debt.
Plaintiffs also bring this action on behalf of several classes of other similarly situated
individuals, seeking damages and any other available legal or equitable remedies resulting from
the illegal actions of Defendants in negligently, knowingly, or willfully contacting them on their
cellular telephones in violation of the TCPA. The proposed No Consent Class and sub-classes
are defined by Plaintiffs as follows:
No Consent Class
All persons within the United States to whose cellular telephone number
Medicredit placed a debt collection related telephone call between July 14,
2015 and the date of certification through the use of any automatic
telephone dialing system or artificial or prerecorded voice where such
person did not provide that number in connection with the alleged debt.
Person to Notify Subclass
All persons within the United States to whose cellular telephone number
Medicredit placed a debt collection related telephone call between July
14, 2015 and the date of certification through the use of any automatic
telephone dialing system or artificial or prerecorded voice where such
number was listed as a “person to notify” or “emergency contact.”
Additionally, the proposed Wrong Number/Cease Contact class is defined as follows:
Wrong Number/Cease Contact Class
All persons within the United States to whose cellular telephone number
Medicredit placed a debt collection related telephone call between July 14,
2015 and the date of certification through the use of any automatic
telephone dialing system or artificial or prerecorded voice where such
person informed Medicredit that it had the wrong number or requested that
Medicredit cease contact.

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Plaintiffs believe common questions of fact and law exist as to all members of the classes
which predominate over any questions affecting only individual members of the classes. These
questions include: whether, within the class period, Medicredit made any call (other than a call
made for emergency purposes or made with the prior express consent of the called party) to a
class member using any automatic telephone dialing system or an artificial or prerecorded voice
to any telephone number assigned to a cellular telephone service; whether Plaintiffs and the class
members were damaged, and the extent of damage for such violation; whether HCA is
vicariously liable for the calls placed on its behalf; and whether Medicredit should be enjoined
from engaging in such conduct in the future.
As persons who allegedly received calls from Medicredit using an automatic telephone
dialing system or any artificial or prerecorded voice, without their prior express consent,
Plaintiffs argue they are asserting claims that are typical of the classes. Plaintiffs allege
Defendants violated 47 U.S.C. § 227(b)(1)(A)(iii) of the TCPA by causing an automatic
telephone dialing system and/or artificial or prerecorded voice to be used to make nonemergency telephone calls to Plaintiffs and the other members of the class without their prior
express consent. Therefore, pursuant to Section 227(b)(3)(B) of the TCPA, Plaintiffs allege
themselves and each class member is entitled to a minimum of $500.00 in damages for each
violation and if willfulness is proven up to $1,500 for each violation.
II.

STANDARD
A. Motion to Substitute
The Court is not required to grant leave to amend the complaint, but FRCP 15(a)(2) states

“the Court should freely give leave when justice so requires.” “Liberal substitution of
representatives [is] commonly allowed in class actions.” Van Horn v. Trickey, 840 F.2d 604, 608

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(8th Cir. 1988). “Unless there is a good reason for denial, ‘such as undue delay, bad faith, or
dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the non-moving party, or futility of the amendment, leave to amend should be
granted.’” Mo. Crop., LLC v. CGB Diversified Servs., No. 2:15CV00024 ERW, 2017 U.S. Dist.
LEXIS 2384, at *8 (E.D. Mo. Jan. 6, 2017), quoting Becker v. Univ. of Neb. at Omaha, 19 F.3d
904, 907-08 (8th Cir. 1999).
A party may move to dismiss a claim for lack of subject matter jurisdiction. FRCP
12(b)(1); Blakley v. Schlumberger Tech. Corp., 648 F.3d 921, 931 (8th Cir. 2011). “Motions to
dismiss for lack of subject-matter jurisdiction can be decided three ways: at the pleading stage,
like a Rule 12(b)(6) motion; on undisputed facts, as with a summary judgment motion; and on
disputed facts.” Jessie v. Potter, 516 F.3d 709, 712 (8th Cir. 2008). “In order to properly
dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the complaint must be
successfully challenged on its face or on the factual truthfulness of its averments.” Titus v.
Sullivan, 4 F.3d 590, 593 (8th Cir. 1993).
The existence of subject matter jurisdiction is a question of law appropriate for the Court.
ABF Freight Syst., Inc. v. Int’l Bhd. of Teamsters, 645 F.3d 954, 958 (8th Cir. 2011). A district
court has broad power in deciding whether it has the right to hear a case. Osborn v. United
States, 918 F.2d 724, 729 (8th Cir. 1990). “Moreover, because jurisdiction is a threshold
question, judicial economy demands that the issue be decided at the outset rather than deferring it
until trial[.]” Id.
III.

DISCUSSION
A.

Motion for Leave to Substitute Parties in Consolidated Complaint

Plaintiffs request the Court substitute Martinez as Plaintiff in place of Aviles and Catala.

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Plaintiffs’ counsel asserts the factual allegations are virtually identical to the Amended
Complaint filed by Aviles and Catala. They also contend they seek certification of a virtually
identical class to the one proposed in the Amended Complaint.
Defendants argue the Motion to Substitute should be denied for two reasons. First, they
state it is moot because Aviles and Catala lack standing. Second, they argue any attempt to
introduce Martinez as a putative plaintiff in a class action complaint is futile, because Martinez,
at minimum, cannot satisfy the FRCP 23(a)(3) typicality requirement. Medicredit states Plaintiffs
Aviles and Catala admit they had no cause of action under the TCPA, 47 U.S.C. § 227, because
they were not autodialed without their consent and therefore, had not suffered an injury [ECF
No. 71, ¶ 2]. Therefore, according to Medicredit, Aviles and Catala’s claims must be dismissed
for lack of standing. As a result, Defendants assert they also do not have standing to file a
Motion to Substitute another plaintiff in their stead.
Plaintiffs argue it is disputed whether Medicredit had prior express consent to make the
calls [ECF No. 77, p. 7]. “Prior express consent is deemed to be granted only if the wireless
number was provided by the consumer . . . during the transaction that resulted in the debt owed.”
Zean v. Fairview Health Servs., 858 F.3d 520, 523 (8th Cir. 2017). Prior express consent may be
revoked “using any reasonable method including orally or in writing.” Wright v. Target Corp.,
No. 14-cv-3031 (SRN/HB), 2015 U.S. Dist. LEXIS 167000, at *13 (D. Minn. Dec. 14, 2015).
Aviles alleges on several occasions he asked Medicredit to stop placing calls to his cellular
telephone number, yet the calls did not stop [ECF No. 62, ¶ 24]. The Court is required to accept
these allegations as true. “In assessing whether the plaintiff has alleged a sufficiently
particularized and concrete injury, the court must accept all factual allegations in the complaint
as true and draw all inferences in the plaintiffs favor.” Young Am. Corp. v. Affiliated Computer

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Servs., 424 F.3d 840, 843 (8th Cir. 2005). Lack of consent is not required to establish standing of
a TCPA claim, but even if it were, Plaintiffs have sufficiently alleged facts they did not consent
to the calls. Plaintiffs have standing this matter and therefore, they can file a Motion to
Substitute.
Finally, Defendants argue any attempt to name Martinez as a representative plaintiff will
be futile. They state, “At the very least, Martinez cannot satisfy the FRCP 23(a) typicality
requirement because she is subject to unique defenses arising out of her relationship with Aviles”
[ECF No. 72, p. 10]. They argue this for two reasons. First, they claim Aviles misappropriated
the telephone number of Martinez, who is his mother. Second, Martinez allegedly signed the
Conditions of Admission, which expressly states she consented to being autodialed about any
hospital debts. They argue this information raises serious doubts regarding whether Martinez
could be a member of any of the following classes: No Consent Class, Person to Notify Subclass,
and Wrong Number/Cease Contact. They claim, as a result, Martinez does not satisfy the
typicality requirement, and any amendment to name her as a representative will be futile and
should be denied. Typicality is an issue to be determined on a motion for class certification, not a
motion to dismiss. See FRCP 23(c). Therefore, the Court rejects Defendants’ argument on this
ground.
The Court believes Plaintiffs have good cause for seeking substitution. This is the second
time Plaintiffs are seeking to substitute, but since discovery is still in the early stages, the Court
does not find this will result in prejudice towards Defendants. Therefore, the Court will allow the
substitution.
B.

Motion to Dismiss

Medicredit moves to dismiss this action for lack of subject matter jurisdiction. In support

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of this Motion, Medicredit argues Aviles and Catala were called about debts they personally
owed and consented to being called about them, and therefore, their claims must be dismissed for
lack of standing. Because the Court will grant Plaintiffs’ Motion to Substitute, a new amended
complaint will be filed. Medicredit’s Motion to Dismiss will be denied as moot.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion to Substitute Martinez in as Plaintiff
and to remove Aviles and Catala as Plaintiffs [ECF No. 68] is GRANTED.
IT IS FURTHER ORDERED that Defendant Medicredit Inc.’s Motion to Dismiss
Plaintiffs Jeremy Plaintiffs Jeremy Aviles and Rachel Catala’s Amended Complaint for Lack of
Subject Matter Jurisdiction [ECF No. 71] is DENIED, as moot.
Dated this 24th Day of July, 2017.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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