Margulis v. Charter Communications, Inc. et al
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant Charter Communications, Inc.'s Partial Motion to Dismiss Plaintiffs Claims Based on the Missouri No-Call Law (ECF No. 7 ) is GRANTED. IT IS FURTHER ORDERED that Plaintiffs claims broug ht under the MMPA, Mo. Rev. Stat.§§ 407.010, et seq., are DISMISSED with prejudice. IT IS FINALLY ORDERED that Plaintiffs Voluntary Dismissal without Prejudice of Plaintiffs Claims Based on the Missouri Do Not Call Law and the Missouri Merchandising Practices Act (ECF No. 11 ) is DENIED. Signed by District Judge Ronnie L. White on April 21, 2017. (BRP)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CHARTER COMMUNICATIONS, INC. ,
JOHN DOES 1-10,
No. 4:16CV1702 RLW
MEMORANDUM AND ORDER
This matter is before the Court on Defendant Charter Communications, Inc.' s Partial
Motion to Dismiss Plaintiffs Claims Based on the Missouri No-Call Law (ECF No. 7). Also
pending is Plaintiffs Voluntary Dismissal without Prejudice of Plaintiffs Claims Based on the
Missouri Do Not Call Law and the Missouri Merchandising Practices Act (ECF No . 11). Other
than the voluntary dismissal, Plaintiff did not file a response to Defendant' s motion to dismiss,
and the time for doing so has expired. Defendant filed a memorandum in opposition to
Plaintiffs motion for voluntary dismissal without prejudice (ECF No . 12).
This case arises from two alleged telephone calls from Charter Communications, Inc.
("Defendant") to Marilyn Margulis ("Plaintiff'). Plaintiff alleges that Defendant's representative
called her residential phone for the purpose of encouraging the purchase or rental of, or
investment in, property, goods, or services, on or about July 15, 2014. (Compl.
31, ECF No. 4)
Plaintiff asserts her CallerID transmitted the call from a toll free number, which was
disconnected and never assigned to Defendant. (Compl.
After answering the phone
call, Plaintiff asked the Defendant's representative to add Plaintiff to Defendant's list of people
who did not want to receive telephone solicitations. (Compl.
In addition, Plaintiff
requested that a copy of Defendant's current Do Not Call Policy be mailed to the Plaintiff, and
the representative agreed to send such copy. (Compl.
However, Plaintiff alleges she did
not receive Defendant's Do Not Call Policy within thirty days of the request. (Compl.
Plaintiff further claims a representative of Defendant called Plaintiffs phone a second
time for solicitation purposes, via a different disconnected and unassigned phone number, on
July 30, 2014. (Compl.
Plaintiff contends both telephone calls forced Plaintiff to
incur time and expense, while each call also prevented Plaintiffs telephone from being used for
other purposes during such calls. (Compl.
iii! 25, 27)
Plaintiff filed a Petition in Circuit Court of St. Louis County on September 18, 2016.
(ECF No . 4) Defendant removed the case to federal court on the basis of federal question and
diversity jurisdiction on November 1, 2016. (ECF No. 1) Plaintiffs complaint alleges violations
of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227 and the Missouri
Merchandising Practices Act ("MMPA"), Mo. Rev. Stat.§§ 407.010, et seq. Specifically,
Plaintiff asserts claims under the MMP A for violations of the Missouri Do Not Call Law
("MDNC"), Mo Rev. Stat. §§ 407.1098 and 407.1104, and a violation of telemarketing practices
under Mo. Rev. Stat.§ 407.1076. She requests monetary damages and injunctive relief.
On November 8, 2016, Defendant filed a partial Motion to Dismiss Plaintiffs claims
under the MMP A claiming the statute bars any action two years after Plaintiff knew or should
have known of the alleged violation. (ECF No. 7) On November 16, 2016, Plaintiff moved for
Voluntary Dismissal without Prejudice for her claims under the MDNC and the MMP A. (ECF
No. 11) Defendant opposes Plaintiffs Voluntary Dismissal without Prejudice because the
claims are time-barred. (ECF No. 12)
"To survive a motion to dismiss, a complaint must contain ' enough facts to state a claim
for relief that is plausible on its face ."' Smith v. UPS Freight, No. 4:15-CV-382 JAR, 2015 WL
4274594, at *1 (E.D. Mo. July 14, 2015) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 , 570, (2007)). " [A] court should construe the complaint liberally in the light most favorable
to the plaintiff." Eckert v. Titan Tire Corp., 514 F.3d 801 , 806 (8th Cir. 2008). "Where the
complaint itself establishes that the claim is time-barred, dismissal pursuant to Rule 12(b)( 6) is
proper." Hollingsworth v. UnitedAirlines,Inc., No. 4:16 CV 2139 DDN, 2017 WL 564491 , at
*2 (E.D. Mo. Feb. 13, 2017) (citation omitted).
Federal Rule of Civil Procedure 41 provides for the voluntary dismissal without prejudice
of an action by a plaintiff without a court order where a plaintiff files : "(i) a notice of dismissal
before the opposing party serves either an answer or a motion for summary judgment; or (ii) a
stipulation of dismissal signed by all parties who have appeared. " Fed. R. Civ. P. 41(a)(l)(A)
and (B); Burke v. Versa-Tags, Inc., No. 4:09CV0521 ERW, 2009 WL 3433471 at *2 (E.D. Mo.
Oct. 19, 2008). However, where the opposing party has served an answer, "an action may be
dismissed at the plaintiffs request only by court order, on terms that the court considers proper."
Fed. R. Civ. P. 41(a)(2). "A decision whether to allow a party to voluntarily dismiss a case rests
upon the sound discretion of the court." Hamm v. Rhone-Poulenc Rorer Pharms., Inc., 187 F.3d
941 , 950 (8th Cir. 1999) (citation omitted). "In exercising that discretion, a court should
consider factors such as whether the party has presented a proper explanation for its desire to
dismiss, . . . whether a dismissal would result in a waste of judicial time and effort, . .. and
whether a dismissal will prejudice the defendants . ... " Id. (internal citations omitted).
Under the MMPA, " [n]o action or proceeding may be brought pursuant to this section:
(1) More than two years after the person bringing the action knew or should have known of the
occurrence of the alleged violation[.]" Mo. Rev. Stat.§ 407.1107. Defendant argues the twoyear statute of limitations bars Plaintiffs claims under the MMP A because the calls allegedly
made by Defendant were placed on July 15 and 30, 2014. Plaintiff did not file her state court
petition until September 18, 2016, approximately seven weeks after the statute oflimitations
expired. Defendant further contends that the Court should not allow Plaintiff to voluntarily
dismiss her MMPA claims without prejudice because the claims are time-barred. Moreover,
Defendant asserts dismissal without prejudice is unwarranted because Defendant has incurred
expenses in preparing and filing a motion to dismiss claims that were not viable under applicable
At the outset, the Court notes that Plaintiff has not provided any reason why her MMP A
claims should be voluntarily dismissed without prejudice. See Hamm , 187 F.3d at 951
(affirming the denial of a motion to voluntarily dismiss without prejudice where plaintiffs
"provided no legitimate justification for their request to dismiss"). Further, " [v]oluntary
dismissal under Rule 41 (a)(2) should not be granted if a party will be prejudiced by the
dismissal, . . . and there is clear legal prejudice where a Rule 41(a)(2) dismissal is granted in the
face of a valid statute of limitations defense .. . ." Metro. Fed. Bank of Iowa, F.S.B. v. WR.
Grace & Co., 999 F.2d 1257, 1262-63 (8th Cir. 1993) (internal citations omitted)). In SuttonPrice v. Daugherty Sys. , Inc., plaintiff sought to voluntarily dismiss without prejudice a claim
under the Missouri Minimum Wage Law ("MMWL"), which contained a two-year statute of
limitations. No. 4:11-CV-1943 (CEJ), 2012 WL 2282344, at *1 (E.D. Mo. June 18, 2012). The
court denied plaintiffs motion to dismiss and instead found the defendant had "established that
plaintiff[' s] claim under the MMWL is barred by the statute of limitations and it is entitled to
dismissal of the claim with prejudice." Id. at *3 (citation omitted). Furthermore, the Eighth
Circuit has held,"[w]e would consider it an abuse of discretion for a district court to find no
legal prejudice, and thus to grant voluntary dismissal, where the nonmoving party has
demonstrated a valid statute of limitations defense to the claims sought to be dismissed." WR.
Grace & Co., 999 F.2d at 1263.
In this case, Defendant's memorandum in support of its partial motion to dismiss
demonstrates that the two-year statute of limitations bars Plaintiffs claims under the MMP A.
(ECF No. 8) Plaintiff became aware of the alleged MMPA violations on July 15 and 30, 2014,
when Plaintiff allegedly answered Defendant's solicitation phone calls. (Compl. iii! 31-37, 4350) Plaintiff did not bring an action against Defendant for the alleged violations of the MMP A
until September 18, 2016. (ECF No. 4) Because Plaintiff filed her cause of action more than
two years after receiving the July 2014 phone calls, the Court finds that Defendant has
established that Plaintiffs MMP A claims are barred by the statute of limitations, warranting
dismissal with prejudice. Sutton-Price, 2012 WL 2282344, at *3 .
IT IS HEREBY ORDERED that Defendant Charter Communications, Inc. ' s Partial
Motion to Dismiss Plaintiffs Claims Based on the Missouri No-Call Law (ECF No. 7) is
IT IS FURTHER ORDERED that Plaintiffs claims brought under the MMPA, Mo.
Rev. Stat.§§ 407.010, et seq., are DISMISSED with prejudice.
IT IS FINALLY ORDERED that Plaintiffs Voluntary Dismissal without Prejudice of
Plaintiffs Claims Based on the Missouri Do Not Call Law and the Missouri Merchandising
Practices Act (ECF No. 11) is DENIED.
Dated this 21st day April, 2017.
RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE
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