ZELMA v. CONWAY et al
Filing
39
OPINION. Signed by Judge Dennis M. Cavanaugh on 12/11/13. (jd, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
I)ISTRICT OF NEW JERSEY
RICHARD M. ZELMA.
:
Plaintiff,
v.
Hon. l)cnnis M. Cavanaugh
OPINION
:
Civil Action No. 2:12-cv-00256 (DMC)(JBC)
ART CONWAY (Individually);
DIALAMERICA MARKETING INC..
RODALE INC.. PREVENTION
MAGAZINE, et al.,
Defendants
DENNIS M. CAVANAUGH, U.S.D,J.:
This matter comes before the Court upon two motions to dismiss the Amended
Complaint (April 17, 2013, ECF No. 22) of Plaintiff Richard M. Zelma (“Plaintiff” or “Zelma”)
brought
by (1) DialAmerica Marketing Inc. (“DialArnerica”) (May 15, 2013, ECF No. 28) and
(2) Rodale Inc.. a/k/a Rodale Press. d/b/a Prevention Mauazine and Prevention Magazine (“the
Rodale Defendants”) (May 15, 2013, ECF No. 29) pursuant to FED. R. Civ. P. 12(b)(6). Pursuant
to Fuo. R. Civ. P. 78, no oral argument was heard. Based on the following and for the reasons
expressed herein, Defendants’ motions to dismiss are granted.
I.
BACKGROUND’
On December 15, 2011. Plaintiff filed suit against DialAmerica. the Rodale Defendants.
Art Conway, individually (“Conway”) and various John Does and AI3C Corporations in state
The facts set forth in this Opinion are taken from the parties’ respective moving papers and tiings.
court. (Compi.). On January 13. 2012, Defendants removed the case to this Court. (Notice of
Removal, ECF No. 1). Defendants subsequently tiled motions to dismiss Plaintiffs Complaint,
which was granted without prejudice as to all Defendants on September 13, 2012. (Order and
Or.. ECF Nos. 16, 17). Plaintiff filed an Amended Complaint on April 1 7, 2013. (Am. Compi.,
ECE No. 22), Plaintiffs Amended Complaint voluntarily dismisses all claims against Conwa
as vell as three of the six counts original pled. DialAmerica and the Rodale i)efendanis have
each flied a second motion to dismiss Plaintiffs Amended Complaint for failure to state a claim
upon which relief may be granted.
Plaintiff asserts claims under the Telephone Consumer Protection Act, 47 U.S.C.
seq.. (the “TCPA”) and the New Jersey Do Not Call Law. N..J.S.A
§
§ 227 et
56:8.i 19 et seq.. on the
grounds that Deflndants made at least seven unsolicited calls to his residence. Plainti IT claims
his name is on both the Federal and New Jersey Do Not Call lists and asserts that these phune
calls were therefore made in violation of both statutes. Plaintiff seeks statutory, punitive or
actual damages for each of the unlawful calls under the TCPA and New Jersey’s Do Not Call
Law as well as statutory treble damages under the TCPA for Defendants’ alleged “willful” and
“knowing” violation. In addition, Plaintiff seeks costs and permanent injunctive relief pursuant
to 47 U.S.C.
IL
§
227 (b)(3)(A).
STANI)ARD OF REVIEW
ln deciding a motion under Rule 1 2(b)(6). a district court is “required to accept as true all
factual allegations in the complaint and draw all inferences in the facts alleged in the light most
flivorable to the [Plaintifti.” Phillips v. Cnty. ofAlleghenv. 515 F.3d 224. 228 (3d Cii’. 2008).
“[A] complaint attacked by a.
Bell Ml Coip
.
.
motion to dismiss does not need detailed factual allegations.”
Twombh 550 U 5 544 555 (2007) Ho\e\e1 the Plaintiffs obligation to
provide the grounds of his entitleiment] to relief requires more than labels and conclusions.
and a formulaic recitation of the elements of a cause of action will not do.” Id. (internal citations
omitted). “[A court is] not bound to accept as true a legal conclusion couched as a factual
allegation.” Papasan v, Allain, 478 U.S. 265, 286 (1 986). Instead, assuming that the factual
allegations in the complaint are true, those “[tiactual allegations must be enough to raise a right
to relief above a speculative level.” Twombly. 550 U.S. at 555.
A complaint will survive a motion to dismiss if it contains suflkient factual matter to
‘state a claim to relief that is plausible on its face.” Ashcroft v. lqbal. 556 U.S. 662. 678 (2009)
(citing Twombly, 550 U.S. at 570). “A claim has facial plausibility when the pleaded factual
content allows the court to draw the reasonable inference that the defendant is liable for
misconduct alleged.” Id. ‘Deterrnining whether the allegations in a complaint are plausible’ is
a ‘context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Young v. Speziale, Civ. No. 07-03 129, 2009 WE 3806296, at *3 (I).N,.J. Nov.
1 0. 2009) (quoting lqbal. 556 U.S. at 679). “iWihere the well—pleaded facts do not permit the
court to infer more than the mere possibility of misconduct, the complaint has alleged—hut it has
not shown’—that the pleader is entitled to relief.” Iqbal. 556 U.S. at 679.
Ill.
DISCUSSION
The Court finds that Plaintiffs Amended Complaint has not cured the deficiencies
present in the original Complaint that this Court found to be grounds for dismissal in its Opinion
of September 13. 2012. This Court dismissed Plaintilis original Complaint based on a 1nding
that Plaintiffs wife had a subscription with Prevention Magazine and that Defendants’ phone
calls were made to encourage subscription renewal. We found that these fticts triggered the
TCPA’ s “Established Business Relationship” exception. 47 C.F.R.
3
§
64. 1 200(a)(4)( I). Under
this exception, the TCPA does not apply if calls are made to customers with whom the caller has
an Established Business Relationship. The term “Established Business Relationship” is defIned
as
a prior or existing relationship formed by a voluntary two-way communication between a
person or entity and a residential subscriber with or without an exchange of
consideration, on the basis of the subscriber’s purchase or transaction with the entity
within the eighteen (18) months immediately preceding the date of the telephone
call. ,which relationship has not been previously terminated by either party.
.
47 C.F.R.
§
64.1200(0(5) (emphasis added).
Instead of providing clarity to the Court, Plaintiffs Amended Complaint serves to muddy
the factual allegations surrounding Plaintiffs and his wife’s relationship with Prevention
Magazine. However, it seems clear to the Court that although Plaintiff’s viie may not have
contracted directly with Prevention Magazine. she was receiving a subscription to the magazine
through “SkyMiles,” her frequent flyer miles program with Delta/Continental Airlines. Since the
Established Business Relationship exception applies “with or without an exchange of
consideration,” the fact that Plaintiffs wife may not have paid Prevention Magazine directly for
the subscription is of no consequence. The Court finds that Plaintiffs election to receive a free
Prevention Magazine subscription through the SkvMiles program is a sufficient “transaction” to
trigger the Established Business Relationship exception. In addition, the Court. finds thai.
Plaintiff’s notation of “Do Not Call” on forms provided b SR Miles in no way severed his
business relationship with Prevention Magazine. For these reasons. the Court finds that the
Established Business Relationship exception applies and therefore the calls made by Defendants
were permissible under the TCPA. As such, Count Four of Plaintiffs Amended Complaint is
dismissed
4
Plaintiff’s claim for treble damages is also dismissed. Plaintiff has not provided any
plausible factual allegation in his Amended Complaint to demonstrate that any of the Defendants
acted “willfully and knowingly,” as required for treble damages. 47 U.S.C.
§
227(b)(3)(C). As
such, Count Five is dismissed.
As Plaintiffs federal claim has been dismissed, the only remaining claim is that brought
under New Jersey’s Do Not Call Law. A district court is permitted to decline the exercise of
supplemental jurisdiction “if the district court has dismissed all claims over which it has original
jurisdiction.” See Kach v. Hose, 589 F.3d 626, 650 (3d Cir. 2009). The Court therefore declines
to exercise jurisdiction over the state law claim in accordance with 28 U.S.C.
¶]
1367 (c). $g
United Mine Workers of Am. v. Gibbs, 383 U.S. 715. 726 (1966) (“Certainly, if the federal
claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state
claims should be dismissed as well.”): United States. cx rd. Piacentile v. Sanot Svnthelabo. Inc..
Civ. No, 05-2927, 2010 WL 5466043, at *10 (DN.J. Dec. 30, 2010) (declining to exercise
supplemental jurisdiction over state law claims after dismissing federal FCA claims). As such,
Count Three of Plaintiff’s Amended Complaint is dismissed.
IV.
CONCLUSION
For the foregoing reasons, Defendants’ motions to dismiss are granted. An appropriate
Order accompanies this Opinion.
Date:
Original:
cc:
December
2013
Clerk’s Of6e
Hon. James B. Clark, U.S.M.J.
All Counsel of Record
File
,
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