CARRERA v. MAJOR ENERGY SERVICES, LLC et al

Filing 32

MEMORANDUM ORDER denying 25 Defendants Motion to Dismiss. Signed by Judge Michael A. Shipp on 3/29/2016. (eaj)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

RODRIGO CARRERA, individually and on
behalf of all others similarly situated,
Plaintiff,
v.

Civil Action No. 15-3208 (MAS) (LHG)
MEMORANDUM ORDER

MAJOR ENERGY SERVICES, LLC, et al.,
Defendants.

This matter comes before the Court on Defendants Major Energy Services, LLC ("Major
Energy") and Respond Power, LLC's ("Respond Power") (collectively, "Defendants") motion to
dismiss Plaintiff Rodrigo Carrera's ("Plaintiff') First Amended Complaint ("Amended
Complaint") pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (ECF No. 25.)
This is a putative class action brought by Plaintiff against Defendants for violations of the
Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. ("TCPA"). (See generally Am.
Compl., ECF No. 18.) Plaintiff alleges that Defendants 1 "make telemarketing calls to cellular
telephones advertising their energy and power services without the prior express written consent
of the called party." (Id. if 1.) Specifically, Plaintiff alleges that on April 7, 2015, and April 9,
2015, he received telephone calls from a person claiming to represent Respond Power. (Id. ifif 2033.) In addition, Plaintiff alleges that he answered the calls "and there was a brief pause before a
live operator got on the line and began talking." (Id. ifif 22, 29.) Additionally, Plaintiff alleges
that his telephone number has been on the national Do Not Call Registry since October 12, 2005,

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Plaintiff alleges that Major Energy and Respond Power "are the same company" but "have
separate registrations." (Am. Compl. if 13.)

and he never provided express consent to Defendants to call his telephone number. (Id.

ilil 35, 39.)

Plaintiffs four-count Amended Complaint asserts claims for negligent and knowing or willful
violation of the TCP A for telephone calls made by an automatic telephone dialing system, and
negligent and knowing or willful violation of the TCP A for calls made to those on the national Do
Not Call Registry. (See generally Am. Compl.)
In support of their motion to dismiss, Defendants rely on documents outside the Amended
Complaint, including: ( 1) a Lexis Nexis search showing Plaintiffs alleged former address; (2) a
log of Defendants' telephone calls to Plaintiff; (3) transcripts and a CD of the conversations
between Plaintiff and Defendants; (4) a screenshot of the online order summary showing Plaintiffs
enrollment with Defendants; (5) data from an electronic data interchange; and (6) an e-mail
message from PSE&G. (ECF No. 25.) "As a general matter, a district court ruling on a motion to
dismiss may not consider matters extraneous to the pleadings." In re Burlington Coat Factory

Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (citing Angelastro v. Prudential-Bache Sec., Inc.,
764 F.2d 939, 944 (3d Cir. 1985)). "However, an exception to the general rule is that a document

integral to or explicitly relied upon in the complaint may be considered without converting the
motion [to dismiss] into one for summary judgment." Id. (internal quotation marks omitted). None
of the documents Defendants attach to their motion to dismiss were attached to, integral to, or
explicitly relied on in the Amended Complaint, nor are they matters of public record. Accordingly, '
the Court will not consider those extraneous documents or the arguments Defendants make that
rely on those documents.
Defendants' only other argument in support of dismissal is that Plaintiff failed to plead any
factual content to allow the Court to draw a reasonable inference that Defendants used an automatic
telephone dialing system. Plaintiff, however, alleged that after he answered the calls "there was a

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brief pause before a live operator got on the line and began talking." (Id.
allegation is sufficient to state a plausible claim for relief.

ifif 22, 29.)

This factual

See Connelly v. Hilston Grant

Vacations, No. 12-599, 2012 WL 2129364, at *1 (S.D. Cal. June 11, 2012) (denying a motion to

dismiss for failure to state a claim because allegation of delay prior to a live person answering the
telephone was sufficient to support a reasonable inference that the defendant used an automatic
telephone dialing system); Trumper v. GE Capital Retail Bank, 79 F. Supp. 3d 511, 513 (D.N.J.
2012) (distinguishing the facts of Connelly and dismissing a plaintiffs TCPA claim for failing to
allege any facts that would support an inference that an automatic telephone dialing system was
used). Accordingly,
IT IS on this

.Y-f~y of March 2016, ORDERED that Defendants' motion to dismiss

(ECF No. 25) is DENIED.

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