Smith v. Rite Aid Corporation
Filing
17
DECISION AND ORDER denying 8 Motion to Dismiss for Failure to State a Claim. Defendant's motion to dismiss (Docket No. [#8]) is denied. Pursuant to Fed.R.Civ.P. 12(a)(4)(A), Defendant shall file and serve an answer to the Complaint within fourteen days after entry of this Decision and Order. Signed by Hon. Charles J. Siragusa on 11/7/18. (KAP)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
__________________________________________________
GINGER SMITH,
Plaintiff,
DECISION AND
ORDER
-vs17-CV-6044 CJS
RITE AID CORPORATION,
Defendant.
__________________________________________________
APPEARANCES
For Plaintiffs:
Kenneth R. Hiller
Seth Andrews
Law Offices of Kenneth Hiller
6000 North Bailey Avenue, Suite 1A
Amherst, New York 14226
For Defendant:
Lisa Soung Hee Yun
Sheppard Mullin Richter & Hampton, LLP
501 West Broadway, 19th Floor
San Diego, California 92101
Mark E. McGrath
Rena Andoh
Sheppard Mullin Richter & Hampton LLP
30 Rockefeller Plaza, 24th Floor
New York, New York 10112
INTRODUCTION
In this action Ginger Smith (“Plaintiff”) alleges that Rite Aid Corporation (“Rite Aid” or
“Defendant”), a retail pharmacy chain, violated the Telephone Consumer Protection Act of 1991
(“TCPA”), 47 U.S.C. § 227(b)(1)(A)(iii), by making “robocalls” to her cellular telephone, without
her permission, that were intended for a different customer, for whom Rite Aid had filled a
prescription. Now before the Court is Defendant’s motion to dismiss the Complaint for failure to
state a claim. The application is denied.
1
BACKGROUND
According to the Complaint, between September 2016 and January 2017, Rite Aid made
a number of calls to Plaintiff’s cellular telephone, using an “automatic dialing machine” and
“artificial and/or pre-recorded voiced messages.” Plaintiff had never given Rite Aid permission
to call her cell phone. Rather, the calls apparently were intended for the person to whom
Plaintiff’s telephone number had previously been assigned, who had given Rite Aid permission
to contact her concerning her prescriptions. Although, it could also be that Rite Aid simply mistranscribed its customer’s number.
The Complaint indicates that Plaintiff received such “wrong number” calls “multiple times
per week and often times multiple times per day,” but gives no indication whether Plaintiff ever
notified Rite Aid that she was receiving the calls by mistake.
As for the content of the recorded messages, Plaintiff has submitted a digital copy of one
such message, apparently representative of all the messages, which states:
Hello, this is your Rite Aid Pharmacy calling to inform [customer name] that the
prescription, or prescriptions, you recently requested to be filled have been completed
and are ready for you to pick up at 689 Ridge Road East, your Rite Aid Pharmacy, at your
earliest convenience. Thank you. Goodbye.
Docket No. [#11-2]. As can be seen, the message does not contain a contact telephone number
for Rite Aid, or give the recipient a means of opting-out of receiving future calls.
On January 19, 2017, Plaintiff commenced this action. The Complaint purports to set
forth a single cause of action, pursuant to the TCPA and its accompanying regulations, 47 C.F.R.
§ 64.1200 et seq. In particular, the pleading indicates that Rite Aid violated 47 U.S.C. §
227(b)(1)(A)(iii), which states, in pertinent part:
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-2
(A) to make any call (other than a call made for emergency purposes or made with the
prior express consent of the called party) using any automatic telephone dialing system
or an artificial or prerecorded voice-***
(iii) 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;
47 U.S.C.A. § 227 (West). This provision has been interpreted to prohibit robocalls to a cellular
phone whose owner has not given express consent,1 except where the call is made for an
emergency purpose, or where the call is to collect a debt owed to or guaranteed by the U.S. The
“emergency purpose” exception includes “calls made necessary in any situation affecting the
health and safety of consumers.” 47 C.F.R. § 64.1200.
The Federal Communications Commission (“FCC”), which is the agency designated by
the TCPA to promulgate regulations implementing the Act, has also issued a ruling recognizing
another exception, covering “calls for which there is exigency and that have a healthcare
treatment purpose,” including “prescription notifications.” ACS International v. Federal
Communications Commission, 885 F.3d 687,711 (D.C. Cir. 2018). However, to qualify for this
exemption, such calls must meet several additional criteria. Specifically, the FCC ruling states:
We grant the exemption, with the conditions below, but restrict it to calls for which there
is exigency and that have a healthcare treatment purpose, specifically: appointment and
1
Consent in this regard refers to consent by the person actually receiving the call, not the person for whom the
call was intended. See, e.g., In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of
1991, 30 F.C.C. Rcd. 7961, 8000, 2015 WL 4387780 at *26 (2015) (“We clarify that the TCPA requires the
consent not of the intended recipient of a call, but of the current subscriber (or non-subscriber customary user of
the phone).”). Consequently, in situations involving robocalls made to a “wrong number,” the call is deemed to
have been made without consent, even if the person who was previously assigned the telephone number gave
consent. See, ACA Intl. v. FCC, 885 F.3d 687, 705 (D.C. Cir. 2018) (“[T]he reassignment of a wireless number
extinguishes any consent given by the number’s previous holder and exposes the caller to liability for reaching a
party who has not given consent.”).
3
exam confirmations and reminders, wellness checkups, hospital pre-registration
instructions, pre-operative instructions, lab results, post-discharge follow-up intended to
prevent readmission, prescription notifications, and home healthcare instructions.
***
We adopt the following conditions for each exempted call (voice call or text message)
made by or on behalf of a healthcare provider:
1) voice calls and text messages must be sent, if at all, only to the wireless telephone
number provided by the patient;
2) voice calls and text messages must state the name and contact information of the
healthcare provider (for voice calls, these disclosures would need to be made at the
beginning of the call);
3) voice calls and text messages are strictly limited to the purposes permitted in para. 146
above; must not include any telemarketing, solicitation, or advertising; may not include
accounting, billing, debt-collection, or other financial content; and must comply with
HIPAA privacy rules;
4) voice calls and text messages must be concise, generally one minute or less in length
for voice calls and 160 characters or less in length for text messages;
5) a healthcare provider may initiate only one message (whether by voice call or text
message) per day, up to a maximum of three voice calls or text messages combined per
week from a specific healthcare provider;
6) a healthcare provider must offer recipients within each message an easy means to opt
out of future such messages, voice calls that could be answered by a live person must
include an automated, interactive voice- and/or key press-activated opt-out mechanism
that enables the call recipient to make an opt-out request prior to terminating the call,
voice calls that could be answered by an answering machine or voice mail service must
include a toll-free number that the consumer can call to opt out of future healthcare calls,
text messages must inform recipients of the ability to opt out by replying “ “STOP,” which
will be the exclusive means by which consumers may opt out of such messages; and,
7) a healthcare provider must honor the opt-out requests immediately.
In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30
F.C.C. Rcd. 7961, 8031-8032, 2015 WL 4387780 at *49-50.
4
The pleading contends that the calls Plaintiff received were made “willfully and/or
knowingly,” thereby causing her “severe emotional distress.” The pleading demands statutory
damages in the amount of $500 for each call received, as well as treble damages pursuant to
47 U.S.C. § 227(b)(3)(C) (Indicating that the Court may award treble damages if it “finds that the
defendant willfully or knowingly violated” 47 U.S.C. § 227).
On March 13, 2017, Rite Aid filed the subject motion [#8] to dismiss pursuant to Rule
12(b)(6), in lieu of an answer. Rite Aid contends that because the phone messages pertained
to a medical prescription, there was no violation of 47 U.S.C. § 227, since the calls fall under
either the “emergency purpose” exception or the “exigent healthcare-related call” exception.
In opposition to Rite Aid’s motion, Plaintiff contends, first, that the “exigent healthcarerelated call” exception does not apply to Rite Aid’s calls, because they “fail[ed] to adhere to the
FCC’s list of strict criteria required for the exemption for automated calls from health care
providers.” Plaintiff points out, for example, that she never provided her phone number to Rite
Aid; that Rite Aid exceeded the number of calls allowed per day; and that Rite Aid did not provide
a way to “opt out” of receiving the calls. Alternatively, Plaintiff contends that the “emergency
purposes” exemption does not apply, because prescription notifications are not an “emergency.”
On September 11, 2017, Rite Aid filed a reply.
On September 14, 2017, counsel for the parties appeared before the undersigned for oral
argument. During oral argument, in response to the Court’s questioning, Rite Aid’s attorney
acknowledged that the calls made to Plaintiff’s phone did not meet the requirements established
by the FCC, in its 2015 TCPA ruling, concerning the so-called exigent healthcare exception.
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ANALYSIS
Defendant has moved to dismiss this action pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure (“FRCP”). The legal principles applicable to such a motion are clear:
Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the
claim showing that the pleader is entitled to relief, in order to give the defendant fair notice
of what the claim is and the grounds upon which it rests. While a complaint attacked by a
Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's
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.
Factual allegations must be enough to raise a right to relief above the speculative level,
on the assumption that all the allegations in the complaint are true (even if doubtful in
fact).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964–65, 167 L.Ed.2d 929 (2007)
(citations omitted); see also, ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98
(2d Cir.2007 ) (“To survive dismissal, the plaintiff must provide the grounds upon which his claim
rests through factual allegations sufficient ‘to raise a right to relief above the speculative level.’”)
(quoting Bell Atl. Corp. v. Twombly) (footnote omitted). When applying this standard, a district
court must accept the allegations contained in the complaint as true and draw all reasonable
inferences in favor of the nonmoving party. Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir.1999),
cert. denied, 531 U.S. 1052, 121 S.Ct. 657 (2000).
As indicated above, in moving to dismiss, Rite Aid contends that the robocalls which it
made to Plaintiff’s cell phone fall under either the TCPA’s “emergency exception” or its “exigent
healthcare message exception.” These exceptions are generally considered to be affirmative
defenses, which the defendant has the burden of proving. See, e.g., Latner v. Mount Sinai Health
Sys., Inc., No. 16 CIV. 683 (AKH), 2016 WL 10571897, at *2 (S.D.N.Y. Dec. 14, 2016)
(“emergency purpose” exception to TCPA is an affirmative defense), aff'd sub nom. Latner v.
Mount Sinai Health Sys., Inc, 879 F.3d 52 (2d Cir. 2018), as amended (Jan. 9, 2018); see also,
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Lindenbaum v. CVS Health Corp., No. 1:17-CV-1863, 2017 WL 5562072, at *1 (N.D. Ohio Nov.
20, 2017) (referring to exigent healthcare exception as an affirmative defense).
A Rule 12(b)(6) motion to dismiss based upon an affirmative defense cannot be granted
unless it is clear from the face of the pleading that the claim is barred as a matter of law. See,
Deswal v. U.S. Nat. Ass'n, 603 F. App’x 22, 23–24 (2d Cir. 2015) (“Although the statute of
limitations is ordinarily an affirmative defense that must be raised in the answer, a statute of
limitations defense may be decided on a Rule 12(b)(6) motion if the defense appears on the face
of the complaint.”) (citations omitted); see also, Garcia v. Does, 779 F.3d 84, 96–97 (2d Cir.
2015) (“It is certainly true that motions to dismiss a plaintiff's complaint under Rule 12(b)(6) on
the basis of an affirmative defense will generally face a difficult road.”). Consequently, Rite Aid
cannot prevail on its motion unless it demonstrates, from the face of the Complaint, that either
the “emergency purpose” exception or the “exigent healthcare” exception applies to the calls
that it made to Plaintiff.
Rite Aid clearly has not made such a showing with regard to the “exigent healthcare”
message exception, since the Complaint indicates that the calls made to Plaintiff do not meet
the criteria established by the FCC. As just one example, the FCC permits a caller to make only
one exigent healthcare call per day, “up to a maximum of three voice calls . . . per week from a
specific healthcare provider,” and the Complaint alleges that Plaintiff received such calls from
Rite Aid “often multiple times in a single day.”2 Accordingly, Rite Aid’s motion is denied insofar
as it is based on the exigent healthcare call exception.
Rite Aid nevertheless contends that “prescription notice” calls fit under the “emergency
purpose” exception. In this regard, Rite Aid does not argue that it is evident, from the face of
2
Complaint at ¶ 15.
7
the Complaint, that the prescription-notice calls that it made to Plaintiff involved an actual
“emergency,” as that term is commonly understood. For example, Rite Aid does not claim that
the intended recipient of the calls would suffer death or serious injury if she did not receive the
prescription medication.3
Rather, Rite Aid relies on the TCPA’s statutory definition of the
“emergency purpose,” which applies to calls “made necessary in any situation affecting the
health and safety of consumers.” See, 47 C.F.R. § 64.1200(f)(4) (“The term emergency purposes
means calls made necessary in any situation affecting the health and safety of consumers.”). In
sum, Rite Aid argues that prescription notices affect the health of consumers, and are therefore
covered by the emergency purpose exception. However, to the extent that Rite Aid is requesting
the Court to rule, as a matter of law, that prescription notice calls are necessarily shielded from
TCPA liability by the emergency purpose exception, the Court declines to do so.
“It is a commonplace of statutory construction that the specific governs the general. . . .
[T]his canon is particularly relevant where two provisions are interrelated and closely positioned,
both in fact being parts of the same scheme.” Arizona v. Inter Tribal Council of Arizona, Inc., 570
U.S. 1, 31, 133 S. Ct. 2247, 2266, 186 L. Ed. 2d 239 (2013) (citations and internal quotation
marks omitted). Under the TCPA regulatory scheme at issue, both the emergency purposes
exception and the exigent healthcare message exception could arguably apply to the subject
calls, but the former exception is more general, while the latter exception (which specifically
refers to “prescription notices”) is more specific. Consequently, the more-specific provision
applies, which means that prescription notice calls must meet the requirements for exigent
3
Rite Aid would be hard pressed to make a plausible argument in that regard in any event, since it appears that it
robotically continued to send the prescription notification calls to Plaintiff’s phone over a period of three months,
despite not receiving any response, and without taking any further action to determine why the prescription had
not been picked up. This indicates that Rite Aid did not consider the situation to be an emergency in the everyday
sense of the word.
8
healthcare calls, discussed earlier. Additionally, interpreting the regulatory framework in the
manner urged by Rite Aid would make the FCC’s inclusion of “prescription notices” within the
types of calls covered by the exigent healthcare message exception superfluous.4 For these
reasons, Rite Aid cannot rely on the emergency purpose exception to obtain dismissal under
Rule 12(b)(6).
As Rite Aid correctly points out, some other district courts have found that the emergency
purpose exception excludes prescription notice calls from TCPA liability, at least where the
recipient never notifies the defendant pharmacy that the calls are unwelcome. For example, in
Roberts v. Medco Health Solutions, Case No. 4:15 CV 1368 CDP, 2016 WL 3997071 (E.D. Miss.
Jul. 26, 2016), the court granted the defendant’s summary judgment motion, finding that the
prescription-notice calls in that case fit under the emergency purpose exception. As in the instant
case, the calls in Roberts were “wrong number” calls, and the intended recipients had given their
consent for the calls. The calls were for various members of the same family, including a child
for whom the medication was quite important, and the family had notified the defendant that the
son’s medication was a “must have,” and that he “could end up in the hospital” if he did not
receive the medication. Not all of the calls involved in Roberts, however, pertained to the son’s
medications. Nevertheless, the court interpreted the emergency purposes exception broadly to
cover all of the prescription notice calls, finding that calls relating to prescription medications “fall
within the ambit of ‘calls made necessary in any situation affecting the health and safety of
consumers.’” Roberts, 2016 WL 3997071 at *3; accord, Lindenbaum v. CVS Health Corp., No.
4
The FCC has indicated, in a brief that it filed in another proceeding, that to the extent that there might be a
healthcare-related call that falls under the emergency purpose exception but outside of the exigent healthcare call
exception, “parties can rely on the emergency-purposes exception on a case-by-case basis.” See, ACA
INTERNATIONAL, et al., Petitioners, Cavalry Portfolio Services, LLC, et al., Intervenors for Petitioners, v.
FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents., 2016 WL 194146
(C.A.D.C.), 72. The Court interprets this to mean that a party cannot rely on the emergency purpose exception for
calls, such as those in this case, that fit under the exigent healthcare call exception.
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1:17-CV-1863, 2018 WL 501307 at *2-3 (N.D. Ohio Jan. 22, 2018); see also, St. Clair v. CVS
Pharmacy, 222 F.Supp.3d 779, 780-781 (N.D.Ca. 2016) ( Indicating that continuing to call about
a prescription “when the customer has made clear that he does not want or need the calls, does
not fall within the definition of an ‘emergency purpose’”; that the FCC would not have needed to
list prescription notices within the exigent healthcare call exception if they were already covered
by the emergency purpose exception; and that Roberts did not establish a per se rule, but rather,
was decided on its own facts.); Coleman v. Rite Aid of Georgia, Inc., 284 F.Supp.3d 1343, 13461347 (N.D. Ga. 2018) (Agreeing with St. Clair decision, that emergency purpose exception
cannot apply where the recipient has informed the pharmacy that it does not want to receive
prescription notice calls). Nonetheless, for the reasons discussed above, the Court disagrees
with Roberts.
CONCLUSION
Defendant’s motion to dismiss (Docket No. [#8]) is denied. Pursuant to Fed.R.Civ.P.
12(a)(4)(A), Defendant shall file and serve an answer to the Complaint within fourteen days after
entry of this Decision and Order.5
SO ORDERED.
Dated: Rochester, New York
November 7, 2018
ENTER:
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
5
See, Fed.R.Civ.P. 12(a)(4)(A) (“if the court denies the motion or postpones its disposition until trial, the
responsive pleading must be served within 14 days after notice of the court's action”).
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