Marden's Ark Corporation

Filing 27

ORDER denying as moot 10 Motion to Dismiss for Failure to State a Claim; denying 19 Motion to Dismiss for Failure to State a Claim. Signed by District Judge Terrence W. Boyle on 9/8/2021. (Sellers, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NORTHERN DIVISION
No. 5:20-CV-611-BO

MARDEN'S ARK CORPORATION,
individually on behalf of all others
similarly situated,
Plaintiff,
V.

JUSTIN BODENHAMER, a North
Carolina individual ,
Defendants.

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ORDER

This cause comes before the Court on defendant Justin Bodenhamer' s motions to dismiss
plaintiff Marden's Ark Corporation's complaint [DE 1] and plaintiffs amended complaint [DE
13] for failure to state a claim. For the follow ing reasons, defendant's motions to dismiss are
denied.
BACKGROUND
Plaintiff Marden's Ark Corporation (Marden's Ark) filed this action to enforce the
consumer privacy provisions of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227.
Marden ' s Ark, a non-profit in Youngsville, North Carolina, alleges that on March 11 , 2020 it
received a prerecorded call from a number belonging to Equity Pros Realty (Equity Pros). The call
was not answered and a voicemai l was left stating:
" .. . no commissions or other fees when your house sells. No percentage of sale
price, just a one-time fee and we'll get your home sold in no time. I'll call you back
tomorrow, but if you need me in the meantime, my direct line is 919-701-5551.
That was 919-701-5551. Thanks again . Look forward to speaking to you soon."

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DE 13, 125. The plaintiff called the number back and an automated system stated, "Thanks for
calling Equity Pros Realty." Marden' s Ark believes the call was prerecorded because it started
before the answering machine began recording, it was generic, it did not identify the plaintiff in
anyway, it was unsolicited, and it commercial. Marden' s Ark never consented to receiving calls
from defendant Justin Bodenhamer (Bodenhamer) or Equity Pros.
Bodenhamer is the founder and CEO of Equity Pros Realty in Raleigh, North Carolina.
Marden ' s Ark alleges this call was made by Bodenhamer because Equity Pro's address is a
residential location associated with Bodenhamer, Equity Pro's website is owned by Bodenhamer,
and it believes that Equity Pros has at most two employees. Marden ' s Ark asserts that Bodenhamer
violated 47 U.S.C. § 22(b)(l) when he left a prerecorded voicemail on Plaintiffs answering
machine.
DISCUSSION

I.

Motion to Dismiss Original Complaint
Defendant Bodenhamer has moved to dismiss the plaintiffs original complaint [DE 1] for

failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure
12(b)(6). As an amended complaint has been filed [DE 13], the motion to dismiss the original
complaint is appropriately denied as moot. See Fawzy v. Wauquiez Boats SNC, 873 F.3d 451 , 455
(4th Cir. 2017) (amended complaint "renders original complaint of no effect.") (internal quotation
and citation omitted).
II.

Motion to Dismiss Amended Complaint
Defendant Bodenhamer has moved to dismiss plaintiffs amended complaint [DE 13] for

failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil
Procedure 12(b)(6). A complaint must allege enough facts to state a claim for relief that is

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facially plausible. Bell Atlantic Corp. v. Twombly, 550 U.S . 544, 570 (2007) . In other words, the
facts alleged must allow a court, drawing on judicial experience and common sense, to infer
more than the mere possibility of misconduct. Nemet Chevrolet, Ltd. v. Consumeraffairs.com,

Inc., 591 F.3d 250, 256 (4th Cir. 2009). The court " need not accept the plaintiff's legal
conclusions drawn from the facts , nor need it accept as true unwarranted inferences,
unreasonable conclusions, or arguments." Philips v. Pitt County Mem. Hosp. , 572 F.3d 176, 180
(4th Cir. 2009) (internal alteration and citation omitted). When acting on a motion to dismiss
under Rule 12(b)(6), "the court should accept as true all well-pleaded allegations and should
view the complaint in a light most favorable to the plaintiff." Mylan Labs. , Inc. v. Matkari , 7
F.3d 1130, 1134(4thCir.1993).
The TCPA prohibits, with certain exceptions not applicable here, any person from making
any call using a prerecorded voice to a cellular telephone number without prior express consent.
47 U.S.C. § 227(b)(l)(A)(iii). Bodenhamer makes two arguments in support of his motion to
dismiss : (1) that Marden's Ark has not sufficiently alleged the use of a prerecorded voice and (2)
that plaintiff's allegations fail to provide any reasonable inference that Bodenhamer himself called
Marden ' s Ark. The Court has considered the complaint in light of the applicable standard and
determines that Marden's Ark has plausibly alleged that Bodenhamer violated the TCP A.
Regarding Bodenhamer's first argument, Marden ' s Ark has alleged that the voice message
was prerecorded because it was generic and it began before the answering machine started
recording, which can be characteristic of prerecorded voice messages. DE 13,

11 25-28.

" Calls

made using an artificial or prerecorded voice are independently actionable. " Brown v. Ocwen Loan

Servicing LLC, No. 8:18-CV-136-T-60AEP, 2019 WL 4221718 , at *5 (M.D. Fla. Sept. 5, 2019).
Plaintiff's amended complaint is further sufficient at this stage to allege that a prerecorded voice

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message was left on Marden Ark's answering machine. Discovery is the appropriate time fo r
Plaintiff to learn about the precise technology used to leave the voice message. Wilson v. Quest

Diagnostics Inc. , No. 2: 18-11 960, 2018 U.S. Dist. LEXIS 212023 , at *9 (D.N.J. Dec. 10, 2018).
Regarding Bodenhamer' s second argument, Marden's Ark plausibly alleges that
Bodenhamer must have made the call because he is the CEO and founder of Equity Pros and Equity
Pros has at most two employees. DE 13,

26-29. "A TCPA plaintiff can establi sh that the

defendant "made" a call through theories of direct or vicarious liability." Aaronson v. CHW Grp.,

Inc.,

o. l:18-CV-1533, 20 19 WL 8953349, at *2 (E. D. Va. Apr. 15, 2019) (citation omitted). In

order to establish direct liability, the plaintiff must show that the defendant actually, physically
initiated the call at issue and include facts to support hi s conclusion that the defendant is the party
that made the call. Id. Marden ' s Ark's amended complaint plausibly alleges that Bodenhamer
himself is the person who initiated the call and recorded the voice message.
In sum, Marden's Ark has alleged a plausible claim for relief and defendant's motion to
dismiss [DE 19] for failure to state a claim is denied .

Accordingly, for the foregoing reasons, defendant Bodenhamer's motion to dismiss [DE
10] plaintiffs original complaint is DENIED AS MOOT. Defendant Bodenhamer's motion to
di smi ss [19] plaintiffs amended complaint is DENIED.

SO ORDERED, thi s (

day of September, 202 1.

TRRENCE W. BOYLE
UNITED STATES DISTR I ~
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