Reo v. AffAction, LLC et al
Filing
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Memorandum of Opinion and Order denying defendants' Motion to dismiss the complaint (Related Doc # 14 ). Judge Patricia A. Gaughan 12/18/15(C,KA)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
Bryan Anthony Reo,
Plaintiff,
Vs.
Affaction, LLC, et al.,
Defendant.
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CASE NO. 1:15 CV 2348
JUDGE PATRICIA A. GAUGHAN
Memorandum of Opinion and Order
INTRODUCTION
This matter is before the Court upon Defendants’ Rule 12(b)(6) Motion to Dismiss the
Complaint (Doc. 14). This case arises under the Telephone Consumer Protection Act. For the
reasons that follow, the motion is DENIED.
ANALYSIS
Defendants move the Court to dismiss this action pursuant to Fed.R.Civ.Pro. 12(b)(6) for
failure to state a claim. According to defendants, there is no evidence that either defendant ever
made a telephone call to plaintiff. Defendants argue that they are not engaged in the business of
telemarketing. They further claim that they have never engaged any agent to provide
telemarketing services. Rather, defendants simply own a website. According to defendants, they
have no ownership or control over the telephone numbers that made the telemarketing calls to
plaintiff. In response, plaintiff provides a certified transcript of one call he received. In the
transcript, the telemarketer identifies herself as a representative of senior care, which is the
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website owned by defendants. The telemarketer further indicates that plaintiff can go to
defendants’ website to have his name removed from the call list. In reply, defendants provide
evidence supporting their position that the telemarketer is not defendants’ agent.
Upon review, the Court DENIES defendants’ motion. In support of their Rule 12 motion,
defendants present evidence that is outside the corners of the complaint. Therefore, pursuant to
Rule 12(d), the Court must treat the motion as “one for summary judgment under Rule 56.” The
rule further requires that the Court give all parties a “reasonable opportunity to present all the
material that is pertinent to the motion.” The Court finds that, given the nature of the evidentiary
arguments raised by defendants, together with the fact that this case is in its infancy, plaintiff
should be permitted to engage in some discovery. The discovery will assist the Court in
addressing the nature of the relationship (if any) between defendants and the telemarketer
representing herself as a representative of defendants.
CONCLUSION
For the foregoing reasons, Defendants’ Rule 12(b)(6) Motion to Dismiss the Complaint
(Doc. 14) is DENIED.
IT IS SO ORDERED.
Date:
12/18/15
/s/Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge
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