Lindenbaum v. CVS Health Corporation

Filing 27

Opinion & Order signed by Judge James S. Gwin on 1/22/18. The Court, for the reasons set forth in this order, grants defendant's motion for judgment on the pleadings and dismisses defendant's motion for a stay as moot. (Related Doc. 10 ) (D,MA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
-----------------------------------------------------:
:
:
:
:
:
:
:
:
:
:

SHARI LINDENBAUM,
Plaintiff,
vs.
CVS HEALTH CORPORATION,
Defendant.

CASE NO. 1:17-CV-1863

OPINION & ORDER
[Resolving Doc. 10]

-----------------------------------------------------JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Plaintiff Shari Lindenbaum sued Defendant CVS Health Corporation for violations of the
Telephone Consumer Protection Act (TCPA).1 Lindenbaum’s complaint seeks class certification
but the Court has not certified any class. Defendant now moves for judgment on the pleadings.2
Alternatively, Defendant moves to stay the case until the D.C. Circuit rules on the interpretation
of TCPA provisions that it argues are relevant to this suit.3
For the following reasons, the Court GRANTS Defendant’s motion for judgment on the
pleadings. As a result, the Court dismisses Defendant’s motion for a stay as MOOT.
I. BACKGROUND
Plaintiff alleges that Defendant CVS Health Corporation made at least six prerecorded
prescription reminder calls to her cellphone.4 Plaintiff allegedly received these calls between
February 2017 and March 2017 from Defendant’s Shaker Heights, Ohio retail pharmacy.5

1

Doc. 1.
Doc. 10. Plaintiff opposes. Doc. 24. Defendant responds. Doc. 25.
3
Doc. 10. Plaintiff opposes. Doc. 24. Defendant responds. Doc. 25.
4
Doc. 1 at ¶¶ 32-38.
5
Id. at ¶¶ 35-36.
2

Case No.
Gwin, J.

1:17-cv-1863

Plaintiff also alleges that she never provided “prior express written consent” to Defendant
to receive the prerecorded calls.6 She believes that she received these calls from Defendant
because she has a recycled cellphone number.7 She believes that Defendant’s calls are intended
for the previous subscriber of her cellphone number.8 Plaintiff alleges that her cellphone number
has been registered on the National Do Not Call Registry since December 17, 2004.9
On behalf of herself and a class yet to be certified, Plaintiff brings two counts of TCPA
violations.10 The Court previously denied Plaintiff’s motion to strike fifteen of Defendant’s
affirmative defenses.11
The Court now addresses Defendant’s motion for judgment on the pleadings. Defendant
argues that Plaintiff’s claims should be dismissed because (1) the Court does not have personal
jurisdiction over Defendant; (2) the alleged calls are exempted from liability under TCPA’s
“emergency purposes” exception; and (3) Plaintiff fails to allege the necessary elements of a TCPA
violation.12 Alternatively, Defendant moves to stay the case until the D.C. Circuit rules on the
interpretation of TCPA provisions that it argues are dispositive to this case.13
II. LEGAL STANDARD
On a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c),
the Court employs the same standard as a motion to dismiss for failure to state a claim upon which
relief can be granted under Rule 12(b)(6).14 Thus, “‘[f]or purposes of a motion for judgment on
the pleadings, all well-pleaded material allegations of the pleadings of the opposing party must be

6

Id. at ¶ 38.
Id. at ¶ 17.
8
Id.
9
Id. at ¶ 33.
10
Id. at ¶ 43.
11
Doc. 18.
12
Doc. 10-1.
13
Id.
14
See Tucker v. Middleburg–Legacy Place, 539 F.3d 545, 549 (6th Cir. 2008).
-27

Case No.
Gwin, J.

1:17-cv-1863

taken as true, and the motion may be granted only if the moving party is nevertheless clearly
entitled to judgment.’”15 The plaintiff need not try to prove her case in the complaint. But there
must be “more than a sheer possibility that the defendant has acted unlawfully.”16
III. ANALYSIS
Assuming the Court could exercise personal jurisdiction over Defendant CVS Health
Corporation, the Court grants Defendant’s motion for judgment on the pleadings. The calls at
issue fall under TCPA’s “emergency purposes” exception and are therefore exempt from liability.
47 U.S.C. § 227(b)(1)(A) exempts from liability “a call made for emergency purposes.”
47 C.F.R. § 64.1200(f)(4) defines “emergency purposes” as “calls made necessary in any situation
affecting the health and safety of consumers.”
Plaintiff generally alleges that CVS incorrectly made pharmacy reminder calls to Plaintiff’s
phone. Plaintiff says CVS made the reminder calls to a CVS customer’s cellphone number but
that cellphone number had been recycled and says Plaintiff had no relation with the CVS customer
who had formerly used the recycled cellphone number.
The calls here were made for the “health and safety of consumers.” In most cases,
information about where, when, and how to refill a prescription concerns the health and safety of
consumers, who may be reliant on their medication.
The prescription reminders calls are also necessary. As the court in Roberts v. Medco
Health Solutions, Inc. recognized, “in many instances a patient’s ability to timely receive a
prescribed medicine is critical in preventing a major health emergency.”17
Plaintiff’s arguments against applying the exception do not persuade the Court otherwise.

15

Id.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007)).
17
No. 4:15 CV 1368 CDP, 2016 WL 3997071, at *3 (E.D. Mo. July 26, 2016).
-316

Case No.
Gwin, J.

1:17-cv-1863

First, Plaintiff’s arguments that the prescription reminder calls do not concern an
emergency situation18 are unpersuasive.

The Federal Communications Commission has

recognized that the “emergency purposes” exception should be interpreted broadly.19

In

interpreting the exception broadly, the Roberts court found that the exception’s plain language did
not limit the exception to the large scale emergencies like power outages, severe weather, terrorist
attacks, AMBER alerts, or unexcused school absence alerts that Plaintiff suggests.20
Second, Plaintiff’s reliance on St. Clair v. CVS Pharmacy, Inc. is misplaced. That case
held that the prescription reminder calls did not fall under the “emergency purposes” exception
because the St. Clair plaintiff had received continued reminder calls after specifically asking CVS
to stop.21 The St. Clair court held that there could not be an “emergency” when the customer had
already told CVS he did not want or need the calls.22 Unlike in St. Clair, Plaintiff fails to allege
any affirmative action she took to tell CVS that CVS was calling the wrong customer number.23
Here, Plaintiff merely alleges that she never provided her “prior express written consent” to
Defendant to receive the calls.
Third, the Court need not wait for further discovery here before determining this issue. It
is not clear how further discovery would preclude the calls from falling under “emergency
purposes.” Lindenbaum alleges that the calls were “prescription reminders” that she never

18

Doc. 24 at 16-17.
In the Matter of the Tel. Consumer Prot. Act of 1991, 7 F.C.C. Rcd. 2736, 2738 (1992) (“The legislative history of
the TCPA indicates a congressional intent to interpret the term ‘emergency’ broadly rather than narrowly.”).
20
Roberts, 2016 WL 3997071, at *3.
21
St. Clair v. CVS Pharmacy, Inc., 222 F. Supp. 3d 779, 780 (N.D. Cal. 2016).
22
Id.
23
See also Coleman v. Rite Aid of Georgia, Inc., No. 1:17-CV-946-TCB, 2018 WL 354618, at *2 (N.D. Ga. Jan. 10,
2018) (only finding no “emergency purposes” exception applied where plaintiff specifically alleged he “told
Defendant’s pharmacy employee that the wrong person was being called;” “told the Defendant’s pharmacy employee
that he did not know the person to whom the messages were directed;” and “requested Defendant stop the calls to his
cellular phone” (internal quotation marks omitted)).
-419

Case No.
Gwin, J.

1:17-cv-1863

affirmatively tried to stop, which as explained, is enough to exempt them from liability under the
“emergency purposes” exception.
Accordingly, assuming the Court could exercise personal jurisdiction over Defendant, the
Court dismisses Plaintiff’s TCPA claims as exempt from liability.24
IV. CONCLUSION
For the above reasons, the Court GRANTS Defendant’s motion for judgment on the
pleadings. Accordingly, the Court also dismisses Defendant’s motion for a stay as MOOT.

IT IS SO ORDERED.

Dated: January 22, 2018

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

Because the Court finds that the alleged calls fall under the “emergency purposes” exception, the Court does not
address Defendant’s other arguments regarding Plaintiff’s failure to allege a TCPA claim (see Doc. 10-1 at 19-22).
-524