Salmon v. CRST Expedited, Inc et al
OPINION AND ORDER by Judge Claire V Eagan directing defendant Alicia Croker to file her answer to the complaint 2 no later than 10/1/14 ; denying 22 Motion to Dismiss (Re: 2 Complaint ) (RGG, Chambers)
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
CRST EXPEDITED, INC., et al.,
Case No. 14-CV-265-CVE-TLW
OPINION AND ORDER
Now before the Court is defendant Alicia Croker/Turnquist’s1 Motion to Dismiss (Dkt. # 22).
Defendant Alicia Croker, proceeding pro se, denies the allegations of plaintiff Caleb Salmon’s
complaint, and Croker asks the Court to dismiss the claims against her. Plaintiff, also proceeding
pro se, responds that a defendant’s mere denial of a complaint’s allegations is not a legitimate reason
to dismiss a complaint, and plaintiff asks the Court to deny the motion to dismiss.
Salmon alleges that he registered his cellular phone number on the national Do-Not-Call
Registry in 2008 and the number has been continuously registered since that time. Dkt. # 2, at 4.
He claims that “[o]ver the past year [he] has been bombarded with phone calls, autodialed calls,
prerecorded messages, spam texts, and spam voicemails from persons trying to obtain confidential
information or credit card numbers from him, or to sell him products and services he does not want.”
Id. He believes that some of his personal identifying information has been compromised and that
the persons calling him are part of a “criminal enterprise of scammers and identity thieves.” Id.
The complaint identifies the defendant as “Alicia Croker/Turnquist,” but the defendant calls
herself “Alicia Croker.” The Court will refer to the defendant as Alicia Croker in this
Opinion and Order.
Salmon alleges that the conduct of defendants has violated the Telephone Consumer Protection Act,
47 U.S.C. § 227 (TCPA). As to defendant Croker, Salmon alleges that she and other defendants use
an autodialing system developed by Dennis Bayne, and Salmon claims that he has conducted
research linking Croker to a website that advertises the use of Bayne’s autodialing system. Id. at
6-7; Dkt. # 23, at 2. Salmon alleges six claims for relief against each defendant: (1) violation of the
TCPA; (2) violation of the Oklahoma Consumer Protection Act, OKLA. STAT. tit. 15, § 775A.4; (3)
invasion of privacy; (4) aggravation and loss of time; (5) negligent hiring and supervision; and (6)
vicarious liability and joint and several liability. Id. at 9-13.
In considering a motion to dismiss under Rule 12(b)(6), a court must determine whether the
claimant has stated a claim upon which relief may be granted. A motion to dismiss is properly
granted when a complaint provides no “more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
A complaint must contain enough “facts to state a claim to relief that is plausible on its face”and the
factual allegations “must be enough to raise a right to relief above the speculative level.” Id.
(citations omitted). “Once a claim has been stated adequately, it may be supported by showing any
set of facts consistent with the allegations in the complaint.” Id. at 562. Although decided within
an antitrust context, Twombly “expounded the pleading standard for all civil actions.” Ashcroft v.
Iqbal, 556 U.S. 662, 684 (2009). For the purpose of making the dismissal determination, a court
must accept all the well-pleaded allegations of the complaint as true, even if doubtful in fact, and
must construe the allegations in the light most favorable to claimant. Twombly, 550 U.S. at 555;
Alvarado v. KOB-TV, LLC, 493 F.3d 1210, 1215 (10th Cir. 2007); Moffett v. Halliburton Energy
Servs., Inc., 291 F.3d 1227, 1231 (10th Cir. 2002). However, a court need not accept as true those
allegations that are conclusory in nature. Erikson v. Pawnee County Bd. Of County Comm’rs, 263
F.3d 1151, 1154-55 (10th Cir. 2001). “[C]onclusory allegations without supporting factual
averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935
F.2d 1106, 1109-10 (10th Cir. 1991).
Croker asks the Court to dismiss with prejudice the claims against her based on her denial
of the allegations of the complaint. Dkt. # 22. In her motion to dismiss, she makes the following
3. The Defendant has no association with Dennis Bayne
4. The Defendant has never placed any call, business or otherwise to the Plaintiff.
5. The Defendant is not associated with any autodialing system and has never sold
or used an autodialing system.
6. The Defendant has never texted the Plaintiff for either business or personal
7. The Defendant has never used software or employed any other method to obtain
information about the Plaintiff.
Id. at 1. Croker has not attached any evidence to her motion to dismiss, and she has not asked the
Court to treat her motion as a motion for summary judgment.
When ruling on a motion to dismiss under Rule 12(b)(6), the Court must accept the wellpleaded allegations of the complaint as true. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S.
308, 322 (2007). “The Court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence
that the parties might present at trial, but to assess whether plaintiff’s complaint alone is legally
sufficient to state a claim for which relief may be granted.” Sutton v. Utah State Sch. for Deaf and
Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). A defendant’s “mere denial” of the plaintiff’s
allegations has no bearing on the Court’s ruling on a motion to dismiss under Rule 12(b)(6).
Catipovic v. Turley, 2012 WL 2089552 (N.D. Iowa June 8, 2012).
The Court has reviewed Croker’s motion to dismiss and the motion consists only of Croker’s
denial of plaintiff’s allegations. However, the Court must accept the well-pleaded allegations of the
complaint as true, and Croker’s denial of the allegations of the complaint cannot be considered by
the Court when ruling on her motion to dismiss. The complaint includes sufficient allegations to
state a claim against Croker. To state a claim under the TCPA, a plaintiff must allege that “(1) the
defendant called a cellular telephone number; (2) using an automatic dialing system; (3) without the
recipient’s prior express consent.” Meyer v. Portfolio Recovery Associates, LLC, 707 F.3d 1036,
1043 (9th Cir. 2012). Plaintiff alleges that Croker called his cellular phone using an automated
dialing system and that Croker did so without plaintiff’s consent.2 Dkt. # 2, at 6-7. Croker’s denials
are not a sufficient basis to dismiss the well-pleaded claims in the complaint, and her motion to
dismiss should be denied.
IT IS THEREFORE ORDERED that defendant Alicia Croker’s Motion to Dismiss (Dkt.
# 22) is denied. Defendant Alicia Croker shall, therefore, file her answer to the complaint no later
than October 1, 2014.
DATED this 17th day of September, 2014.
The Court focuses on plaintiff’s TCPA claim, because plaintiff alleges that the Court has
federal question jurisdiction over this case and the TCPA claim is the sole federal law claim.
See Dkt. # 2, at 2.
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