Zemp et al v. Sovereign Bank

Filing 15

OPINION AND ORDER: Because Plaintiffs' complaint is sufficient to withstand the motion to dismiss, Defendant's Motion to Dismiss, or in the Alternative, for Summary Judgment is DENIED without prejudice to the right of either party to file a motion for summary judgment after the completion of discovery. (ECF No. 8 .) Because Plaintiffs state their consent to a dismissal of their South Carolina Consumer Protection Code claim without prejudice, Count 1 of Plaintiffs' complaint is hereby dismissed without prejudice. Defendant's Motion for Stay of Deadlines and Entry of Scheduling Order(s) is DENIED as MOOT. (ECF No. 14 .) Signed by Honorable Mary G Lewis on 7/9/2013.(prou, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Sidney Zemp and Madge Zemp,

) Civil Action No.: 4:13-1209-MGL
)
Plaintiffs, )
)
v.
)
OPINION AND ORDER
)
Sovereign Bank, N.A.,
)
)
Defendant. )
__________________________________ )
Before this court is Defendant Sovereign Bank, N.A.’s (“Defendant”) Motion to

Dismiss or, in the alternative, for Summary Judgment (ECF No. 8) filed pursuant to Federal
Rule of Civil Procedure 12(b)(6) and/or 56, and Defendant’s Motion for Stay of Deadlines
and Entry of Scheduling Order(s) (ECF No. 14) filed pursuant to Local Civil Rule 16.00(C).
Having considered the motions and responses filed, the record, the arguments of the
parties, and the applicable law, the court denies Defendant’s Motion to Dismiss (ECF No.
8.) Defendant’s Motion for Stay of Deadlines and Entry of Scheduling Order(s) (ECF No.
14) is rendered moot accordingly.
FACTUAL AND PROCEDURAL BACKGROUND
This matter was removed from the Court of Common Pleas, County of Darlington,
South Carolina on May 3, 2013, by Defendant Sovereign Bank. (ECF No. 1.) In their
complaint, Plaintiffs Sidney Zemp and Madge Zemp (“Plaintiffs”) assert causes of action
pursuant to the South Carolina Consumer Protection Code, S.C. Code Ann. § 37-5-108,
negligent and wilful violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227,
and negligent and reckless training and supervision stemming from Defendant’s alleged
conduct in making unauthorized telephone calls to cellular numbers regarding an alleged

mortgage debt. (ECF No.1-1.) On May 10, 2013, Defendant moved to dismiss, or in the
alternative, for summary judgment, alleging: 1) South Carolina Consumer Protection Code,
S.C. Code Ann. § 37-5-108 is inapplicable to a first mortgage lien and thus, must be
dismissed as a matter of law; 2) Defendant had prior express consent to use the telephone
numbers in question and thus, Plaintiffs fail to state a plausible cause of action under the
Telephone Consumer Protection Act in view of the applicable pleading standards; and 3)
the actions alleged by Plaintiffs fail to state a plausible cause of action for
negligent/reckless training and supervision of employees under the applicable pleading
standards. (ECF No. 8.) Additionally, Defendant presented “extrinsic evidence” for this
court’s review in the event the court desires to convert the motion into one for summary
judgment pursuant to Federal Rule of Civil Procedure 12(d). (ECF No. 8-1 at 5.) Although
Plaintiffs oppose the motion, Plaintiffs state their consent to a dismissal of their South
Carolina Consumer Protection Code claim without prejudice. (ECF No. 11 at 4.)
STANDARD OF REVIEW
Defendant moves to dismiss this case under Rule 12(b)(6) of the Federal Rules of
Civil Procedure on the basis that Plaintiffs’ claims do not satisfy the pleading standards set
forth in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) and Bell Atlantic Corporation v.
Twombly, 550 U.S. 544, 555 (2007).

Alternatively, Defendant moves for summary

judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. “The purpose of a
Rule 12(b)(6) motion is to test the sufficiency of a complaint.”

Edwards v. City of

Goldsboro, 178 F.3d 231, 243 (4th Cir.1999). In considering a motion to dismiss, plaintiffs’
well-pled allegations are taken as true, and the complaint and all reasonable inferences are
liberally construed in the plaintiffs’ favor. Mylan Laboratories, Inc. v. Matkari, 7 F.3d 1130,
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1134 (4th Cir. 1993). A plaintiff is required to allege “more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp.,
550 U.S. at 555. The court may consider only the facts alleged in the complaint, which may
include any documents either attached to or incorporated in the complaint, and matters of
which the court may take judicial notice. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551
U.S. 308, 322 (2007). If, on a motion under Rule 12(b)(6), matters outside the pleadings
are presented to and not excluded by the court, the motion must be treated as one for
summary judgment under Rule 56. Fed.R.Civ.P. 12(d). Further, all parties must be given
a reasonable opportunity to present material that is pertinent to the motion. Id.
DISCUSSION
Plaintiffs consent to the dismissal of their South Carolina Consumer Protection Code
claim. Accordingly, this claim is dismissed without prejudice. As to Plaintiffs’ remaining
claims, after reviewing the record in this case, accepting all well-pleaded allegations in
Plaintiffs’ complaint as true, and drawing all reasonable factual inferences from those facts
in Plaintiffs’ favor, the court finds that Plaintiffs state a claim for relief and hereby denies the
Motion to Dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6). At this
stage of the litigation, it is premature to decide that no relief could be granted under any set
of facts that could be proven consistent with the allegations. The allegations of the
complaint do state a plausible claim for relief under the pleading standards set forth in Iqbal
and Twombly.
This Court notes that pursuant to Rule12(b)(6), it may convert a motion to dismiss
into a motion for summary judgment. See McBurney v. Cuccinelli, 616 F.3d 393, 410 (4th
Cir. 2010). It would, however, be premature to do so at this time prior to Defendant’s
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answer and an opportunity for Plaintiffs to have reasonable discovery on their claims and
the defenses asserted by Defendant. Particularly, this court believes that any summary
ruling should await the development of a more complete factual record surrounding the
nature and scope of Plaintiffs’ consent to receive telephone calls to their cellular
telephones. Thus, this court’s order denying the motion to dismiss is without prejudice to
the right of either party to file a motion for summary judgment after discovery is completed.
CONCLUSION
Because Plaintiffs’ complaint is sufficient to withstand the motion to dismiss,
Defendant’s Motion to Dismiss, or in the Alternative, for Summary Judgment is DENIED
without prejudice to the right of either party to file a motion for summary judgment after the
completion of discovery. (ECF No. 8.) Because Plaintiffs state their consent to a dismissal
of their South Carolina Consumer Protection Code claim without prejudice, Count I of
Plaintiffs’ complaint is hereby dismissed without prejudice. Defendant’s Motion for Stay of
Deadlines and Entry of Scheduling Order(s) is DENIED as MOOT. (ECF No. 14.)
IT IS SO ORDERED.
/s/Mary G. Lewis
United States District Judge

Florence, South Carolina
July 9, 2013

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