Opinion
Case No: 8:21-cv-761-MSS-TGW
2021-08-23
Ronda KLASSEN, Plaintiff, v. PROTECT MY CAR ADMIN SERVICES, INC., Defendant.
Jacob U. Ginsburg, Kimmel & Silverman, Ambler, PA, Amy Lynn Bennecoff Ginsburg, Ginsburg Law Group, P.C., Ambler, PA, Megan Leigh Lazenby, Lazenby Law, LLC, Lakeland, FL, for Plaintiff. Roy Taub, Greenspoon Marder, PA, Fort Lauderdale, FL, for Defendant.
Jacob U. Ginsburg, Kimmel & Silverman, Ambler, PA, Amy Lynn Bennecoff Ginsburg, Ginsburg Law Group, P.C., Ambler, PA, Megan Leigh Lazenby, Lazenby Law, LLC, Lakeland, FL, for Plaintiff.
Roy Taub, Greenspoon Marder, PA, Fort Lauderdale, FL, for Defendant.
ORDER
MARY S. SCRIVEN, UNITED STATES DISTRICT JUDGE
THIS CAUSE comes before the Court for consideration of Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint, (Dkt. 16), and Plaintiff's response in opposition thereto. (Dkt. 18) Upon consideration of all relevant filings, case law, and being otherwise fully advised, the Court GRANTS IN PART and DENIES IN PART Defendant's Motion to Dismiss.
I. BACKGROUND
Ronda Klassen, a resident of Tampa, Florida, brings this action alleging that Protect My Car Admin Services, Inc. called her cell phone at least five times in March and April 2020. (Dkt. 15 at ¶¶ 5, 15-16) Protect My Car allegedly made these calls "for solicitation purposes" and without Klassen's consent. (Id. at ¶¶ 15-16) Klassen alleges that the cell phone number Protect My Car called has been on the Do Not Call Registry since May 2007. (Id. at ¶ 13) Klassen further alleges that Protect My Car used an automatic telephone dialing system ("ATDS") to place the calls. (Id. at ¶ 28)
Klassen alleges that the calls violated two provisions of the Telephone Consumer Protection Act ("TCPA"): (i) 47 U.S.C. § 227(b), which prohibits using an ATDS to call a cell phone without the consent of the called party, and (ii) 47 U.S.C. § 227(c), which forbids telephone solicitations to people who list their phone numbers on the Do Not Call Registry. (Dkt. 15 at ¶¶ 34-49)
Protect My Car moved to dismiss the Complaint, contending that (i) Klassen "fails to plausibly state who called her [ ] in violation of the TCPA," and (ii) Klassen does not sufficiently allege that Protect My Car used an ATDS to make the offending calls. (Dkt. 16) In her response to the motion to dismiss, Klassen abandoned her Section 227(b) claim and indicated that she would "proceed with the [ Section] 227(c) claim only." (Dkt. 18 at 3)
II. LEGAL STANDARD
The threshold for surviving a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is a low one. Quality Foods de Centro Am., S.A. v. Latin Am. Agribusiness Dev. Corp., S.A., et al., 711 F.2d 989, 995 (11th Cir. 1983). A plaintiff must plead only enough facts to state a claim to relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1968-69, 167 L.Ed.2d 929 (2007) (abrogating the "no set of facts" standard for evaluating a motion to dismiss established in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) ). Although a complaint challenged by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff is still obligated to provide the "grounds" for his entitlement to relief, and "a formulaic recitation of the elements of a cause of action will not do." Berry v. Budget Rent A Car Sys., Inc., 497 F. Supp. 2d 1361, 1364 (S.D. Fla. 2007) (quoting Twombly, 127 S. Ct. at 1964-65 ). In evaluating the sufficiency of a complaint in light of a motion to dismiss, the well pleaded facts must be accepted as true and construed in the light most favorable to the plaintiff. Quality Foods, 711 F.2d at 994-95. However, the court should not assume that the plaintiff can prove facts that were not alleged. Id. Thus, dismissal is warranted if, assuming the truth of the factual allegations of the plaintiff's complaint, there is a dispositive legal issue that precludes relief. Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
III. DISCUSSION
Because Klassen abandoned her Section 227(b) claim in response to the motion to dismiss, that claim is dismissed. See Pierce v. Clayton Cty., No. 1:16-CV-779-ODE, 2016 WL 10537013, at *4 (N.D. Ga. Oct. 11, 2016) (granting motion to dismiss claim that plaintiffs "abandoned ... in their Brief in Opposition to Defendants’ Motion to Dismiss"). The sole remaining claim alleges that Protect My Car violated Section 227(c) of the TCPA by calling Klassen at a number listed on the Do Not Call Registry. (Dkt. 15 at ¶¶ 43-49) That claim survives the motion to dismiss.
Section 227(c) "creates a private right of action for any ‘person who has received more than one telephone call within any 12-month period by or on behalf of the same entity in violation of the regulations prescribed under’ the TCPA." Becker v. Pro Custom Solar LLC, No. 219CV535FTM29NPM, 2020 WL 474647, at *5 (M.D. Fla. Jan. 29, 2020) (quoting 47 U.S.C. § 227(c)(5) ). The Federal Communications Commission has "promulgated regulations creating a national do-not-call list and requiring telemarketers to maintain their own internal do-not-call lists." Cordoba v. DIRECTV, LLC, 942 F.3d 1259, 1265 (11th Cir. 2019). "The National Do Not Call Registry is maintained by the federal government, and telemarketers are prohibited from soliciting residential telephone subscribers who have registered their numbers on the list." Id. (citing 47 C.F.R. § 64.1200(c)(2) ). "This prohibition also applies ‘to any person or entity making telephone solicitations or telemarketing calls to wireless telephone numbers.’ " Becker, 2020 WL 474647, at *6 (quoting 47 C.F.R. § 64.1200(e) ). Calls that "violat[e] the do-not-call requirements" "need not be automated to violate the regulations." Somogyi v. Freedom Mortg. Corp., No. CV 17-6546 (JBS/JS), 2018 WL 3656158, at *4 (D.N.J. Aug. 2, 2018) ; see also Lauri A. Mazzuchetti & Robert I. Steiner, 9 Business and Commercial Litigation in Federal Courts § 96:5 (4th ed. 2020) ("Under the TCPA and its regulations, telemarketers generally are prohibited from contacting consumers who place their phone numbers on the National Do Not Call Registry (even without using autodialers or prerecorded messages) ....").
Klassen alleges that she listed her cell phone number on the Do Not Call Registry in May 2007. (Dkt. 15 at ¶ 13) Almost thirteen years later, in March and April 2020, Protect My Car allegedly called that number at least five times "for solicitation purposes." (Id. at ¶¶ 15-16) These allegations are sufficient to plead a violation of Section 227(c). See Nece v. Quicken Loans, Inc., No. 8:16-CV-2605-T-23TBM, 2017 WL 2865047, at *1 (M.D. Fla. Jan. 3, 2017) (holding that plaintiff "state[d] a claim for relief" under Section 227(c) based on the allegation that she "listed her number on the do-not-call registry, but [defendant] called [her] several times within a year to solicit business"). This is true regardless of whether Klassen adequately alleges that Protect My Car made the calls using an ATDS. See Rosenberg v. LoanDepot.com LLC, 435 F. Supp. 3d 308, 317 (D. Mass. 2020) (noting that decisions as to "what constitutes an ATDS will not affect plaintiff's claim that defendants have also violated the Do-Not-Call provision of the TCPA").
Protect My Car argues that Klassen cannot state a TCPA claim because she fails to identify "who called her [ ] in violation of the TCPA." (Dkt. 16 at 5) This argument lacks merit. Klassen alleges that "Defendant repeatedly called [her] on her cellular telephone number on a repetitive and continuous basis for solicitation purposes." (Dkt. 15 at ¶ 15) Protect My Car is the Defendant. Nothing more is required to plausibly allege that Protect My Car made the offending calls. Protect My Car responds that Klassen creates "confusion" by making the boilerplate allegation that Protect My Car "acted through its agents, employees, officers, members, directors, heirs, successors, assigns, principals, trustees, sureties, subrogees, representatives, and/or insurers when placing calls to [Klassen]." (Id. at ¶ 9; Dkt. 16 at 6) But Protect My Car cites no authority suggesting that this allegation requires dismissal of the TCPA claim. The decision on which Protect My Car principally relies is inapposite, as that case involved a complaint that "lump[ed] together" seven different defendants without making clear "who made the [offending] calls." Hirsch v. Lyndon S. Ins. Co., No. 3:17-CV-1215-J-39JBT, 2019 WL 5110622, at *4 (M.D. Fla. June 7, 2019), adopted by 2019 WL 8370863 (M.D. Fla. Aug. 6, 2019), aff'd, 805 F. App'x 987 (11th Cir. 2020).
IV. CONCLUSION
Upon consideration of the foregoing, it is hereby ORDERED as follows:
1. Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint, (Dkt. 16), is GRANTED IN PART and DENIED IN PART .
a. Count I of the Second Amended Complaint is DISMISSED .
b. Count II of the Second Amended Complaint SURVIVES .
2. Defendant shall file an answer to the Second Amended Complaint within fourteen (14) days of the date of this Order.
DONE and ORDERED in Tampa, Florida, this 23rd day of August 2021.