United States District Court, Southern District of Alabama, Southern Division
WILLIAM H. STEELE CHIEF, UNITED STATES DISTRICT JUDGE.
This matter is before the Court on the defendant’s motion to dismiss the second amended complaint or, in the alternative, to strike the second amended complaint or the class allegations. (Doc. 46). The parties have filed briefs in support of their respective positions, (Docs. 47, 51, 52), and the motion is ripe for resolution. After careful consideration, the Court concludes that the motion to dismiss is due to be denied and that the alternative motion to strike is due to be granted in part and denied in part.
According to the second amended complaint, (Doc. 44), the plaintiff received a number of pre-recorded telephone messages from the defendant. Most of them were substantively identical to the following sample:
Hello, this is IP Casino, Resort and Spa calling to invite you to enjoy 2 free tickets to see the Kenny Wayne Shepherd Band. If you wish to opt-out of future calls, please dial 877-388-5999 and mention the opt out number 5822. Jason Bennett, join us and enjoy 2 free tickets to see the Kenny Wayne Shepherd Band on Saturday, July 5th. Tickets are limited so reserve your tickets today. To take advantage of this great offer now, please call 1-888-946-2847 x 5152 and have your BConnected card ready to reserve your ticket, or visit BConnected online to view all of your offers. Thank you and we look forward to your visit here at IP Casino, Resort and Spa.
(Id. at 5). Count One alleges that these calls violated the Telephone Consumer Protection Act (“the Act”), and Count Two alleges the violations were knowing and/or willful so as to trigger heightened penalties under the Act. (Id. at 10-11). The second amended complaint also seeks certification of a class action.
The defendant argues that its calls did not violate the Act. Should this argument fail, the defendant asks that the second amended complaint be stricken because it differs from the pleading which the plaintiff received permission to file. Should that argument fail, the defendant requests the Court to dismiss or strike the class allegations.
I. Motion to Dismiss.
The motion to dismiss is brought pursuant to Rule 12(b)(6). (Doc. 46).“A defendant bears at least the initial burden of demonstrating that it is entitled to dismissal under Rule 12(b)(6).” Gailes v. Marengo County Sheriff’s Department, 916 F.Supp.2d 1238 (S.D. Ala. 2013); accord Smith v. Seaport Marine, Inc., 919 F.Supp.2d 11267, 1275 n.9 (S.D. Ala. 2013).
Although the defendant denies that the second amended complaint satisfies Bell Atlantic Corp. v. Twombly, 550 U.S. 444 (2007), (Doc. 47 at 2-3), it does not present a genuine Twombly argument. The defendant does not argue, as under Twombly, that the second amended complaint is nominally consistent with liability but that the plaintiff should have pleaded additional facts in order to move potential liability from the merely possible to the plausible. 550 U.S. at 557, 570. Instead, the defendant argues that the facts the plaintiff has pleaded are inconsistent with liability under the Act. This argument implicates the principle that “[d]ismissal is appropriate when, on the basis of a dispositive issue of law, no construction of the factual allegations will support the cause of action.” D.P. ex rel. E.P. v. School Board, 483 F.3d 725, 728-29 (11th Cir. 2007) (internal quotes omitted).
The parties agree that Congress, through the Act, delegated much authority for its implementation to the Federal Communications Commission (“FCC”). They agree that the FCC’s implementing regulations, as relevant here, prohibit covered entities from “[i]nitiat[ing], or caus[ing] to be initiated, any telephone call that includes or introduces an advertisement or constitutes telemarketing, using an automatic telephone dialing system or an artificial or prerecorded voice, … other than a call made with the prior express written consent of the called party.” 47 C.F.R. § 64.1200(a)(2). And they agree, at least for purposes of this motion, that the defendant is a covered entity, that the calls at issue utilized a prerecorded voice, and that the plaintiff had not previously given express written consent to receive such calls. The question is whether the defendant has carried its burden of showing, as a matter of law, that the calls constituted neither “telemarketing” nor “advertisement.”
The FCC defines “advertisement” as “any material advertising the commercial availability or quality of any property, goods, or services.” 47 C.F.R. § 64.1200(f)(1). The FCC defines “telemarketing” as “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.” Id. § 64.1200(f)(12).
The defendant fails to address in any fashion the express allegation of the second amended complaint that the calls meet the FCC’s definition of “advertisement.” The defendant has therefore failed to carry its initial ...