United States District Court, D. Maine
RECOMMENDED DECISION ON MOTION TO DISMISS
H. Rich III United States Magistrate Judge.
to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6),
the defendant, Synchrony Bank, moves to dismiss the
plaintiff's complaint alleging violations of the
Telephone Consumer Protection Act (“TCPA”), 47
U.S.C. § 227, for lack of standing and failure to state
a claim upon which relief can be granted. See
Memorandum of Law in Support of Defendant's Motion To
Dismiss (“Motion”), attached to Notice of Motion
To Dismiss (ECF No. 11), at 1; Complaint (ECF No. 1)
¶¶ 27-28. For the reasons that follow, I recommend
that the Motion be denied.
Applicable Legal Standards
defendant moves to dismiss pursuant to Rule 12(b)(1), the
plaintiff bears the burden of demonstrating that the court
has jurisdiction. Aversa v. United States, 99 F.3d
1200, 1209 (1st Cir. 1996). The moving party may use
affidavits and other matter to support the motion, while the
plaintiff may establish the existence of subject matter
jurisdiction through extrapleading material. 5B Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure
§ 1350, at 159-60 (3d ed. 2004); see also
Aversa, 99 F.3d at 1210; Hawes v. Club Ecuestre el
Comandante, 598 F.2d 698, 699 (1st Cir. 1979) (question
of jurisdiction decided on basis of answers to
interrogatories, deposition statements, and an affidavit).
The Supreme Court has stated:
While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a
plaintiff's obligation to provide the grounds of his
entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do. Factual allegations must be
enough to raise a right to relief above the speculative
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citations and internal punctuation omitted). This standard
requires the pleading of “only enough facts to state a
claim to relief that is plausible on its face.”
Id. at 570. “A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
ruling on a motion to dismiss under Rule 12(b)(6), a court
assumes the truth of all of the well-pleaded facts in the
complaint and draws all reasonable inferences in favor of the
plaintiff. Román-Oliveras v. Puerto Rico Elec.
Power Auth., 655 F.3d 43, 45 (1st Cir. 2011).
Ordinarily, in weighing a Rule 12(b)(6) motion, “a
court may not consider any documents that are outside of the
complaint, or not expressly incorporated therein, unless the
motion is converted into one for summary judgment.”
Alternative Energy, Inc. v. St. Paul Fire & Marine
Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001). “There
is, however, a narrow exception for documents the
authenticity of which are not disputed by the parties; for
official public records; for documents central to
plaintiffs' claim; or for documents sufficiently referred
to in the complaint.” Id. (citation and
internal quotation marks omitted).
complaint sets forth the following relevant factual
plaintiff resides in Limerick Maine, and the defendant is a
business entity headquartered in Draper, Utah. Complaint
¶¶ 4-5. In about July 2017, the plaintiff began
receiving phone calls from the defendant on his cellular
telephone (“cell phone”). Id. ¶ 7.
These calls were not for emergency purposes. Id.
¶ 9. They were made in connection with a credit card
account. Id. ¶ 10.
defendant called the plaintiff's cell phone on
consecutive days, at least twice per day, including mornings,
nights, and weekends. Id. ¶ 11. On or about
July 5, 2017, the plaintiff spoke with the defendant and
instructed it to stop calling his cell phone. Id.
¶ 13. The defendant continued to place calls to the
plaintiff's cell phone on consecutive days, at least
twice per day, including mornings, nights, and weekends.
Id. ¶¶ 14-15. On or about August 10, 2017,
the plaintiff spoke with the defendant and again instructed
it to stop calling his cell phone. Id. ¶ 16.
The defendant continued to place calls to the plaintiff's
cell phone on consecutive days, at least twice per day,
including mornings, nights, and weekends. Id.
¶¶ 17-18. The plaintiff estimates that the
defendant called his cell phone at least 324 times.
Id. ¶ 19.
information and belief, based on the frequency, number,
nature, and character of the calls, the defendant placed them
using an automatic telephone dialing system. Id.
¶¶ 12, 20. The defendant did not have the
plaintiff's express consent to use an automatic telephone
dialing system ...