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Ready v. Synchrony Bank

United States District Court, D. Maine

April 6, 2018

ANDREW READY, Plaintiff
v.
SYNCHRONY BANK, Defendant

          RECOMMENDED DECISION ON MOTION TO DISMISS

          John H. Rich III United States Magistrate Judge.

         Pursuant 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.

         I. Applicable Legal Standards

         A. Rule 12(b)(1)

         When a 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).

         B. Rule 12(b)(6)

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 level.

         Bell 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).

         In 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).

         II. Factual Background

         The complaint sets forth the following relevant factual allegations.[1]

         The 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.

         The 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.

         On 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. ΒΆΒΆ 12, 20. The defendant did not have the plaintiff's express consent to use an automatic telephone dialing system ...


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