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Todd C. Bank v. Independence Energy Group LLC

United States District Court, E.D. New York

October 2, 2014

TODD C. BANK, Plaintiff,
v.
INDEPENDENCE ENERGY GROUP LLC and INDEPENDENT ENERGY ALLIANCE LLC, Defendants.

TODD C. BANK, Kew Gardens, NY, Pro Se Plaintiff.

Aurora Parrilla, SEDGWICK LLP, Newark, NJ, Attorneys for Defendants.

MEMORANDUM AND ORDER

JOHN GLEESON, District Judge.

Todd Bank, proceeding pro se, brings this purported class action alleging that the Defendants violated the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227(b)(1)(B), by calling his residential telephone line without his consent using an artificial or prerecorded voice that delivered a message advertising goods or services. Defendants have moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6), on the ground that the telephone line Bank alleges the Defendants called does not qualify as a residential telephone line for the purposes of the TCPA and thus is not subject to the protections offered by § 227(b)(1)(B). Because I do not have sufficient evidence before me to determine whether the telephone line at issue is "residential" for purposes of § 227(b)(1)(B), Defendants' motion is denied.

BACKGROUND

Bank alleges the following facts, which I accept as true for the purposes of deciding this motion. See Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009).

On or about January 17, 2012, Defendants placed a call to Bank's residential telephone line using an artificial or prerecorded voice that advertised electricity-related services provided by the Defendants. Compl. ¶¶ 8-9, Mar. 19, 2012, ECF No. 1. Bank alleges that in the four years preceding the filing of the action, Defendants placed at least 10, 000 such calls to residential phone lines without the subscribers' consent. Id. ¶¶ 10, 16.

Bank filed the complaint on March 19, 2012. Defendants moved to dismiss the complaint on May 23, 2014. On August 26, 2014, the case was reassigned to me from Judge William Kuntz.

DISCUSSION

A. The Standard of Review

To survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint must allege sufficient facts to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bigio v. Coca-Cola Co., 675 F.3d 163, 173 (2d Cir. 2012). In making this determination, a court should assume all well-pleaded allegations in the complaint to be true "and then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at 679; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) ("Factual allegations must be enough to raise a right to relief above a speculative level... on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." (citation omitted)). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678.

In deciding a motion to dismiss, a court considers only "the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the pleadings and matters of which judicial notice may be taken...." Samuels v. Air Transp. Local 504, 992 F.2d 12, 15 (2d Cir. 1993) (citation omitted). Legal questions of statutory interpretation may also properly be addressed on a motion to dismiss. See F.R. v. Bd. of Educ., 67 F.Supp.2d 142, 145 (E.D.N.Y. 1999).

B. Analysis

The TCPA, among other things, makes it unlawful "to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is ...


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