United States District Court, E.D. New York
TODD C. BANK, Individually and on Behalf of All Others Similarly Situated, Plaintiff,
PHILIPS ELECTRONICS NORTH AMERICA CORPORATION, Defendant.
TODD C. BANK, Kew Gardens, New York, Plaintiff Pro Se.
Kenneth B. Danielsen, Esq., Deborah Del Sordo, Esq., AHMUTY, DEMERS & McMANUS, ESQS., New York, NY 10038, Attorneys for Defendant.
MEMORANDUM AND ORDER
JOHN GLEESON, District Judge.
Todd Bank brings this pro se action individually and on behalf of a putative class alleging that defendant Philips Electronics North America Corporation ("Philips") violated provisions of the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq., (the "TCPA") and New York General Business Law ("NYGBL") § 399-p by making or authorizing two calls to Bank's residential telephone number using an automatic-dialing mechanism with a prerecorded message telling the recipient he or she "had been selected to receive a medical-alert system and $3, 000 in grocery-store coupons." Compl. (ECF No. 1) ¶¶ 19-24. The calls alleged in the complaint were made on June 22, 2014, from a caller identified as "GB MARKETING CO, " and on August 20, 2014, from a caller identified as "Tacoma WA." Id. ¶¶ 19-20. Bank claims that Philips is responsible for the calls because the medical-alert system referred to in the calls was the Philips Lifeline System, and the calls were "made by, or on behalf of, or with the authorization of, an authorized dealer of Philips." Id. ¶¶ 23-24. The complaint alleges that these calls were "among thousands of telephone calls" that were identical to the two calls made to Bank. Id. ¶ 27.
Defendant Philips moves to dismiss the complaint for failure to state a claim and for sanctions against Bank under Fed.R.Civ.P. 11. I heard oral argument on March 27, 2015. For the reasons stated below, the defendant's motion to dismiss is granted. The motion for sanctions is denied.
A. Failure to State a Claim
1. The Standard of Review
To survive a motion to dismiss under 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. The plaintiff therefore is obligated to "provide the grounds of his entitlement to relief" with "more than labels and conclusions, " and "a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
2. The Relevant Statutes
Bank alleges that Philips violated §§ 227 (b)(1)(B) and 227(b)(1)(A)(iii) of the TCPA and NYGBL § 399-p(3)(a). See Compl. ¶¶ 11-13, 15-16. Section 227(b)(1)(B) makes it unlawful for any person:
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 exempted by rule or order by the Commission....
47 U.S.C. § 227(b)(1)(B). Section 227(b)(1)(A)(iii) makes it unlawful for any person:
to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice... to any telephone number assigned to a paging service, cellular telephone ...