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Jennings v. Continental Service Group, Inc.

United States District Court, W.D. New York

March 7, 2017

THOMAS JENNINGS, individually and on behalf of all others similarly situated, Plaintiff,
CONTINENTAL SERVICE GROUP, INC., doing business as ConServe, and DOES 1-10, INCLUSIVE, Defendants.


          ELIZABETH A. WOLFORD United States District Judge


         Plaintiff Thomas Jennings ("Plaintiff), individually and on behalf of others similarly situated, brings this action against Defendants Continental Service Group, Inc. ("Defendant") and Does 1-10, alleging violations of the Telephone Consumer Protection Act, 47 U.S.C. §§ 227 et seq. ("TCPA") and the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. ("FDCPA"). (Dkt. 8). Presently before the Court is Defendant's motion for judgment on the pleadings. (Dkt. 21). For the reasons stated below, Defendant's motion is denied, except to the extent that Plaintiffs FDCPA claim is dismissed without prejudice and Plaintiff is granted leave to replead.


         Defendant is a "debt collection agency specializing in the collection of student loan debts."[1] (Dkt. 8-1 at ¶ 10). Defendant "placed debt collection calls to Plaintiff at a harassing and unfair rate" (id. at ¶ 13)-up to four calls a day. (Id. at ¶ 19). The calls were made to Plaintiffs cellular telephone using an "automatic dialing system." (Id. at ¶ 12). The calls "were placed in an attempt to collect an outstanding obligation allegedly owed by Plaintiff to a third-party creditor. (Id. at ¶ 13). The calls left a message for "Tom Jennings, " using an artificially reproduced voice employing text-to-voice technology. (Id. at ¶ 14). Defendant's calls were not placed for emergency purposes, nor did Defendant "have express consent to place calls using an artificial or prerecorded voice to Plaintiffs cellular telephone." (Id. at ¶¶ 16, 18). Plaintiff alleges later in the amended complaint that Defendant did not have "prior written express consent" to make the calls. (Id. at ¶¶31, 39).


         I. Standard of Review

         Judgment on the pleadings may be granted under Fed.R.Civ.P. 12(c) "where material facts are undisputed and where a judgment on the merits is possible merely by considering the contents of the pleadings." Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988). "In deciding a Rule 12(c) motion, we apply the same standard as that applicable to a motion under Rule 12(b)(6), accepting the allegations contained in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party." Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999).

         "A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the party's claim for relief." Zucco v. Auto Zone, Inc., 800 F.Supp.2d 473, 475 (W.D.N.Y. 2011). A court should consider the motion "accepting all factual allegations in the complaint and drawing all reasonable inferences in the plaintiffs favor." Ruotolo v. N.Y.C., 514 F.3d 184, 188 (2d Cir. 2008) (quoting ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)). To withstand dismissal, a plaintiff must set forth "enough facts to state a claim to relief that is plausible on its face." BellAtl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

         "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs 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." Id. at 555 (citations omitted). Thus, "at a bare minimum, the operative standard requires the plaintiff to provide the grounds upon which his claim rests through factual allegations sufficient to raise a right to relief above the speculative level." Goldstein v. Pataki, 516 F.3d 50, 56-57 (2d Cir. 2008) (citations omitted).

         II. Plaintiffs TCPA Claims

         Defendant argues that Plaintiff fails to state a claim under the TCPA. (Dkt. 21-1 at 4-6).[2] The TCPA makes it unlawful for any person in the United States to make a call "using any automatic telephone dialing system or an artificial or prerecorded voice ... to any telephone number assigned to a. . . cellular telephone service, " unless it is for emergency purposes or with "prior express consent." 47 U.S.C. § 227(b)(1)(A). "The [TCPA] creates a private right of action, providing for statutory damages in the amount of $500 for each violation as well as injunctive relief against future violations." Physicians Healthsource, Inc. v. Boehringer Ingelheim Pharm., Inc., 847 F.3d 92, 94-95 (2d Cir. 2017). To state a claim under the TCPA, a plaintiff must allege that: "(1) a call was placed to a cell or wireless phone; (2) by the use of any automatic dialing system [and/or leaving an artificial or prerecorded message] and (3) without prior consent of the recipient." See Echevvaria v. Diversified Consultants, Inc., No. 13 Civ. 4980(LAK)(AJP), 2014 WL 929275, at *4 (S.D.N.Y. Feb. 28, 2014) (citation omitted); see, e.g., Pugliese v. Prof I Recovery Serv., Inc., No. 09-12262, 2010 WL 2632562, at *7 (E.D.Mich. June 29, 2010).

         Here, Plaintiff has stated a claim. The amended complaint alleges that Defendant made calls to Plaintiffs cell phone using "a blended pre-recorded and artificial message." (Dkt. 8-1 at ¶¶11-14)- Plaintiff further alleges that the calls were not for emergency purposes, nor did Plaintiff provide "express consent" for Defendant to make calls to his cell phone using an artificial or pre-recorded voice. (Id. at ¶¶ 16, 18). Plaintiffs allegations are sufficient to raise the specter of relief above the speculative level. Thus, Plaintiff has sufficiently stated a claim under the TCPA.

         According to Defendant, the TCPA allows automated phone calls for debt collection where there is prior consent to such calls. (Dkt. 21-1 at 5). Written consent is not required; oral consent can be sufficient to allow for such calls. (Id.). Defendant contends that because Plaintiff alleged in one part of the amended complaint that no "prior ...

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