United States District Court, D. Connecticut
RULING ON MOTION TO DISMISS
A. BOLDEN UNITED STATES DISTRICT JUDGE.
Owens (“Plaintiff”), brings this putative class
action against Starion Energy, Inc. (“Starion
Energy” or “Defendant”), alleging
violations of the “Do Not Call” provisions of the
Telephone Consumer Protection Act (“TCPA”).
Compl., ECF No. 1. Starion Energy has moved to dismiss the
Complaint for failure to state a claim under Rule
12(b)(6). Def. Mot. to Dismiss, ECF No. 23. Starion
Energy also seeks to strike several components of the
Complaint. Id. For the reasons outlined below,
Starion Energy's Motion to Dismiss is
Owens alleges that, in September 2016, Starion Energy called
her home telephone number multiple times to promote their
services. Compl. ¶¶ 14-16. According to Ms. Owens,
her home telephone number was listed on the national
“Do Not Call” registry at the time of those
calls. Id. On September 23, 2016, Ms. Owens
allegedly answered the phone to request that Starion Energy
stop calling her, and she later wrote to Starion Energy to
ask if they had “any evidence of her consent to make
these unwanted calls[.]” Id. at ¶ 19. In
response, Starion Energy allegedly informed Ms. Owens that
her number would be placed on the company's internal
“Do Not Call” registry. Id. at ¶
to Starion Energy, the telephone number that they contacted
was a business telephone number, not a home telephone number.
Def. Mem. in Supp. at 10-11, ECF No. 23-1. While Ms. Owens
does not deny that the number in question functions as a
business number, she explains that it is a home-based
business, thus it is the same as her residential number. Pl.
Mem. in Opp. at 15-17, ECF No. 26.
Owens brings this lawsuit on behalf of all people nationwide
whose telephone numbers were registered on the national Do
Not Call registry and who received unsolicited telephone
calls from Starion Energy up to four years before the filing
of the Complaint. Compl. at ¶ 22. Starion Energy has now
moved to dismiss the Complaint in its entirety under Rule
12(b)(1) and Rule 12(b)(6); in the alternative, Starion
Energy seeks to strike several portions of the Complaint
under Rule 12(f).
STANDARD OF REVIEW
considering a motion to dismiss for failure to state a claim
under Fed R. Civ. P. 12(b)(6), the Court must accept as true
all factual allegations in the complaint and draw all
possible inferences from those allegations in favor of the
plaintiff. See York v. Ass'n of the Bar of the City
of New York, 286 F.3d 122, 125 (2d Cir.), cert.
denied, 537 U.S. 1089 (2002). The proper consideration
is not whether the plaintiff ultimately will prevail, but
whether the plaintiff has stated a claim upon which relief
may be granted such that it should be entitled to offer
evidence to support its claim. See id. (citation
omitted). Courts considering motions to dismiss under Rule
12(b)(6) generally “must limit [their] analysis to the
four corners of the complaint, ” though they may also
consider documents that are “incorporated in the
complaint by reference.” Kermanshah v.
Kermanshah, 580 F.Supp.2d 247, 258 (S.D.N.Y. 2008).
reviewing a complaint under Rule 12(b)(6), the court applies
“a ‘plausibility standard, '” which is
guided by “two working principles.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). First, the
requirement that the Court accept as true the allegations in
a complaint “is inapplicable to legal
conclusions.” Id. “Threadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id.
Second, to survive a motion to dismiss, the complaint must
state a plausible claim for relief. Id. at 679.
Determining whether the complaint states a plausible claim
for relief is “‘a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense.'” Harris v.
Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting
Iqbal, 556 U.S. at 679).
of dismissing a complaint in its entirety, a court may also
“strike from a pleading any insufficient defense or any
redundant, immaterial, impertinent, or scandalous
matter.” Fed.R.Civ.P. 12(f). Resolution of a motion to
strike under this rule is within the discretion of the
district court, and such motions are generally disfavored and
should be infrequently granted. Tucker v. Am. Int'l
Grp., Inc., 936 F.Supp.2d 1, 15-16 (D. Conn. 2013). The
Second Circuit has long held that courts “should not
tamper with the pleadings unless there is a strong reason for
so doing, ” and that a motion to strike under Rule
12(f) should be denied “unless it can be shown that no
evidence in support of the allegation would be
admissible.” Lipsky v. Commonwealth United
Corp., 551 F.2d 887, 893 (2d Cir. 1976). Thus, the party
moving to strike “bears a heavy burden” and
ordinarily must show that “(1) no evidence in support
of the allegations would be admissible; (2) the allegations
have no bearing on the issues in the case; and (3) permitting
the allegations to stand would result in prejudice to the
movant.” Tucker, 936 F.Supp. at 16.
Energy seeks dismissal of Ms. Owens' Complaint in its
entirety. Starion Energy argues that Ms. Owens has failed to
state a claim under Rule 12(b)(6), arguing that: (1) the
number allegedly contacted by Starion Energy was a business
number, not a residential number as required for TCPA
protection; (2) the Complaint lacks the requisite specificity
regarding the alleged telephone calls; (3) Ms. Owens fails to
allege that she is the subscriber who registered the number
on the national “Do Not Call” registry; and (4)
the Complaint does not properly allege the requisite
knowledge and willfulness to state a claim for treble damages
under the TCPA. Def. Mem. in Supp., ECF No. ECF No. 23-1.
Starion Energy also seeks to strike portions of Ms.
Owens' Complaint, including reference to attorneys'
fees and costs, allegations under TCPA § 227(b)(1), and
the proposed definition of the purported class. The Court
examines each of these arguments in turn.
Failure to State a Claim under Rule 12(b)(6)
Energy seeks dismissal of Ms. Owens' Complaint for
failure to state a claim under Rule 12(b)(6). Specifically,
Starion Energy argues that (1) the number allegedly contacted
by Starion Energy was a business number, not a residential
number as required for TCPA protection; (2) the Complaint
lacks the requisite specificity regarding the alleged
telephone calls; (3) Ms. Owens fails to allege that she is
the subscriber who registered the number on the national
“Do Not Call” registry; and (4) the Complaint
does not properly allege the requisite knowledge and
willfulness to state a claim for treble damages under the
TCPA. As discussed in further detail below, the Court
Home-Based Business Number
Energy argues that the telephone number it allegedly
contacted was a business line, not a residential number as
required for TCPA protection. Def. Mem. in Supp. at 10, ECF
No. 23-1. In support of this argument, Starion Energy
requests that the Court take judicial notice of a website
that advertises Ms. Owens' marketing and branding
services and identifies a business phone number at which Ms.
Owens can be reached, which Starion Energy claims is the same
number as the one featured in Ms. Owens' Complaint.
Id. at 11; Halo Branded Solutions Printout, Def. Ex.
A, ECF No. 23-1. Starion Energy claims that, “by virtue
of advertising the telephone number as a business number,
” the phone number allegedly contacted by Starion
Energy does not qualify for TCPA protections. Def. Mem. in
Supp. at 10, ECF No. 23-1. Ms. Owens does not dispute that
the telephone number in question was held out as a business
number; however, she claims that the business is a home-based
business, thus the number was one and the same as her
residential telephone number and is covered by the TCPA. Pl.
Mem. in Opp. at 15, ECF No. 26.
TCPA was enacted to protect the privacy interests of
residential telephone subscribers by placing restrictions on
unsolicited, automated telephone calls to the
home….” Foxhall Realty Law Offices, Inc. v.
Telecommunications Premium Servs., Ltd., 975 F.Supp.
329, 330 (S.D.N.Y. 1997), aff'd, 156 F.3d 432
(2d Cir. 1998) (internal quotations and marks omitted). The
Second Circuit has yet to speak specifically about whether a
home-based business telephone number can be considered
“residential” for purposes of TCPA protection;
however, district courts in this Circuit and elsewhere have
found that whether a telephone number is truly
“residential” is a question of fact that is not
appropriate for resolution at the motion to dismiss stage.
See Bank v. Indep. Energy Grp. LLC, No. 12-CV-1369,
2014 WL 4954618, at *4 (E.D.N.Y. Oct. 2, 2014) (denying
motion to dismiss where residential line may have been held
out as a business line and allowing limited discovery);
Baker v. Certified Payment Processing, L.P., No.
16-CV-03002, 2016 WL 3360464, at *3 (C.D. Ill. June 1, 2016)
(denying defendant's motion to dismiss so that parties
may conduct discovery to determine whether the phone line was
residential or business); Clauss v. Legend Sec.,
Inc., No. 4:13-CV-00381-JAJ, 2014 WL 10007080, at *2
(S.D. Iowa Sept. 8, 2014) (finding that the issue of whether
the subject phone line was residential or business was a
disputed fact even after discovery and that summary judgment
was therefore inappropriate).
Bank v. Independent Energy Group, LLC, the district
court for the Eastern District of New York examined whether a
telephone line that was registered as
“residential” could be considered residential for
TCPA purposes when the plaintiff used that line for business
purposes and held it out to the public as a business line.
Bank, 2014 WL 4954618, at *3. The court concluded
that a telephone line's initial registration as
“residential” was not necessarily sufficient to
ensure TCPA protection if the line is actually held out as a
business line: “A telephone subscriber who registers a
line with the telephone company as a residential line but
then lists the number in the Yellow Pages and other
directories as a business line sacrifices the protections
afforded by the TCPA…. If Defendants are correct about
the ways in which Bank has advertised this number, it would
not qualify as residential under the TCPA.”
Id. at *4.
the court determined that the residential nature of a
telephone line was a question of fact, declining to dismiss
the case on Rule 12(b)(6) grounds and permitting additional
discovery, noting that “the complaint does not allege
the number at issue and this is a motion to dismiss.”
Id. Bank was eventually resolved on summary judgment
in favor of the defendant. See Bank v. Indep. Energy Grp.
LLC, No. 12-CV-1369 JG VMS, 2015 WL 4488070, at *2
(E.D.N.Y. July 23, 2015) (finding that the telephone number
in question was a business line because “Bank provides
the Subject Telephone number on his business card,
professional letterhead for his law practice, and in
pleadings and court filings, and he provides it to clients,
prospective clients, other attorneys, and business
as true all of the factual allegations in the Complaint, as
is required at this stage, see York, 286 F.3d at
125, the Court cannot conclude that Ms. Owens has failed to
state a claim for relief under the TCPA. As Starion Energy
points out in their motion to dismiss filings, the Complaint
does not include Ms. Owens' full phone number, nor does
it allege that the number in question functions primarily as
a business number. Rather, the Complaint exclusively
describes the telephone number in question as Ms. Owen's
“home” or “residential” telephone