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Owens v. Starion Energy, Inc.

United States District Court, D. Connecticut

June 30, 2017

NANCY OWENS, Plaintiff,
v.
STARION ENERGY, INC., Defendant.

          RULING ON MOTION TO DISMISS

          VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE.

         Nancy 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).[1] 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 DENIED.

         I. FACTUAL BACKGROUND

         Ms. 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 ¶ 20.

         According 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.

         Ms. 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).

         II. STANDARD OF REVIEW

         When 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).

         In 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).

         Short 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.

         III. DISCUSSION

         Starion 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.

         A. Failure to State a Claim under Rule 12(b)(6)

         Starion 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 disagrees.

         1. Home-Based Business Number

         Starion 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.

         “The 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).

         In 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.

         Nonetheless, 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 contacts.”).

         Taking 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 number. ...


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