United States District Court, D. Connecticut
MARISSA SANTIAGO, individually and on behalf of all others similarly situated, Plaintiff,
MERRIMAN RIVER ASSOCIATES, LLC, Defendants.
RULING ON MOTION TO DISMISS
A. Bolden, United States District Judge
Santiago (“Ms. Santiago”) filed this lawsuit on
behalf of herself and a putative class. She claims that
Merriman River Associates (“MRA”) violated the
Telephone Consumer Protection Act (“TCPA”) when
it called her cellphone and used a pre-recorded artificial
voice message for political polling. MRA now moves to dismiss
the Amended Complaint.
reasons stated below, MRA's motion to dismiss the Amended
Complaint, ECF No. 28, is GRANTED in part
and DENIED in part.
FACTUAL AND PROCEDURAL BACKGROUND
Santiago is a Connecticut resident. Am. Compl. ¶ 5.
Merriman River Associates, LLC (“MRA”), a limited
liability company, has its principle place of business in
Hamden, Connecticut. Id. ¶ 8. MRA allegedly
provides “comprehensive polling services to campaigns
throughout the United States.” Id. ¶ 13.
Santiago alleges that “at all relevant times” for
this lawsuit she subscribed to a wireless telephone number.
Am. Compl. ¶ 6. The number-which ended in
“2845”-was always assigned to a cellphone and not
to a landline. Id. ¶¶ 6-7. She also
alleges that the phone was registered on the National Do Not
Call Registry. Id. ¶ 6.
October 2017, she received the first of three calls she
maintains came from MRA and to which she had not consented.
Id. ¶ 3, 16. Two calls went to voicemail, and
Ms. Santiago claims she received the following message:
Hi, this is Sarah calling from MRG Policy Polling. We're
conducting a short survey about some issues important to
Connecticut. We're sorry we missed you. We'll try
calling you again tomorrow. This same number will come up on
your caller Id. Your opinion is very important, and
we hope that you will participate. Thank you.
Id. ¶ 17. Ms. Santiago claims she answered the
third phone call, and “heard a prerecorded/artificial
voice asking [her] to participate in a poll Defendant was
conducting.” Id. ¶ 18.
Santiago alleges that MRA markets itself as a comprehensive
polling service, specifically offering “[a]utomated
(IVR) phone polling” that “allows for dialing
thousands of simultaneous calls.” Id.
¶¶ 14-15. She alleges that “none of the
[three] calls seemed to have any human involvement or
interactivity” and that she heard only an artificial
voice. Id. ¶ 20. She alleges that
“Defendant made the calls at issue using an artificial
or prerecorded voice and/or an automated telephone dialing
system.” Id. ¶ 21. She also maintains
that that she “is informed and believes” that MRA
called others throughout the United States. Id.
Santiago filed the initial Complaint in this matter on
December 7, 2017. See generally Compl., ECF No. 1.
The Complaint included two causes of action:
“violations of the Telephone Consumer Protection
Act” and “Knowing and/or Willful violation of the
Telephone Consumer Protection Act.” Id.
¶¶ 34-40. The Complaint also included allegations
on behalf of a putative class.
then moved to dismiss the Complaint. Def. Mot. to Dismiss,
ECF No. 15. First, it argued that dismissal was warranted in
its entirety because the Complaint contained no allegation
that the calls went to a number assigned to a cellphone.
Id. at 1. Second, it moved to dismiss the second
count, arguing that the Complaint did not plausibly state a
claim that MRA's behavior was “willful.”
of responding to the motion to dismiss, Ms. Santiago filed an
Amended Complaint. See generally Am. Compl., ECF No.
21. The Amended Complaint included only one cause of action,
but alleged that the phone calls “constitute numerous
and multiple negligent, willful and/or knowing violations of
the TCPA, including but not limited to all of the above-cited
provisions of 45 U.S.C. § 227 et seq. and its
implementing regulations.” Am. Compl. ¶ 39. Ms.
Santiago seeks statutory damages between $500 and $1, 500 per
violation, attorneys' fees, costs, and injunctive relief.
Id. ¶ 40.
also renews her claims on behalf of a putative class. The
Amended Complaint includes the following class definition:
All persons within the United States who received an
artificial voice or prerecorded telephone call from
Defendant, or a caller acting on behalf of Defendant, after
October 16, 2013 to said person's wireless telephone
Id. ¶ 29. She alleges that the class would meet
the requirements of Rule 23 of the Federal Rules of Civil
Procedure. Id. ¶¶ 32-37.
moves to dismiss the Amended Complaint under Rule 12(b)(6) of
the Federal Rules of Civil Procedure. Def. Mot., ECF No. 28.
It argues that the Amended Complaint is procedurally improper
because it combines both negligent and willful violations
into a single count. Def. Mem. in Support (“Def.
Mem.”) at 6, ECF No. 29; Def. Rep. Br. at 4 n.2, ECF
32. Second, MRA argues that Ms. Santiago has failed to
properly allege that any of the violations were knowing or
willful. Def. Mem. at 6-10; Def. Rep. Br. at 2-4. Third, it
moves to “dismiss” any claims for attorneys'
fees, arguing that the TCPA does not allow for the recovery
of fees and costs. Def. Mem. at 10; Def. Rep. Br. at 5.
Finally, MRA moves to “dismiss and/or strike”
parts of the class definition because it argues those claims
are barred by the TCPA's statute of limitations. Def.
Mem. at 10-12.
Santiago disagrees. See Pl. Mem. in Opp. (“Pl.
Mem.”), ECF No. 30. She argues that the Amended
Complaint adequately places MRA on notice of the claims as
required by Rules 8 and 10 of the Federal Rules of Civil
Procedure, and that she has included adequate factual
allegations demonstrating willfulness on the part of MRA.
Id. at 3-7. She argues that attorneys' fees are
appropriate because she would be entitled to recover fees as
part of a common fund if the class is certified. Id.
at 8. Finally, she argues that the class allegations should
not be dismissed in their entirety, ...