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Santiago v. Merriman River Associates, LLC

United States District Court, D. Connecticut

June 1, 2018

MARISSA SANTIAGO, individually and on behalf of all others similarly situated, Plaintiff,
v.
MERRIMAN RIVER ASSOCIATES, LLC, Defendants.

          RULING ON MOTION TO DISMISS

          Victor A. Bolden, United States District Judge

         Marissa 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.

         For the reasons stated below, MRA's motion to dismiss the Amended Complaint, ECF No. 28, is GRANTED in part and DENIED in part.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Ms. 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.

         A. Factual Allegations

         Ms. 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.

         In 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.

         Ms. 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. ¶ 23.

         B. Procedural History

         Ms. 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.

         MRA 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.” Id.

         Instead 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.

         She 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 number.

Id. ¶ 29. She alleges that the class would meet the requirements of Rule 23 of the Federal Rules of Civil Procedure. Id. ¶¶ 32-37.

         MRA now 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.

         Ms. 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, ...


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