Roy v. Dell Financial Services
Filing
20
MEMORANDUM Signed by Honorable A. Richard Caputo on 7/12/13. (jam)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DARREN ROY,
CIVIL ACTION NO. 3:13-CV-738
Plaintiff,
(JUDGE CAPUTO)
v.
DELL FINANCIAL SERVICES, LLC,
Defendant.
MEMORANDUM
Presently before the Court is a Motion to Dismiss (Doc. 6) filed by Defendant Dell
Financial Services, LLC (“DFS”). This action stems from phone calls made by DFS to
Plaintiff Darren Roy’s “1-800" business number to collect a consumer debt he incurred. Roy
claims that DFS has violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C.
§ 227; the Pennsylvania Fair Credit Extension Uniformity Act (“FCEUA”), 73 P.S. §§ 2270.1,
et seq.; and his state law right to privacy by intrusion upon seclusion. (Doc. 1.) DFS moves
to dismiss Roy’s TCPA claim for failure to state a claim and his state law claims for lack of
subject matter jurisdiction. (Doc. 6.) For the reasons below, DFS’s motion will be granted.
BACKGROUND
I. Factual Allegations
Roy alleges the following in his Complaint (Doc. 1):
Since September 2010, DFS, a credit company,1 has called Roy on a repetitive and
continuous basis, as often as ten times per day, in its attempt to collect a consumer debt
1
DFS is a Texas limited liability company and a wholly owned subsidiary of Dell Inc.
(Doc. 7 at 1.)
from him. (Id. at ¶¶ 13, 15, 17.) The debt stemmed from Roy’s purchase of computers that
were primarily used for personal purposes. (Id. at ¶ 14.) DFS, using an automatic
telephone dialing system and automatic or pre-recorded messages, has called Roy over
1,000 times at his “1-800" work telephone number without his consent.2 (Id. at ¶¶ 18–20.)
Roy owns his own business and uses the “1-800" number as part of his business. (Id. at
¶ 21.) He is charged a fee whenever a call is made to the “1-800" number and has paid
hundreds of dollars in fees due to DFS’s calls. (Id. at ¶¶ 22–23.) Because Roy has neither
consented to DFS calling him on his “1-800" number nor given the number to DFS as a
means of contacting him, he believes that DFS obtained the number through “skip tracing.”
(Doc. 1 at ¶¶ 24–26.)
Roy has answered DFS’s calls on numerous occasions and told DFS to refrain from
calling him at his “1-800" number. (Id. at ¶ 27.) He has also called DFS and instructed
them to stop calling him at his “1-800" number.” (Id. at ¶ 28.) Although Roy, through his
counsel, sent DFS cease and desist letters via certified mail in October 2011, January 2012,
and January 2013, DFS has continued to call him on his “1-800" number. (Id. at ¶¶ 30–40.)
By repeatedly calling Roy’s “1-800" number without his consent, DFS has violated
the TCPA, FCEUA, and his state law right to privacy by intrusion upon seclusion. (Doc. 1.)
II. Procedural History
Roy instituted this action by filing his Complaint on March 21, 2013. (Doc. 1.) DFS
moved to dismiss the Complaint on May 21, 2013. (Doc. 6.) The motion has been fully
briefed and is ripe for disposition.
2
Roy asserts that DFS has called him on his “1-800" number at least eighty-five more
times between March 30, 2013 and June 24, 2013. (Doc. 11 at 4.)
2
LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint,
in whole or in part, for failure to state a claim upon which relief can be granted. See
Fed. R. Civ. P. 12(b)(6). When considering a Rule 12(b)(6) motion, the Court's role is
limited to determining if a plaintiff is entitled to offer evidence in support of their claims.
See Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000). The Court does
not consider whether a plaintiff will ultimately prevail. See id. A defendant bears the
burden of establishing that a plaintiff's complaint fails to state a claim. See Gould Elecs.
v. United States, 220 F.3d 169, 178 (3d Cir. 2000).
“A pleading that states a claim for relief must contain . . . a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a).
The statement required by Rule 8(a)(2) must “‘give the defendant fair notice of what the .
. . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93
(2007) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Detailed factual allegations are not required. Twombly, 550 U.S. at 555. However, mere
conclusory statements will not do; “a complaint must do more than allege the plaintiff's
entitlement to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).
Instead, a complaint must “show” this entitlement by alleging sufficient facts. Id. “While
legal conclusions can provide the framework of a complaint, they must be supported by
factual allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). As such, “[t]he
touchstone of the pleading standard is plausability.” Bistrian v. Levi, 696 F.3d 352, 365
(3d Cir. 2012).
3
The inquiry at the motion to dismiss stage is “normally broken into three parts: (1)
identifying the elements of the claim, (2) reviewing the complaint to strike conclusory
allegations, and then (3) looking at the well-pleaded components of the complaint and
evaluating whether all of the elements identified in part one of the inquiry are sufficiently
alleged.” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
Dismissal is appropriate only if, accepting as true all the facts alleged in the
complaint, a plaintiff has not pleaded “enough facts to state a claim to relief that is
plausible on its face,” Twombly, 550 U.S. at 570, meaning enough factual allegations “‘to
raise a reasonable expectation that discovery will reveal evidence of’” each necessary
element. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting
Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 677. “When there are well-pleaded factual allegations, a
court should assume their veracity and then determine whether they plausibly give rise
to an entitlement to relief.” Id. at 679.
In deciding a motion to dismiss, the Court should consider the allegations in the
complaint, exhibits attached to the complaint, and matters of public record. See Pension
Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
The Court may also consider “undisputedly authentic” documents when the plaintiff's
claims are based on the documents and the defendant has attached copies of the
documents to the motion to dismiss. Id. The Court need not assume the plaintiff can
prove facts that were not alleged in the complaint, see City of Pittsburgh v. W. Penn
4
Power Co., 147 F.3d 256, 263 & n.13 (3d Cir. 1998), or credit a complaint's “‘bald
assertions’” or “‘legal conclusions.’” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906
(3d Cir. 1997) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429–30
(3d Cir. 1997)).
ANALYSIS
I. TCPA Claim – Count I
The TCPA was “[e]nacted in 1991 as part of the Federal Communications Act” to
“deal with an increasingly common nuisance—telemarketing.” ErieNet, Inc. v. Velocity
Net, Inc., 156 F.3d 513, 514 (3d Cir. 1998). Roy claims that DFS’s unauthorized and
repeated calls to his “1-800" number violate the TCPA, which, in pertinent part, states:
It shall be unlawful for any person within the United States, or any person
outside the United States if the recipient is within the United States, to
make any call (other than a call made for emergency purposes or made
with the prior express content of the called party) using any automatic
telephone dialing system or an artificial or prerecorded voice to any
telephone number assigned to a paging service, cellular phone service,
specialized mobile radio service, or other radio common carrier service, or
any service for which the called party is charged for the call.
47 U.S.C. § 227(b)(1)(A)(iii).3 Roy alleges that DFS has called his “1-800" number using
an automatic telephone dialing system or pre-recorded messages over 1,000 times
without his consent since September 2010. (Doc. 1 at ¶¶ 15, 18–20, 24–25.) He also
alleges that he is charged a fee any time a call is made to his “1-800" number. (Id. at ¶
22.) Roy further alleges that these calls were an attempt to collect consumer debt from
him which he incurred by purchasing computers that were primarily used for personal
3
Roy has specified in his brief in opposition to DFS’s motion to dismiss that
§ 227(b)(1)(A)(iii) is the provision applicable to his TCPA claim. (Doc. 9 at 6.)
5
purposes. (Id. at ¶¶ 13–14.) However, “the FCC has determined that all debt-collection
circumstances are excluded from the TCPA’s coverage.” Meadows v. Franklin
Collection Serv., Inc., 414 F. App’x 230, 235 (11th Cir. 2011); see also Gager v. Dell Fin.
Serv., LLC, No. 11–CV–2115, 2012 WL 1942079, at *6 (M.D. Pa. May 29, 2012) (“The
FCC has ‘unequivocally stated’ that ‘calls solely for the purpose of debt collection are not
telephone solicitations and do not constitute telemarketing’ and ‘calls regarding debt
collection . . . are not subject to the TCPA’s separate restrictions on ‘telephone
solicitations.’”) (quoting Meadows, 414 F. App’x at 236). Accordingly, Roy’s TCPA claim
will be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim.
In addition, Roy’s request to file an amended complaint will be denied. Although
leave to amend should be “freely” granted “when justice so requires,” Fed. R. Civ. P.
15(a)(2), denial of leave to amend is appropriate where amendment would be futile.
See, e.g., Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000). “‘Futility’ means that the
complaint, as amended, would fail to state a claim upon which relief could be granted.”
Id. (citing In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997)).
Here, as an amendment to the Complaint would not alter the fact that Roy cannot state
a claim upon which relief could be granted under the TCPA, amendment would be futile.
Roy’s TCPA claim will therefore be dismissed with prejudice.
II. State Law Claims – Counts II and III
Roy’s remaining claims are his state law FCEUA and intrusion upon seclusion
claims. District courts have supplemental jurisdiction “over all other claims that are so
related to claims in the action within such original jurisdiction that they form part of the
same case or controversy under Article III of the United States Constitution.” 28 U.S.C.
6
§ 1367(a). A district court may refuse to exercise such jurisdiction where, as in the
instant case, it “has dismissed all claims over which it has original jurisdiction.” 28
U.S.C. § 1367(c)(3). In fact, “where the claim over which the district court has original
jurisdiction is dismissed before trial, the district court must decline to decide the pendent
state claims unless considerations of judicial economy, convenience, and fairness to the
parties provide an affirmative justification for doing so.” Borough of W. Mifflin v.
Lancaster, 45 F.3d 780, 788 (3d Cir. 1995).
Here, there is no affirmative justification for exercising supplemental jurisdiction
beyond any ordinary inconvenience associated with dismissal on this ground.
Therefore, as Roy’s TCPA claim, the sole basis of the Court’s jurisdiction under 28
U.S.C. § 1331 in this action, will be dismissed with prejudice, the Court will decline to
exercise supplemental jurisdiction over his remaining state law claims. These claims will
be dismissed without prejudice to allow Roy to re-file them in state court if he so desires.
CONCLUSION
For the above stated reasons, DFS’s Motion to Dismiss (Doc. 6) will be granted
and Roy’s Complaint (Doc. 1) will be dismissed. An appropriate Order follows.
July 12, 2013
Date
/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?