Reese v. Marketron Broadcast Solutions, LLC et al, No. 2:2017cv09772 - Document 36 (E.D. La. 2018)
Court Description: ORDER AND REASONS granting 10 Motion to Dismiss for Failure to State a Claim. For the foregoing reasons, the Court GRANTS defendants' motion to dismiss. Plaintiff's claims against Atlantic, BWA, and Citadel are DISMISSED WITH PREJUDICE. Signed by Judge Sarah S. Vance on 1/3/2018. (cg)
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Reese v. Marketron Broadcast Solutions, LLC et al Doc. 36 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA RENEE REESE CIVIL ACTION VERSUS NO. 17-9772 MARKETRON BROADCAST SOLUTIONS, LLC, ET AL. SECTION “R” (1) ORD ER AN D REASON S Defendants Atlantic Recording Corporation (Atlantic), Bread Winners’ Association (BWA), LLC (BWA), and Citadel Broadcasting Com pany (Citadel) m ove to dism iss plaintiff’s claim s in her first am ended com plaint. 1 For the following reasons, the Court grants the m otion. I. BACKGROU N D Plaintiff Renee Reese filed this putative class action seeking damages and equitable relief under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227. In her first am ended com plaint, plaintiff alleges that defendants Marketron Broadcast Solutions, LLC (Marketron), Atlantic, BWA, Citadel, and Studio Network-Orpheum LLC sent unsolicited text 1 R. Docs. 10 , 11. Dockets.Justia.com m essages to plaintiffs, and others sim ilarly situated, prom oting live concerts. 2 Plaintiff asserts that defendants sent these m essages using an autom atic telephone dialing system . 3 Atlantic, BWA, and Citadel now m ove to dism iss plaintiff’s claim s in the first am ended com plaint under Federal Rule of Civil Procedure 12(b)(6). Plaintiff did not oppose these m otions, but instead filed a second am ended com plaint which nam es only Marketron as a defendant. 4 Plaintiff has also filed a m otion for class certification. 5 II. STAN D ARD OF REVIEW To survive a Rule 12(b)(6) m otion to dism iss, plaintiffs m ust plead enough facts to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (quoting Bell Atlantic Corp. v. Tw om bly , 550 U.S. 544, 547 (20 0 7)). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the m isconduct alleged.” Id. at 678. A court 2 R. Doc. 4 at 3 ¶ 15. Id. at 3-4 ¶ 17. 4 R. Doc. 29. Marketron has m oved to strike this second amended com plaint because it was filed without leave of court or consent of the parties. R. Doc. 32. In response, plaintiff m oved for leave to am end her pleadings. R. Doc. 35. 5 R. Doc. 34. 2 3 m ust accept all well-pleaded facts as true and m ust draw all reasonable inferences in favor of the plaintiff. Lorm and v. U.S. Unw ired, Inc., 565 F.3d 228, 239, 244 (5th Cir. 20 0 9). But the Court is not bound to accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678. A legally sufficient com plaint m ust establish m ore than a “sheer possibility” that plaintiffs’ claim is true. Id. It need not contain detailed factual allegations, but it m ust go beyond labels, legal conclusions, or form ulaic recitations of the elements of a cause of action. Tw om bly , 550 U.S. at 555. In other words, the face of the com plaint m ust contain enough factual m atter to raise a reasonable expectation that discovery will reveal evidence of each elem ent of the plaintiffs’ claim. Lorm and, 565 F.3d at 257. If there are insufficient factual allegations to raise a right to relief above the speculative level, Tw om bly , 550 U.S. at 555, or if it is apparent from the face of the com plaint that there is an insuperable bar to relief, Jones v. Bock, 549 U.S. 199, 215 (20 0 7); Carbe v. Lappin, 492 F.3d 325, 328 n.9 (5th Cir. 20 0 7), the claim m ust be dism issed. III. D ISCU SSION The TCPA m akes it unlawful to m ake a call using an autom atic telephone dialing system “to any telephone number assigned to a . . . cellular 3 telephone service,” without the recipient’s express consent. 47 U.S.C. § 227(b)(1)(A)(iii). It also provides a private right of action to seek injunctive relief and damages. Id. § 227(b)(3). Plaintiff’s first amended com plaint fails to state a TCPA claim because it rests on conclusory allegations of collective wrongdoing. The complaint directs its allegations towards “defendants” as a group without explaining any particular defendant’s involvement. As the Seventh Circuit recently noted, “liability is personal.” Bank of Am ., N .A. v. Knight, 725 F.3d 815, 818 (7th Cir. 20 13). Because the notice pleading requirement of the Federal Rules of Civil Procedure entitles “[e]ach defendant . . . to know what he or she did that is asserted to be wrongful,” allegations based on “a theory of collective responsibility” cannot withstand a m otion to dism iss. Id. That plaintiff filed a second am ended complaint alleging wrongful conduct only by Marketron highlights the dearth of factual allegations against the other defendants. Thus, plaintiff’s first am ended com plaint does not state a claim against Atlantic, BWA, and Citadel. 4 IV. CON CLU SION For the foregoing reasons, the Court GRANTS defendants’ m otion to dism iss. Plaintiff’s claim s against Atlantic, BWA, and Citadel are DISMISSED WITH PREJ UDICE. 3rd New Orleans, Louisiana, this _ _ _ _ _ day of J anuary, 20 18. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 5
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