ZELMA v. CONWAY et al, No. 2:2012cv00256 - Document 39 (D.N.J. 2013)
Court Description: OPINION. Signed by Judge Dennis M. Cavanaugh on 12/11/13. (jd, )
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NOT FOR PUBLICATION UNITED STATES DISTRICT COURT I)ISTRICT OF NEW JERSEY RICHARD M. ZELMA. : Plaintiff, v. Hon. l)cnnis M. Cavanaugh OPINION : Civil Action No. 2:12-cv-00256 (DMC)(JBC) ART CONWAY (Individually); DIALAMERICA MARKETING INC.. RODALE INC.. PREVENTION MAGAZINE, et al., Defendants DENNIS M. CAVANAUGH, U.S.D,J.: This matter comes before the Court upon two motions to dismiss the Amended Complaint (April 17, 2013, ECF No. 22) of Plaintiff Richard M. Zelma ( Plaintiff or Zelma ) brought by (1) DialAmerica Marketing Inc. ( DialArnerica ) (May 15, 2013, ECF No. 28) and (2) Rodale Inc.. a/k/a Rodale Press. d/b/a Prevention Mauazine and Prevention Magazine ( the Rodale Defendants ) (May 15, 2013, ECF No. 29) pursuant to FED. R. Civ. P. 12(b)(6). Pursuant to Fuo. R. Civ. P. 78, no oral argument was heard. Based on the following and for the reasons expressed herein, Defendants motions to dismiss are granted. I. BACKGROUND On December 15, 2011. Plaintiff filed suit against DialAmerica. the Rodale Defendants. Art Conway, individually ( Conway ) and various John Does and AI3C Corporations in state The facts set forth in this Opinion are taken from the parties respective moving papers and tiings. court. (Compi.). On January 13. 2012, Defendants removed the case to this Court. (Notice of Removal, ECF No. 1). Defendants subsequently tiled motions to dismiss Plaintiffs Complaint, which was granted without prejudice as to all Defendants on September 13, 2012. (Order and Or.. ECF Nos. 16, 17). Plaintiff filed an Amended Complaint on April 1 7, 2013. (Am. Compi., ECE No. 22), Plaintiffs Amended Complaint voluntarily dismisses all claims against Conwa as vell as three of the six counts original pled. DialAmerica and the Rodale i)efendanis have each flied a second motion to dismiss Plaintiffs Amended Complaint for failure to state a claim upon which relief may be granted. Plaintiff asserts claims under the Telephone Consumer Protection Act, 47 U.S.C. seq.. (the TCPA ) and the New Jersey Do Not Call Law. N..J.S.A § § 227 et 56:8.i 19 et seq.. on the grounds that Deflndants made at least seven unsolicited calls to his residence. Plainti IT claims his name is on both the Federal and New Jersey Do Not Call lists and asserts that these phune calls were therefore made in violation of both statutes. Plaintiff seeks statutory, punitive or actual damages for each of the unlawful calls under the TCPA and New Jersey s Do Not Call Law as well as statutory treble damages under the TCPA for Defendants alleged willful and knowing violation. In addition, Plaintiff seeks costs and permanent injunctive relief pursuant to 47 U.S.C. IL § 227 (b)(3)(A). STANI)ARD OF REVIEW ln deciding a motion under Rule 1 2(b)(6). a district court is required to accept as true all factual allegations in the complaint and draw all inferences in the facts alleged in the light most flivorable to the [Plaintifti. Phillips v. Cnty. ofAlleghenv. 515 F.3d 224. 228 (3d Cii . 2008). [A] complaint attacked by a. Bell Ml Coip . . motion to dismiss does not need detailed factual allegations. Twombh 550 U 5 544 555 (2007) Ho\e\e1 the Plaintiffs obligation to provide the grounds of his entitleiment] to relief requires more than labels and conclusions. and a formulaic recitation of the elements of a cause of action will not do. Id. (internal citations omitted). [A court is] not bound to accept as true a legal conclusion couched as a factual allegation. Papasan v, Allain, 478 U.S. 265, 286 (1 986). Instead, assuming that the factual allegations in the complaint are true, those [tiactual allegations must be enough to raise a right to relief above a speculative level. Twombly. 550 U.S. at 555. A complaint will survive a motion to dismiss if it contains suflkient factual matter to state a claim to relief that is plausible on its face. Ashcroft v. lqbal. 556 U.S. 662. 678 (2009) (citing Twombly, 550 U.S. at 570). A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for misconduct alleged. Id. Deterrnining whether the allegations in a complaint are plausible is a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. Young v. Speziale, Civ. No. 07-03 129, 2009 WE 3806296, at *3 (I).N,.J. Nov. 1 0. 2009) (quoting lqbal. 556 U.S. at 679). iWihere the well pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged hut it has not shown that the pleader is entitled to relief. Iqbal. 556 U.S. at 679. Ill. DISCUSSION The Court finds that Plaintiffs Amended Complaint has not cured the deficiencies present in the original Complaint that this Court found to be grounds for dismissal in its Opinion of September 13. 2012. This Court dismissed Plaintilis original Complaint based on a 1nding that Plaintiffs wife had a subscription with Prevention Magazine and that Defendants phone calls were made to encourage subscription renewal. We found that these fticts triggered the TCPA s Established Business Relationship exception. 47 C.F.R. 3 § 64. 1 200(a)(4)( I). Under this exception, the TCPA does not apply if calls are made to customers with whom the caller has an Established Business Relationship. The term Established Business Relationship is defIned as a prior or existing relationship formed by a voluntary two-way communication between a person or entity and a residential subscriber with or without an exchange of consideration, on the basis of the subscriber s purchase or transaction with the entity within the eighteen (18) months immediately preceding the date of the telephone call. ,which relationship has not been previously terminated by either party. . 47 C.F.R. § 64.1200(0(5) (emphasis added). Instead of providing clarity to the Court, Plaintiffs Amended Complaint serves to muddy the factual allegations surrounding Plaintiffs and his wife s relationship with Prevention Magazine. However, it seems clear to the Court that although Plaintiff s viie may not have contracted directly with Prevention Magazine. she was receiving a subscription to the magazine through SkyMiles, her frequent flyer miles program with Delta/Continental Airlines. Since the Established Business Relationship exception applies with or without an exchange of consideration, the fact that Plaintiffs wife may not have paid Prevention Magazine directly for the subscription is of no consequence. The Court finds that Plaintiffs election to receive a free Prevention Magazine subscription through the SkvMiles program is a sufficient transaction to trigger the Established Business Relationship exception. In addition, the Court. finds thai. Plaintiff s notation of Do Not Call on forms provided b SR Miles in no way severed his business relationship with Prevention Magazine. For these reasons. the Court finds that the Established Business Relationship exception applies and therefore the calls made by Defendants were permissible under the TCPA. As such, Count Four of Plaintiffs Amended Complaint is dismissed 4 Plaintiff s claim for treble damages is also dismissed. Plaintiff has not provided any plausible factual allegation in his Amended Complaint to demonstrate that any of the Defendants acted willfully and knowingly, as required for treble damages. 47 U.S.C. § 227(b)(3)(C). As such, Count Five is dismissed. As Plaintiffs federal claim has been dismissed, the only remaining claim is that brought under New Jersey s Do Not Call Law. A district court is permitted to decline the exercise of supplemental jurisdiction if the district court has dismissed all claims over which it has original jurisdiction. See Kach v. Hose, 589 F.3d 626, 650 (3d Cir. 2009). The Court therefore declines to exercise jurisdiction over the state law claim in accordance with 28 U.S.C. ¶] 1367 (c). $g United Mine Workers of Am. v. Gibbs, 383 U.S. 715. 726 (1966) ( Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well. ): United States. cx rd. Piacentile v. Sanot Svnthelabo. Inc.. Civ. No, 05-2927, 2010 WL 5466043, at *10 (DN.J. Dec. 30, 2010) (declining to exercise supplemental jurisdiction over state law claims after dismissing federal FCA claims). As such, Count Three of Plaintiff s Amended Complaint is dismissed. IV. CONCLUSION For the foregoing reasons, Defendants motions to dismiss are granted. An appropriate Order accompanies this Opinion. Date: Original: cc: December 2013 Clerk s Of6e Hon. James B. Clark, U.S.M.J. All Counsel of Record File ,
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