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Jones v. DASCO - Norton Home Medical Equipment, LLC

United States District Court, W.D. Kentucky, Louisville Division

May 14, 2018

DWANE JONES, Plaintiff,
v.
DASCO - NORTON HOME MEDICAL EQUIPMENT, LLC, Defendant.

          MEMORANDUM OPINION AND ORDER

          DAVID J. HALE, JUDGE UNITED STATES DISTRICT COURT

         Plaintiff Dwane Jones brings this action against Defendant DASCO - Norton Home Medical Equipment, LLC, alleging violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. (Docket No. 1) DASCO moves to dismiss the complaint, arguing that Jones's claim fails as a matter of law because he consented to receive the calls at issue. (D.N. 7) Because an individual may revoke his prior consent under the TCPA, DASCO's argument is unavailing. The Court will therefore deny DASCO's motion.

         I. Background

         The following facts are set forth in the complaint and taken as true for the present motion. See Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (citations omitted)).

         This action arises from DASCO's attempt to collect a debt from Jones related to his purchase of a medical device. (See D.N. 7) Jones contends that DASCO called him approximately 250 times, and that the calls were made using an automatic telephone dialing system. (D.N. 1, PageID # 3) Jones also alleges that he instructed DASCO “on several occasions” to stop calling his cellphone number. (Id., PageID # 4)

         Jones filed this action on February 13, 2018, alleging violations of the TCPA's prohibition against the use of an automatic telephone dialing system. (D.N. 1) See also 47 U.S.C. § 227(b)(1)(A)(iii). DASCO now moves to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).[1] (D.N. 7)

         II. Standard

         In order to avoid dismissal for failure to state a claim, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. If “the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, ” the plaintiff has not shown that she is entitled to relief. Id. at 679. The complaint need not contain “detailed factual allegations, ” but it must provide “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (citing Twombly, 550 U.S. at 555). For purposes of a motion to dismiss, “a district court must (1) view the complaint in the light most favorable to the plaintiff and (2) take all well-pleaded factual allegations as true.” Tackett, 561 F.3d at 488 (citing Gunasekera, 551 F.3d at 466).

         III. Discussion

         In support of its motion to dismiss, DASCO attaches several exhibits. (See D.N. 7-1; D.N. 7-2; D.N. 7-3) “Because [these] document[s] [are] neither contained nor referenced in the pleadings, the Court must either reject the evidence or treat [DASCO's] motion as one for summary judgment.” See Tucker v. Heaton, No. 5:14-CV-00183-TBR, 2015 WL 3935883, at *2 (W.D. Ky. June 26, 2015). Having conducted a cursory review of the attached exhibits, the Court finds that the documents would not affect the following legal analysis. The Court will therefore reject the evidence and analyze the present motion under the standard applicable to Rule 12(b)(6) motions.

         DASCO argues that Jones's claim under the TCPA fails as a matter of law because Jones consented to receive the calls at issue. (D.N. 7, PageID # 23) As a general principle, that argument would ordinarily be correct. The TCPA makes it unlawful for any person to place a call “using any automatic telephone dialing system” to a cellphone No. without obtaining the “prior express consent of the called party.” 47 U.S.C. § 227(b)(1)(A)(iii); see also Baisden v. Credit Adjustments, Inc., 813 F.3d 338, 341-42 (6th Cir. 2016). The Federal Communications Commission (FCC) has interpreted “prior express consent” to include a form of implied consent. See In the Matter of Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 7 FCC Rcd. 8752, 8769 (1992) (“[P]ersons who knowingly release their phone No. have in effect given their invitation or permission to be called at the No. which they have given, absent instructions to the contrary.”).

         However, even if the Court were to accept DASCO's argument and assume that Jones consented to the calls by releasing his phone No. to DASCO, Jones may still have a plausible claim. The FCC has ruled that once given, consent may be revoked “at any time and through any reasonable means.” In re Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. 7961, 7989-90 (2015), overruled on other grounds, ACA Int'l v. Fed. Commc'ns Comm'n, 885 F.3d 687 (D.C. Cir. 2018); see also Eldridge v. Cabela's Inc., No. 3:16- cv-536-DJH, 2017 WL 4364205, at *2 (W.D. Ky. Sept. 29, 2017) (recognizing that an individual may revoke his prior consent under the TCPA). Jones alleges that “[o]n several occasions since the inception of [his DASCO] account, [he] instructed [DASCO's] agent(s) to stop calling his cellular telephone.” (D.N. 1, PageID # 4) Indeed, he claims that on one occasion, he specifically “instructed [DASCO's] agent to take him off [its] call list and stop calling his cellular telephone.” (Id.)

In response, DASCO contends that Jones's revocation argument is ineffective because
Jones has not produced any evidence that he revoked consent to be called by DASCO . . . . He has not produced any recordings or documentation reflecting a ...

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