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Abramson v. Caribbean Cruise Line, Inc.

United States District Court, W.D. Pennsylvania

June 30, 2014

STEWART N. ABRAMSON, Plaintiff,
v.
CARIBBEAN CRUISE LINE, INC. and PLAZA RESORTS, INC. Defendants.

MEMORANDUM OPINION

MAURICE B. COHILL, District Judge.

Pending before the Court is a Joint Motion to Dismiss [ECF No. 15] filled by Caribbean Cruise Line, Inc. ("CCL") and Plaza Resorts, Inc. ("Plaza") pursuant to Rule 12 of the Federal Rules of Civil Procedure. In their Joint Motion to Dismiss, Defendants assert they did not violate the Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA"), or the Federal Communication Commission ("FCC") regulations (See 47 C.F.R. § 64.1200) promulgated under the TCPA, because neither company initiated a call to Plaintiff, Stewart N. Abramson ("Plaintiff" or "Abramson"), using prerecorded messages for any of the impermissible purposes [ECF No. 15 at 3]. Further, Defendants assert that, pursuant to Fed.R.Civ.P. 12(b)(2), the First Amended Complaint should be dismissed on grounds that this Court lacks personal jurisdiction over Defendant Plaza [ECF No. 15 at 4-11]. Finally, Defendants assert that Plaintiffs First Amended Complaint should be dismissed under Rule Sea) because the Complaint impermissibly lumps Defendants together causing confusion and failing to give sufficient notice of the allegations against each Defendant [ECF No. 15 at 11-12]. For the following reasons, we will grant Defendants Motion to Dismiss in part, and deny in part.

I. Procedural History

On April 3, 2014, Defendants filed a timely motion for removal to the United States District Court for the Western District of Pennsylvania from the Court of Common Pleas of Allegheny County under federal question jurisdiction and pursuant to 28 U.S.C. § 1446 [ECF

On April 24, 2014, Defendants filed a Joint Motion to Dismiss and supporting memorandum claiming: (1) that this Court lacks personal jurisdiction over Defendant Plaza, and (2) that the Plaintiffs Complaint failed to state a claim upon which relief could be granted with respect to both Defendants Plaza and Caribbean Cruise Line [ECF No. 12]. Therefore, the lawsuit should be dismissed because, as a matter of law, no violation of TCPA had occurred. Further, Defendants requested that Plaintiffs Complaint be dismissed pursuant to Fed.R.Civ.P 8(a) because it lacked a clear claim for relief [ECF No. 12 at 9-10].

On May 5, 2014, Plaintiff filed his First Amended Complaint seeking to cure defects present in the first Complaint [ECF No. 14]. On May 23, 2014, Defendants filed a new Joint Motion to Dismiss, reasserting their Rule 12 and Rule 8 objections, and seeking dismissal with prejudice of Plaintiffs First Amended Complaint [ECF No. 15]. On June 9, 2014 Plaintiff filed a Response to Defendants' Joint Motion to Dismiss the Amended Complaint [ECF No. 16].

II. Relevant Facts

Caribbean Cruise Line, Inc. and Plaza Resorts, Inc. are Defendants in a case originally filed by Steward N. Abramson in the Court of Common Pleas of Allegheny County in February 2014 [ECF No. 1, Exhibit A]. Abramson seeks compensatory damages in the sum of $3, 000, plus costs and attorney's fees [See ECF No. 14 at 8].

The facts of the case are that Abramson received two calls from the same number approximately 14 minutes apart on February 3, 2014 [ECF No. 14 at 5]. According to Plaintiffs First Amended Complaint, Plaintiff answered the phone to receive the first call but no message was delivered [ECF No. 14 at 6]. Upon answering the phone to receive the second call, Plaintiff heard, "Hi, this is Jennifer with Caribbean Cruise Line, can you hear me ok?" [ECF No. 14 at 6]. The First Amended Complaint alleges that the caller went on to say, "The reason for my call is because we're looking for qualified travelers, such as yourself, to occupy unused cabin space aboard our magnificent cruise liner." [ECF No. 14 at 6]. The First Amended Complaint also differs from the original Complaint filed with this Court, which stated that during the second call Plaintiff asked the caller to repeat their name, at which time the caller hung up [ECF No. 1 at 3].

Later that same day, Plaintiff called the number from which he had received the earlier calls [ECF No. 14 at 6-7]. The voice that answered the phone allegedly delivered the identical message Plaintiff had received during CALL 2 [ECF No. 14 at 6]. Plaintiff interacted with the voice until he was connected to a live person [ECF No. 14 at 6]. The live person stated her name was Bridgette, that she worked for CCL, and then she gave Plaintiff her direct phone number [ECF No. 14 at 6]. Plaintiff was then transferred to two other live people who each said they worked for CCL [ECF No. 14 at 6]. Plaintiff ultimately purchased a product during this final call [ECF No. 14 at 7]. Plaintiff alleges his credit card was subsequently charged by Defendant Plaza [ECF No. 14 at 7], a claim Defendants contest [ECF No. 15 at 3 n. 16]. Defendants' Joint Motion for Dismissal claims that Plaintiff never purchased a travel package on February 3, 2014, and that the reservation number provided by Plaintiff is associated with an individual named Brian Ludin [ECF No. 15 at 3 n. 16]. Neither party provides evidence to support their position on this matter.

III. Standard of Review for Rule 12(b)(6) Motion to Dismiss

In ruling on a Rule 12(b)(6) Motion for Failure to State a Claim upon which Relief can be granted, a court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.'" Phillips v. County of Allegheny , 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd. , 292 F.3d 361, 374 n. 7 (3d Cir. 2002)); (see also Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 563, n.8 (2007)). A valid complaint requires only "a short and plain statement of the claim showing that the pleader is entitled to relief, " Fed.R.Civ.P. 8(a)(2). Rule 8 does, however, "demand more than an unadorned, the-defendant-unlawfully-harmed-me accusation." See Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (citing Twombly , 550 U.S. at 555).

"To survive a motion to dismiss a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Iqbal , 556 U.S. at 678 (quoting Twombly , 550 U.S. at 570). "A claim has facial plausibility 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 . at 678 (citing Twombly , 550 U.S. at 556). "Factual allegations [of a complaint] must be enough to raise a right to relief above the speculative level." Twombly , 550 U.S. at 555. "This [standard] does not impose a probability requirement at the pleading stage, ' but instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." Phillips , 515 F.3d at 234 (quoting Twombly , 550 U.S. at 556). Thus, "a plaintiff's obligation to provide the grounds' of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555 (citation omitted).

The Supreme Court in Iqbal explained that although a court must accept as true all of the factual allegations contained in a complaint, that requirement does not apply to legal conclusions; therefore, pleadings must include factual allegations to support the legal claims asserted. See 556 U.S. at 678. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Id . (citing Twombly , 550 U.S. at 555); see also Phillips , 515 F.3d at 232 ("We caution that without some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only fair notice, ' but also the grounds' on which the claim rests.") (citing Twombly , 550 U.S. at 555 n. 3 (2007)). Accordingly, to survive a motion to dismiss, a plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678.

Finally, if the court decides to grant a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6), the court must next decide whether leave to amend the complaint must be granted. As explained in Phillips, "We have instructed that if a complaint is vulnerable to 12 (b) (6) dismissal, a district court must permit a curative amendment, unless an amendment would be ...


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