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Miller v. 3G Collect, LLC

United States District Court, E.D. Pennsylvania

September 16, 2014

3G COLLECT. LLC. Defendant.



Currently pending before the Court is Plaintiff Yvette Miller's Motion to Dismiss Defendant's Counterclaim. For the following reasons, the Motion is denied.


According to the facts set forth in the Complaint, Plaintiff Yvette Miller is an individual residing in Philadelphia, Pennsylvania and Defendant 3G Collect, LLC ("3G") is a New York business entity. (Compl. ¶¶ 3-4.) Beginning in November 2013, Defendant allegedly started calling Plaintiff on her cellular telephone using either an automated telephone dialer system ("ATDS" or "predictive dialer") or an artificial/prerecorded voice. (Id. ¶¶ 5-6.) When Plaintiff would answer the ATDS calls, she would hear a pre-recorded message stating, "Hi, this is 3G Collect, we are calling..." (Id. ¶ 7.) Plaintiff would then have to listen to a period of music before she was able to follow the automated prompt to be connected with a live representative. (Id.) Plaintiff, however, was not able to speak with a live representative as she was put on hold for an indefinite amount on each occasion that she followed the prompt. (Id. ¶ 8.) Defendant's automated system did not provide Plaintiff with an "opt-out" option to request the calls cease. (Id. ¶ 9.)

In addition to the ATDS calls, Defendant also sent text messages to Plaintiff's cellular phone. (Id. ¶ 10.) At all times, Defendant placed calls in attempts to collect payment from Plaintiff. (Id. ¶ 11.) The calls were not placed for emergency purposes and Plaintiff allgedly did not provide consent for the calls. (Id. ¶¶ 12-13.)

On May 12, 2014, Plaintiff filed the present litigation, alleging a violation of the Telephone Consumer Protection Act, 42 U.S.C. § 227, et seq. The Complaint alleges that each of the calls placed by Defendant to Plaintiff were done using an automatic telephone dialing system and/or a prerecorded message, and were placed without Plaintiff's express consent and without any "emergency purpose." (Id. ¶¶ 15-16.) Plaintiff now seeks damages for both negligent and intentional violation of the TCPA. (Id. ¶¶ 18-20.)

Defendant submitted its Answer with Counterclaim on July 10, 2014. In that Counterclaim, Defendant asserts that on October 3, 2013, a request for a collect call was received by Defendant from an initiating party to be placed through to a telephone number that Defendant believes is associated with Plaintiff Yvette Miller. (Countercl. Compl. ¶ 2.) As part of receiving the request to accept a collect phone call, Plaintiff would have heard a series of instructions which directed her to follow prompts that allowed her either to accept the collect call and authorize Defendant to invoice her for the call via her cellular telephone, or to decline to receive the collect call. (Id. ¶ 3.) On October 3, 2013, Plaintiff authorized Defendant to complete the collect call by following the series of prompts, which included making certain key strokes on the telephone both to accept the call and to verbally authorize 3G to connect the collect call and to bill her for the call by text messaging. (Id. ¶ 5.) Defendant then connected the collect call to Plaintiff's cellular telephone. (Id. ¶ 6.) Despite these authorizations, Plaintiff has failed and refused to pay the invoice for the collect call that was transmitted to her on or about October 4, 2013. (Id. ¶ 7.) Defendant has made numerous efforts to contact Plaintiff to obtain payment and Plaintiff has failed to and refused to pay. (Id. ¶ 8.) The total amount now due and owing, including late fees and collection charges, is $61.75. (Id. ¶ 9.)

On July 28, 2014, Plaintiff filed the present Motion to Dismiss Defendant's Counterclaim pursuant to Federal Rule of Civil Procedure 12(b)(1). Defendant responded on August 14, 2014, and Plaintiff submitted a Reply Brief on August 20, 2014. The Motion is now ripe for judicial review.


A motion to dismiss under Federal Rule of Civil Procedure12(b)(1) challenges the power of a federal court to hear a claim or a case. Petruska v. Gannon Univ. , 462 F.3d 294, 302 (3d Cir. 2006). When presented with a Rule 12(b)(1) motion, the plaintiff "will have the burden of proof that jurisdiction does in fact exist." Id . at 302 n.3. There are two types of Rule 12(b)(1) motions. A "facial" attack assumes that the allegations of the complaint are true, but contends that the pleadings fail to present an action within the court's jurisdiction. Id .; Mortenson v. First Fed. Sav. & Loan Ass'n , 549 F.2d 884, 891 (3d Cir. 1977). If the complaint is deficient as pled, the court should grant leave to amend before dismissing it with prejudice. Shane v. Fauver , 213 F.3d 113, 116-17 (3d Cir. 2000). A "factual" attack, on the other hand, argues that, while the pleadings themselves facially establish jurisdiction, one or more of the factual allegations is untrue thereby causing the case to fall outside the court's jurisdiction. Mortenson , 549 F.2d at 891. In such a case, "no presumptive truthfulness attaches to plaintiff's allegations" and the court must evaluate the merits of the disputed allegations because "the trial court's... very power to hear the case" is at issue. Id.


Plaintiff now contends that the Court must dismiss Defendant's Counterclaim under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. Plaintiff asserts that the Court has original jurisdiction over her claim, which alleges violations of a federal statute, but that Defendant's Counterclaim raises only issues of state law. As such, the sole basis for the Court's exercise of jurisdiction over the Counterclaim is supplemental jurisdiction under 28 U.S.C. § 1367. Plaintiff argues, however, that the exercise of supplemental jurisdiction over the counterclaim is not appropriate because it is not "part of the same case or controversy under Article III of the United States Constitution, " as is required pursuant to 28 U.S.C. § 1367(a). Defendant responds that the Court properly has jurisdiction over the Counterclaim.

To resolve this dispute, the Court must initially determine whether these alleged actions are compulsory counterclaims under Fed.R.Civ.P. 13(a) or, instead, are permissive counterclaims analyzed pursuant to Fed.R.Civ.P. 13(b). Sun Nat. Bank v. Rapid Circuits, Inc., No. Civ.A.11-432, 2011 WL 1899179, at *2-3 (E.D. Pa. May 9, 2011). "Compulsory" counterclaims are, in part, claims that "arise[ ] out of the transaction or occurrence that is the subject matter of the opposing party's claim." Fed.R.Civ.P. 13(a)(1)(A). As described by the Third Circuit Court of Appeals:

For a claim to qualify as a compulsory counterclaim, there need not be precise identity of issues and facts between the claim and the counterclaim; rather, the relevant inquiry is whether the counterclaim "bears a logical relationship to an opposing party's claim."... The concept of a "logical relationship" has been viewed liberally to promote judicial economy. Thus, a logical relationship between claims exists where separate trials on each of the claims would "involve a substantial duplication of effort and time by the parties and the courts."... Such a duplication is likely to occur when claims involve the same factual issues, the same factual and legal issues, or are offshoots of the same basic controversy ...

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