United States District Court, E.D. Pennsylvania
For SANDRA ZARICHNY, Plaintiff: ARKADY ERIC RAYZ, LEAD ATTORNEY, KALIKHMAN & RAYZ LLC, HUNTINGDON VALLEY, PA; GERALD D. WELLS, III, CONNOLLY WELLS & GRAY, LLP, KING OF PRUSSIA, PA.
For COMPLETE PAYMENT RECOVERY SERVICES, INC., D/B/A CPRS D/B/A WWW.PAYMENTPOST.COM, FIDELITY NATIONAL INFORMATION SERVICES, D/B/A FIS D/B/A WWW.PAYMENTPOST.COM, Defendants: GERALD E. ARTH, LEAD ATTORNEY, JOSHUA HORN, FOX ROTHSCHILD O'BRIEN & FRANKEL LLP, PHILADELPHIA, PA; NICHOLAS T. SOLOSKY, FOX ROTHSCHILD LLP, WASHINGTON, DC.
Defendants Complete Payment Recovery Services, Inc. and Fidelity National Information Services (collectively, " the defendants" ) move to dismiss Sandra Zarichny's first amended complaint and strike the putative class action claims she brings under the Fair Debt Collection Practices Act (" FDCPA" ), 15 U.S.C. § 1692 et seq., and the Telephone Consumer Protection Act of 1991 (" TCPA" ), 47 U.S.C. § 227 et seq.
Plaintiff seeks to bring this putative class action on behalf of herself and two classes of similarly situated individuals pursuant to Fed.R.Civ.P. 23. She proposes to represent a nationwide class of people " who received one or more telephone calls from [d]efendants to whom [d]efendants did not send a written notice pursuant to 15 U.S.C. § 1692g,"  whom she refers to as " the FDCPA class." First Amended Complaint (" FAC" ) at ¶ 16. She also seeks tobring this action on behalf of those people " who received one or more telephone calls from[d]efendants on the individual's cellular telephone that was initiated using an automatic telephone dialing system" without prior consent, which she styles as " the TCPA class." Id. at ¶ 17
We have federal question jurisdiction pursuant to 28 U.S.C. § 1331.
For the reasons detailed below, we will grant defendants' motion in part and deny it in part.
I. Legal Standard
A. Motion To Dismiss
A defendant moving to dismiss under Fed.R.Civ.P. 12(b)(6) bears the burden of proving that a plaintiff has failed to state a claim for relief, see Fed.R.Civ.P. 12(b)(6); see also, e.g., Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). A Rule 12(b)(6) motion tests the sufficiency of the allegations contained in the complaint and " [t]he question, then, is whether the facts alleged in the complaint, even if true, fail to support the claim." Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (internal citation and quotation marks omitted). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), in order to survive a Rule 12(b)(6) motion " 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 is plausible " when the plaintiff pleads 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.
Our Court of Appeals requires district courts considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6) to engage in a two-part analysis:
First, the factual and legal elements of a claim should be separated. The district court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a district court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.'
Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009).
In deciding a motion to dismiss, all well-pleaded allegations of the complaint must be taken as true and interpreted in the light most favorable to the plaintiff, and all inferences must be drawn in her favor, see McTernan v. City of York, PA, 577 F.3d 521, 526 (3d Cir. 2009) (internal quotation marks omitted). To survive a motion to dismiss, a plaintiff must allege facts that " raise a right to relief above the speculative level on the assumption that the allegations in the complaint are true (even if doubtful in fact)." Victaulic Co. v. Tieman. 499 F.3d 227, 234 (3d Cir. 2007) (quoting Twombly, 550 U.S. at 555).
B. Motion To Strike
Rule 12(f) provides in pertinent part that we may strike from a pleading " an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter" on motion by either party " within 21 days after being served with the pleading." See Fed.R.Civ.P. 12(f).
In general, federal courts disfavor motions to strike an opponent's pleading under Fed.R.Civ.P. 12(f) because this drastic remedy " often is sought by the movant simply as a dilatory or harassing tactic." 5C Charles Alan Wright and Arthur R. Miller, Federal Practice & Procedure, § 1380 (3d ed. 2014). A court possesses " considerable discretion in disposing of a Rule 12(f) motion to strike." Id. at § 1382.
As a result, courts usually deny such motions " unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties, or if the allegations confuse the issues in the case." River Road Devel. Corp. v. Carlson Corp.-Northeast, 1990 WL 69085 at *3 (E.D.Pa. May 23, 1990) (VanArtsdalen, J.). That is because the purpose of a motion to strike is " to clean up the pleadings, streamline litigation, and avoid unnecessary forays into immaterial matters." Synthes, Inc. v. Emerge Medical, Inc., 2012 WL 4473228 at *3 (E.D.Pa. Sept. 28, 2012) (internal citation omitted) (Buckwalter, J.).
In a putative class action case like this one, a plaintiff may generally conduct discovery relevant to the Rule 23 class certification requirements and a court should, therefore, only grant a motion to strike class allegations if class treatment is evidently inappropriate from the face of the complaint. See Landsman & Funk PC v. Skinder-Strauss Assocs., 640 F.3d 72, 93 n. 30 (3d Cir. 2011) (the court may determine class certification before discovery when the " complaint itself demonstrates that the requirements for maintaining a class action cannot be met" ); accord John v. Nat'l Sec. Fire and Cas. Co., 501 F.3d 443, 445 (5th Cir. 2007). As our sister court explained, " It is only when no amount of discovery or time will allow for plaintiffs to resolve deficiencies in class definitions under Rule 23, that a motion to strike class allegations should be granted." McPeak v. S-L Distribution Co., Inc., 2014 WL 4388562 at *4 (D.N.J. Sept. 5, 2014) (citing with approval Pilgrim v. Universal Health Card, LLC, 660 F.3d 943, 949 (6th Cir. 2011)). Otherwise, an early motion to strike should be denied. " If the viability of a class depends on factual matters that must be developed through discovery, a motion to strike will be denied pending the full-blown certification motion." McPeak, 2014 WL 4388562 at *4 (quoting 1 Joseph M. McLaughlin, McLaughlin on Class Actions § 3.4 (7th ed. 2010)).
II. Factual Background
Plaintiff alleges that she is a college student who has on occasion rented course books from her college. FAC ¶ ¶ 53-54. According to her complaint, over a six-month period in 2013, she received eleven phone calls on her cell phone from (800) 873-5869, a number unknown to her that " appear[ed] to have been initiated by an automatic telephone dialing system." Id. at ¶ 56. She received phone calls on:
-- Thursday, June 13, 2013 at 7:20 p.m.;
-- Friday, June 21, 2013 at 10:04 a.m.;
-- Wednesday, June 26, 2013 at 1:37 p.m.;
-- Saturday, June 29, 2013 at 2:50 p.m.;
-- Friday, July 5, 2013 at an unspecified time;
-- Monday, July 15, 2013 at 4:06 p.m.;
-- Wednesday, October 9, 2013 at 8:58 a.m.;
-- Wednesday, October 16, 2013 at 9:20 a.m.;
-- Thursday, November 7, 2013 at 8:36 a.m.;
-- Monday, November 18, 2013 at 10:21 a.m.; and
-- Saturday, November 23, 2013 at ...