United States District Court, Western District of Pennsylvania
Joy Flowers Conti United States District Judge
This matter is before the court upon a partial motion to dismiss (ECF No. 17) filed on behalf of defendants Just Energy Group, Inc., Just Energy Limited, Just Energy Pennsylvania Corp., and Just Energy Ohio, LLC (collectively, “Just Energy”). This court has jurisdiction pursuant to 28 U.S.C. § 1331. For the reasons set forth below, the motion to dismiss will be granted.
II. Factual Background
Because plaintiff Jeffrey Frank Klein (“plaintiff” or “Klein”) is proceeding pro se, the factual allegations in his complaint are to be liberally construed. Erickson v. Pardus, 551 U.S. 89, 94 (2007). At some point in early 2013, plaintiff began receiving debt collection calls on his cell phone from Just Energy related to a debt owed by an individual named Phyllis M. Settles. (Complaint (ECF No. 2) ¶¶ 19-20.) Klein does not know anyone by the name of Phyllis M.
Settles or have any relationship with that individual. (Id. ¶ 21.) The calls typically used an automatic dialing system and featured a prerecorded voice and message. (Id. ¶ 26-27.)
On or about September 30, 2013, Klein contacted Just Energy to inform the company that it had been calling the wrong number. (Id. ¶ 29). Klein explained to a Just Energy representative that he was not associated with (and, indeed, had never heard of) Phyllis M. Settles and requested that the collection calls cease and desist. (Id.) The representative acknowledged his understanding of Klein’s demand. (Id. ¶ 30). Nonetheless, the collections calls continued on a regular basis. (Id. ¶ 31.)
At some point in December 2013 or January 2014, Klein spoke with a representative of Just Energy and again explained the mistake. (Id. ¶ 32.) Plaintiff reiterated his demand that the misdirected collection calls cease. (Id. ¶ 33.) Just Energy’s representative again indicated that he understood. (Id.) Klein, however, continued to receive collection calls directed at Phyllis M. Settles. (Id. ¶ 34.) In all, Klein received in excess of 200 phone calls from Just Energy, over 150 of which occurred after Klein explained to Just Energy that it had been calling a wrong number. (Id.) According to Klein, these calls have caused him to suffer “extreme emotional distress.” (Id. ¶¶ 42, 48, 57.)
III. Procedural History
On August 7, 2014, plaintiff commenced the instant action by filing a motion for leave to proceed in forma pauperis. (ECF No. 1.) The court granted that motion and docketed plaintiff’s complaint on August 13, 2014. (ECF No. 2.) In his complaint, plaintiff primarily contends that the erroneous debt collection calls violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 (Count I). (Id. ¶¶ 24-37.) He also asserts common law claims based on theories of private nuisance (Count II), invasion of privacy (Count III), and negligence (Count IV). (Id. ¶¶ 38-57.)
Just Energy moved to dismiss Counts II and IV of the complaint on October 15, 2014. (ECF No. 17.) Plaintiff filed a brief in opposition to that motion on October 21, 2014. (ECF No. 20.) The matter is now fully briefed and ripe for review.
IV. Standard of Review
A motion to dismiss tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a motion to dismiss, the court is not opining on whether the plaintiff will be likely to prevail on the merits; rather, when considering a motion to dismiss, the court accepts as true all well-pled factual allegations in the complaint and views them in a light most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). While a complaint does not need detailed factual allegations to survive a Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”) motion to dismiss, a complaint must provide more than labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A “formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Factual allegations must be enough to raise a right to relief above the speculative level” and “sufficient to state a claim for relief that is plausible on its face.” Id. “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).
The plausibility standard is not akin to a “probability requirement, ” but it asks for more than a sheer possibility that a defendant has acted unlawfully.. . . Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line ...