Musenge v. Smartway of the Carolinas, LLC

TAMARA MUSENGE, Plaintiffs, v. SMARTWAY OF THE CAROLINAS, LLC d/b/a SMARTWHEELS, Defendants.

3:15-cv-153-RJC-DCK

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION

September 17, 2018

ORDER

THIS MATTER comes before the Court on Defendant's Motion for Judgment on the Pleadings, (Doc. No. 19); its memorandum in support, (Doc. No. 20); Plaintiff's response in opposition, (Doc. No. 24); and Defendant's reply, (Doc. No. 25).

I. BACKGROUND

A. Procedural Background

Tamara Musenge ("Plaintiff") filed her Amended Complaint on April 10, 2015. (Doc. No. 4). SmartWay of the Carolinas, LLC ("Defendant") filed its Motion for Judgment on the Pleadings on March 7, 2016. (Doc. No. 19). On September 13, 2016, the Magistrate Judge granted the parties' Motion to Stay Proceedings, (Doc. No. 27), pending appeal in the Court of Appeals for the District of Columbia Circuit, which involved the Telephone Consumer Protection Act ("TCPA")—the basis for one of Plaintiff's claims. (Doc. No. 33). The Court lifted that stay on July 11, 2018. (Doc. No. 44). With the stay lifted, the Court now turns to Defendant's pending Motion for Judgment on the Pleadings, (Doc. No. 19).

B. Factual Background

On January 4, 2014, Plaintiff signed a Lease Agreement with Defendant, leasing a set of tires. (Doc. No. 20-2). Along with this agreement, Plaintiff completed a Lease Order Form, listing several personal references and their contact information in the event Plaintiff were to fall behind on her payments. (Doc. No. 20-1). This Order Form stated:

I consent to SmartWheels contacting any person or company that I have listed above for references or assistance in locating or contacting me, and I fully release all parties from all liability for any damage that may result. My (our) signature(s) below indicates that for purpose of confirmation, I (we) have voluntarily waived the protection of all rights to privacy laws." ... By providing my telephone number(s), including any cellular number(s), I consent to receiving calls (both live and automated) from SmartWheels regarding my agreement(s).

(Id.).

Plaintiff eventually fell behind on her payments to Defendant. (Doc. No. 4 ¶5). As a result, Defendant began sending text messages to Plaintiff's cellular phone to both collect payments and solicit promotional offers. (Id. ¶6). At least once, Plaintiff responded to Defendant's messages, revoking her consent to be contacted through text messages. (Id. ¶7). Nonetheless, Defendant continued to text Plaintiff regarding her debt. (Id.).

Aside from telephone communication, Defendant also attempted several in-person visits to confront Plaintiff. Several times, Defendant's representativeappeared at Plaintiff's residence, "pounding on [her] door and [waking] her infant." (Id. ¶10). At least once, a representative attempted to twist Plaintiff's front doorknob in an attempt to enter when Plaintiff did not answer the door. (Id. ¶11). Defendant also sent a representative to Plaintiff's workplace. (Id. ¶9). The representative bypassed the reception area unannounced and uninvited, resulting in Plaintiff being questioned by the Human Resources department. (Id.).

Defendant also sent several letters to Plaintiff. These letters did not have markings on them hinting at their confidential nature, leading to a coworker of Plaintiff's reading the sensitive material inside. (Id. ¶14). Some letters also threatened criminal action under both Florida and North Carolina law. (Id. ¶13).

From Defendant's debt collection practices, Plaintiff's Complaint now alleges claims for (1) violation of the TCPA, (2) violation of the North Carolina Debt Collection Act ("NCDPA"), (3) violation of the North Carolina Unfair and Deceptive Trade Practices Act ("UDTPA"), (4) invasion of privacy by intrusion upon seclusion, (5) intentional or negligent infliction of emotional distress, and (6) fraud. (Doc. No. 4). Since her Complaint, Plaintiff has voluntarily dismissed her fraud claim. (Doc. No. 24 at 2, n.1).

II. STANDARD OF REVIEW

Rule 12(c) motions are governed by the same standard as motions brought under Rule 12(b)(6). Occupy Columbia v. Haley, 738 F.3d 107, 115 (4th Cir. 2013). In its review of a Rule 12(b)(6) motion, "the court should accept as true all well-pleaded allegations and should view the complaint in a light most favorable to theplaintiff." Mylan Labs Inc. v. Matakari, 7 F.3d 1130, 1134 (4th Cir. 1993) (internal citation omitted). But the court need not accept allegations that "contradict matters properly subject to judicial notice or by exhibit." Blankenship v. Manchin, 471 F.3d 523, 529 (4th Cir. 2006) (quoting Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002)). The court may consider the complaint, answer, and any materials attached to those pleadings or motions for judgment on the pleadings "so long as they are integral to the complaint and authentic." Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009); see also Fed R. Civ. P. 10(c) (stating that "an exhibit to a pleading is part of the pleading for all purposes."). In contrast to a Rule 12(b)(6) motion, the court may consider the answer as well on a motion brought pursuant to Rule 12(c). Alexander v. City of Greensboro, 801 F. Supp. 2d 429, 433 (M.D.N.C. 2011).

The plaintiff's "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Id. at 563. A complaint attacked by a Rule 12(b)(6) motion to dismiss will survive if it contains 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 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. Thus, the applicable test on a motion for judgment on the pleadings is whether, when viewed in the light most favorable to the partyagainst whom the motion is made, genuine issues of material fact remain or whether the case can be decided as a matter of law. Alexander, 801 F. Supp. 2d at 433.

III. DISCUSSION

A. Plaintiff' Does Not Properly Plead a Claim Under the Telephone Consumer Protection Act.

The Telephone Consumer Protection Act forbids

any person within the United States, or any person outside the United States if the recipient is within the United States . . . [from making] any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service . . . unless such call is made solely to collect a debt owed to or guaranteed by the United States.

47 U.S.C. § 227(b)(1)(A)(iii); Hester v. JPMorgan Chase Bank (In re Hester), Nos. 11-04375-8-DMW, 15-00001-8-DMW, 2015 Bankr. LEXIS 3508, at *18-19 (Bankr. E.D.N.C. Oct. 16, 2015). For the purposes of the TCPA, text messages are included within the definition of "call." Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 667 (2016), as revised (Feb. 9, 2016). Defendant argues that Plaintiff's claim under the TCPA must fail because her Complaint makes no allegation that Defendant used an automated telephone dialing system. (Doc. No. 20 at 4-5). The TCPA defines "automatic telephone dialing system" as equipment with the capacity to: "(A) store or produce telephone numbers to be called, using a random or sequential number generator; and (B) dial such numbers." 47 U.S.C. § 227. Acknowledging that her Complaint lacks textual allegations of an automated system, Plaintiff argues that theexhibits attached to the Complaint showing the text messages she received from Defendant sufficiently prove their automated nature. (Doc. No. 24 at 8). Those texts, Plaintiff explains, show a repeated transmission of generic, non-individualized, messages indicative of an ATDS. (Id.).

A plaintiff's burden to allege the use of an ATDS is not a heavy one. Simply alleging the use of an ATDS system and supporting that allegation with observations of the nature of the calls or text messages would suffice.¹ It would be unreasonable for a plaintiff to factually plead the technical details of an ATDS without the benefit of discovery. Stewart, 124 F. Supp. 3d at 734 (citing Hickey v. Voxernet LLC, 887 F.Supp.2d 1125, 1129-30 (W.D. Wash. 2012)). That being said, some level of factual allegation is required. Simply attaching reproductions of text messages with no further connection to her specific allegations is insufficient. Plaintiff fails to state a claim under the TCPA.

Plaintiff's attempt in the middle or her response brief to request leave to amendher Complaint (Doc. No. 24 at 10) violates Rule 7.1(c)(2) of the Local Rules, which states, "Motions shall not be included in responsive briefs. Each motion must be set forth as a separately filed pleading." Without a separate motion filed by Plaintiff, the Court refrains from ruling on Plaintiff's request. Therefore, the Court grants Defendants' motion as to Plaintiff's TCPA claim and dismisses Count I without prejudice. The Court grants Plaintiff fifteen (15) days to file a motion seeking to amend her Complaint so that Plaintiff can have the opportunity to state her claim adequately. Dismissal shall be with prejudice if Plaintiff does not file a motion seeking leave to amend her Complaint within fifteen (15) days.

B. Plaintiff Properly Alleges a Claim Under the North Carolina Debt Collection Act.

Defendant argues that Plaintiff's claim under the NCDCA fails to allege an actual injury or damages, warranting the claim's dismissal. (Doc. No. 20 at 5). In order to establish a claim under the NCDCA, a plaintiff...