United States District Court, E.D. Louisiana
RENEE REESE, ON BEHALF OF HERSELF AND OTHER PERSONS SIMILARLY SITUATED
ANTHEM, INC., ET AL.
ORDER AND REASONS
E. FALLON, UNITED STATES DISTRICT JUDGE
Telephone Consumer Protection Act, 47 U.S.C. § 227
et seq. (“TCPA”) prohibits making
automated telephone calls to cellular telephones without the
“prior express consent” of the recipient.
Plaintiff alleges that Defendants Anthem, Inc., Anthem
Foundation, and the American Heart Association
(“AHA”) violated the TCPA when they sent text
messages to Plaintiff and other consumers nationwide.
Defendants deny the alleged misconduct, and thus file the
instant motion to dismiss. Rec. Doc. 10. Having considered
the parties' submissions, arguments, and applicable law,
the Court now issues this Order and Reasons.
putative class action asserts two causes of action against
Defendants Anthem, Inc., Anthem Foundation, and AHA for
negligently and willfully violating the Telephone Consumer
alleges that Defendants violated the TCPA by using automatic
telephone dialing (“ATDS”) equipment (systems
designed for mass, automated communications) to send out
promotional text messages to thousands of consumers across
the country. See Rec. Doc. 1 at 3. Plaintiff claims
that consumers never expressly consented to receiving these
promotional text messages. Id. at 4. Plaintiff avers
that she was thus harmed by receiving these text messages
because these unsolicited text messages violated her privacy,
cost her money, diminished the value of her telephone
equipment and service, lost her time spent on dodging the
text messages, resulted in a loss of battery, and increased
her electrical costs. Id. at 4-5. Plaintiff seeks to
certify an uncertain class of persons who allegedly received
similar messages from Defendants.
states that she and other consumers began receiving these
unwanted communications after enrolling in the AHA's
texting program, which she initially believed to be a plan
that would send out healthy reminders, such as information
about cardiopulmonary resuscitation (“CPR”).
Id. at 8. However, Plaintiff alleges that AHA's
goal of this texting program is, in disguise, selling
advertising space to its branding partners, e.g.,
Anthem, Inc. and Anthem Foundation. See Id.
Plaintiff asserts that Defendant Anthem Foundation is the
charitable subsidiary of Defendant Anthem, Inc., a for-profit
health insurance company, and both jointly advertised through
AHA's text messages. Id. at 4, 8-9. The text
messages that Plaintiff received all begin with
“AHA/Anthem Foundation.” From that heading,
Plaintiff suggests that AHA and Anthem Foundation
(Anthem's charitable arm) have formed a partnership to
devise this advertising scheme. See Id. Plaintiff
further asserts she and other potential class members
received dozens of such text messages from Defendants.
Id. at 5. Plaintiff believes this constitutes
sending unsolicited text messages without consent using
automatic telephone dialing equipment, and therefore violates
the TCPA. Id. at 12. Plaintiff also believes that
additional text message sent through the program offering
for-pay classes in CPR training were a violation of the TCPA.
Id. at 11-12.
on behalf of herself and the class, seeks an injunction
requiring Defendants to cease sending the text messages,
statutory damages for herself and each member of the class,
and reasonable costs and attorney's fees. Id. at
1. Plaintiff believes she and the class are entitled to a
minimum of $500.00 in statutory damages for each violation
under 47 U.S.C. § 227(b)(3)(B). Id. at 8.
Additionally, Plaintiff believes the Defendants' conduct
was willful and knowing, and thus asks that the Court treble
the amount of statutory damages pursuant to 47 U.S.C. §
227(b)(3). Id. at 9. Plaintiff additionally requests
an order certifying the dispute as a class action, appointing
her as class representative and her attorneys as class
have filed the instant motion to dismiss under the Federal
Rule of Civil Procedure 12. Defendants proffer four reasons
for dismissal. First, Defendants claim that Plaintiff
provided them with prior express consent to receive ATDS
calls. Second, Defendants affirm that Anthem and Anthem
Foundation did not make any ATDS calls to Plaintiff. Third,
according to Defendants, the ATDS calls that Ms. Reese
received were not “telemarketing.” Finally, even
if they were telemarketing, AHA and Anthem Inc. argue that
they did not need Ms. Reese's express written consent
because they are nonprofit entities that require only prior
express consent. The Court will address the parties'
start with the basics, Rule 8(a) only requires that a
pleading contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). To survive a Rule 12(b)(6) motion to
dismiss, a plaintiff must plead “enough facts to state
a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). To satisfy plausibility, a plaintiff must plead
“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). The plausibility standard requires more
than a sheer possibility that the defendant acted unlawfully,
and Plaintiff's factual allegations “must be enough
to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555. Although
courts must presume that the plaintiff's factual
allegations are true, “legal conclusion[s] couched as .
. . factual allegation[s]” are not given such
deference; a plaintiff must provide the grounds of his
entitlement to relief beyond mere “labels and
conclusions.” See id.
considering a motion to dismiss for failure to state a claim,
a court must typically limit itself to the contents of the
pleadings, including their attachments. Collins v. Morgan
Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000).
“If, on a motion under 12(b)(6) . . . matters outside
the pleadings are presented to and not excluded by the court,
the motion must be treated as one for summary judgment under
Rule 56.” Fed.R.Civ.P. 12(d). Nevertheless, uncontested
documents referred to in the pleadings may be considered by
the Court without converting the motion to one for summary
judgment even when the documents are not physically attached
to the complaint. See Great Plains Trust Co. v. Morgan
Stanley Dean Witter & Co., 313 F.3d 305, 313 (5th
Cir. 2002). The Court may also consider documents attached to
a motion to dismiss without converting the motion into one
for summary judgment if the documents are referred to in the
complaint and are central to the plaintiff's claim.
Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d
285, 288 (5th Cir. 2004).