United States District Court, W.D. Louisiana, Shreveport Division
MAGISTRATE JUDGE HORNSBY
MAURICE HICKS, JR., CHIEF JUDQE UNITED STATES DISTRICT COURT
the Court is a Motion to Dismiss filed by the defendant,
Carnival Corporation (“Carnival”). See
Record Document 31. Carnival contends that the claims of the
plaintiff, Clinton Strange (“Strange”), who is
proceeding pro se, should be dismissed because he
has failed to sufficiently allege a violation of the
Telephone Consumer Protection Act (“TCPA”) and
because his claims were filed in an improper venue. See
id. For the reasons that follow, the Motion to Dismiss
filed suit against Carnival, initially asserting that
Carnival had committed violations of 47 U.S.C. §§
227(b)(1)(A)(iii), (b)(1)(B), (b)(3), and (f) of the TCPA
based on calls to his cell phone. See Record
Document 1. Thereafter, Carnival filed a motion to dismiss
that raised defenses of improper venue and failure to state a
claim on which relief may be granted. See Record
Document 17. Strange responded with a motion to amend his
complaint, wherein he instead asserted a claim based on an
alleged violation of the Do Not Call provisions of the TCPA,
47 U.S.C. § 227(c)(5). See Record Document 21.
The motion for leave to amend the complaint was granted and
because the amended complaint substantially changed the
claims at issue, Carnival's initial motion to dismiss was
denied without prejudice to any of the arguments or defenses
raised therein. See Record Document 29. Thereafter,
Carnival filed the instant motion to dismiss. See
Record Document 31.
Pleading Standards and the Rule 12(b)(6) Standard.
8(a)(2) of the Federal Rules of Civil Procedure requires that
a pleading contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
The standard for the adequacy of complaints under Rule
8(a)(2) is a “plausibility” standard found in
Bell Atlantic Corporation v. Twombly, 550 U.S. 544,
127 S.Ct. 1955 (2007), and its progeny. Under this standard,
“[f]actual allegations must be enough to raise a right
to relief above the speculative level on the assumption that
all the allegations in the complaint are true (even if
doubtful in fact).” Id. at 555-56, 127 S.Ct.
at 1965 (citations omitted). If a pleading only contains
“labels and conclusions” and “a formulaic
recitation of the elements of a cause of action, ” the
pleading does not meet the standards of Rule 8(a)(2).
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 1949 (2009) (citation omitted).
Rule of Civil Procedure 12(b)(6) allows parties to seek
dismissal of a pleading for failure to state a claim upon
which relief may be granted. In deciding a Rule 12(b)(6)
motion to dismiss, a court generally “may not go
outside the pleadings.” Colle v. Brazos Cnty.,
Tex., 981 F.2d 237, 243 (5th Cir. 1993) (citation
omitted). However, a court may rely upon “documents
incorporated into the complaint by reference  and matters
of which a court may take judicial notice” in deciding
a motion to dismiss. Dorsey v. Portfolio Equities,
Inc., 540 F.3d 333, 338 (5th Cir. 2008) (citation
omitted); see Fed.R.Evid. 201. Additionally, courts
must accept all allegations in a complaint as true. See
Twombly, 550 U.S. at 555, 127 S.Ct. at 1965.
motion to dismiss is “viewed with disfavor and is
rarely granted.” Turner v. Pleasant, 663 F.3d
770, 775 (5th Cir. 2011), quoting Harrington v. State
Farm Fire & Cas. Co., 563 F.3d 141, 147 (5th Cir.
2009). Dismissal is appropriate only if the complaint fails
to plead “enough facts to state a claim to relief that
is plausible on its face.” Twombly, 550 U.S.
at 570, 127 S.Ct. at 1974. To satisfy this standard, the
complaint must provide more than conclusions, but it
“need not contain detailed factual allegations.”
Colony Ins. Co. v. Peachtree Constr., Ltd., 647 F.3d
248, 252 (5th Cir. 2011). However, it must allege enough
facts to move the claim “across the line from
conceivable to plausible.” Twombly, 550 U.S.
at 570, 127 S.Ct. at 1974. Determining whether the
plausibility standard has been met is “a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Iqbal, 556 U.S. at 679, 129 S.Ct. at 1950.
Failure to State a Claim.
Not Call provision of the TCPA which Strange has alleged has
been violated states:
person who has received more than one telephone call within
any 12-month period by or on behalf of the same entity in
violation of the regulations prescribed under this subsection
may, if otherwise permitted by the laws or rules of court of
a State bring in an appropriate court of that State-
(A) an action based on a violation of the regulations
prescribed under this subsection to ...