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Strange v. Carnival Corp.

United States District Court, W.D. Louisiana, Shreveport Division

March 20, 2019

CLINTON STRANGE
v.
CARNIVAL CORPORATION

          MAGISTRATE JUDGE HORNSBY

          MEMORANDUM RULING

          S. MAURICE HICKS, JR., CHIEF JUDQE UNITED STATES DISTRICT COURT

         Before 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 is DENIED.

         BACKGROUND

         Strange 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.

         LAW AND ANALYSIS

         I. Pleading Standards and the Rule 12(b)(6) Standard.

         Rule 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).

         Federal 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.

         A 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.

         II. Failure to State a Claim.

         The Do Not Call provision of the TCPA which Strange has alleged has been violated states:

         A 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 ...

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