United States District Court, S.D. West Virginia, Huntington Division
JOANN HURLEY, on behalf of herself and all others similarly situated, Plaintiffs,
WAYNE COUNTY BOARD OF EDUCATION, a West Virginia Political Subdivision, and THOMAS MESSER, a West Virginia resident, Defendants.
MEMORANDUM OPINION AND ORDER
C. CHAMBERS CHIEF JUDGE
before the Court are Defendant Wayne County Board of
Education's (“BoE”) Motion to Dismiss and
Amended Motion to Dismiss. ECF Nos. 4, 10. Also pending is
Plaintiff Joann Hurley's Motion for Leave to Amend the
Complaint. ECF No. 28. Hurley brought suit against the BoE
for violations of the Telephone Consumer Protection Act
(“TCPA”) and related federal regulations for
allegedly improper political calls made by Defendants. The
BoE believes Plaintiff has not alleged facts to support a
claim of direct liability nor vicarious liability, and
therefore the case should be dismissed against the BoE.
Moreover, BoE maintains that Hurley's Motion to Amend
does not address the deficiencies raised in its motion to
dismiss and is therefore futile. For the following reasons
the Court DENIES Hurley's Motion to
Amend, GRANTS the BoE's Amended Motion
to Dismiss, and DENIES the BoE's Motion
to Dismiss as moot.
prior to February 2016, Hurley filed a bid for re-election to
the BoE. Compl. ¶ 6, ECF No. 1. On February 25, 2016,
Hurley received a phone call from a number not known to her.
Id. ¶ 7. The call conveyed a prerecorded
message that stated “Hurley votes no for students and
for schools and to vote responsibly.” Id. The
message did not reveal the identity of the proponent of the
message nor the telephone number or address of the proponent.
Id. The next day, February 26, 2016, another person
received the same prerecorded message. Id. ¶
12. The caller identification function on this person's
phone indicated that the caller was Defendant Thomas Messer,
an employee of the BoE. Id. Hurley kept receiving
these prerecorded phone calls until May 9, 2016, the day
before Election Day. Id. ¶ 9. The prerecorded
messages were delivered from two different phone numbers.
Id. ¶ 10. The first number was active from
February through part of April and associated with Defendant
Thomas Messer by caller Id. Id.
¶¶ 10, 12. The second was used for the remainder of
April until May 9, 2016. Id. ¶ 10. During
February, March, and April if the “0” key was
pressed immediately following the prerecorded message,
another message would play that stated: “you have
reached the voicemail of Thomas Messer.” Id.
alleges that anyone with any affiliation with the BoE
received the prerecorded messages and that the messages were
received on both mobile phones and landlines. Id.
¶ 15. Hurley also alleges that Messer and the BoE
initiated the calls using a call system maintained by the
BoE, which incorporates the BoE's “master call
list.” Id. ¶ 17. The list contains
telephone numbers for people affiliated with the BoE in some
way. Id. Hurley alleges that none of the messages
included required identifying and contact information for the
initiator of the calls as required by the TCPA. Id.
then brought this putative class action on behalf of herself
and all people that were or now are a part of the BoE contact
list. Id. Hurley's Complaint alleges two causes
of action. Count One alleges both defendants violated Section
227(d) of the TCPA, which imposes restrictions on prerecorded
phone messages. Id. ¶ 30; 47 U.S.C. §
227(d)(3). Count Two alleges both defendants violated the
Federal Communication Commission's (“FCC”)
regulations enforcing the TCPA. Id. ¶ 34; 47
C.F.R. § 64.1200(b).
now seeks dismissal from the case. The BoE first filed a
motion to dismiss and an answer in the alternative. ECF No.
4. Hurley did not respond to this motion. Some weeks later,
the BoE filed an amended motion to dismiss, which sets out in
much greater detail the BoE's arguments in support of its
motion. ECF No. 10. This motion has been fully
briefed by both parties and is ripe for
proposed Amended Complaint makes few additions of consequence
to the original Complaint. Hurley added two additional claims
in response to this Court's Order requesting additional
briefing on whether Section 227(d) provided for a private
cause of action. Pl.'s Mot. for Leave to Amend Compl. Ex.
A, ECF No. 28-1. Hurley now alleges violations of Section
227(b) and related regulations, while still retaining her
227(d) claims. Id. Hurley also makes additions
explaining Messer's method of placing the calls.
Id. She explains that Messer used online computer
programs to make robocalls at times he designated (1:00 p.m.
to 7:00 p.m.) using voice actors that Messer paid through
another online program to record scripts that he wrote.
renewed its arguments supporting its Motion to Dismiss in its
Response to Hurley's Motion to Amend. BoE maintains that
Hurley has not sufficiently pled facts to support any direct
liability nor has she pled facts to support any kind of
vicarious liability. BoE, relying on its response to the
Court's request for additional briefing, also argues that
Section 227(d) of the TCPA does not provide a private cause
of action and therefore Hurley's claims based on this
section must be dismissed.
15(a)(2) of the Federal Rules of Civil Procedure permits
amendment of a complaint after a responsive pleading has been
filed “with the opposing party's written consent or
the court's leave.” Fed.R.Civ.P. 15(a)(2). Leave
should be freely given “when justice so
requires.” Id. “[A] district court has
discretion to deny a motion to amend a complaint, so long as
it does not outright refuse to grant the leave without any
justifying reason.” Equal Rights Ctr. v. Niles
Bolton Assocs. 602 F.3d 597, 603 (4th Cir. 2010)
(quoting Forman v. Davis, 371 U.S. 178, 182 (1962)).
A court may deny a motion to amend a complaint if the
amendment would be futile. Id. (citing Laber v.
Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (en banc)). An
amendment is futile where even if it is permitted the
amendment would not save the complaint from a motion to
dismiss. Perkins v. United States, 55 F.3d 910, 917
(4th Cir. 1995) (citing Glick v. Koenig, 766 F.2d
265, 268-69 (7th Cir. 1985)).
analyzing a party's motion for judgment on the pleadings
pursuant to Federal Rule 12(c), the Fourth Circuit has
indicated that the applicable standard is the same as a
motion to dismiss pursuant to Federal Rule 12(b)(6), noting
that the “distinction is one without a
difference.” Burbach Broad Co. of Del. v. Elkins
Radio Corp., 278 F.3d 401, 405-06 (4th Cir. 2002). To
overcome a motion for judgment on the pleadings, a complaint
must be plausible. Bell Atl. Corp. v. Twombly, 550
U.S. 544, 546 (2007). This standard requires a plaintiff to
set forth the “grounds” for an
“entitle[ment] to relief” that is more than mere
“labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.”
Id. at 555 (internal quotations and citations
omitted). A complaint must contain “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) (internal quotations and citation
omitted). Facial plausibility exists when a claim contains
“factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citation omitted).
the factual allegations in the complaint as true (even when
doubtful), the allegations “must be enough to raise a
right to relief above the speculative level ….”
Twombly, 550 U.S. at 555 (citations omitted). If the
allegations in the complaint, assuming their truth, do
“not raise a claim of entitlement to relief, this basic
deficiency should … be exposed at the point of minimum
expenditure of time and money by the parties and the
court.” Id. at 558 (internal quotations and
citations omitted). Finally, “[a]lthough for the
purposes of a motion [for judgment on the pleadings] we must
take all of the factual allegations in the complaint as true,
we are not bound to accept as true a legal conclusion couched
as a factual allegation.” Iqbal, 556 U.S. at
678 (internal quotations and citation omitted).