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Hurley v. Wayne County Board of Education

United States District Court, S.D. West Virginia, Huntington Division

June 6, 2017

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.



         Pending 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.

         I. Background

         Sometime 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. ¶ 14.

         Hurley 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. ¶ 7.

         Hurley 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).

         The BoE 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.[1] ECF No. 10. This motion has been fully briefed by both parties and is ripe for decision.[2]

         Hurley's 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. Id.

         BoE 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.

         II. Legal Standard

         Rule 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)).

         In 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).

         Accepting 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).

         III. ...

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