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Roberts v. Medco Health Solutions, Inc

United States District Court, E.D. Missouri, Eastern Division

July 26, 2016

JENNIFER ROBERTS, individually and on behalf of all others similarly situated, Plaintiff,
v.
MEDCO HEALTH SOLUTIONS, INC., et al., Defendants.

          MEMORANDUM AND ORDER

          CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE

         Plaintiff Jennifer Roberts alleges that defendants Medco Health Solutions and Accredo Group, Inc.[1] placed more than 100 calls to her cell phone number without obtaining her consent. She claims the calls violated the Telephone Consumer Protection Act, 48 U.S.C. § 227, as well as the Missouri Merchandising Practices Act, Mo. Rev. Stat. § 407.1076, and she has brought this case both individually and as a class action. The parties have now filed cross-motions for summary judgment on Robert’s individual claims, and no class certification proceedings have been held.

         The summary judgment briefing was rife with disputed facts, including the total number of calls made, whether the calls were consented to, and whether defendants were on notice that plaintiff was not the intended call recipient. But the facts disputed in the briefs are not material to this decision. For reasons discussed below, only five phone calls are at issue in this matter, and the content of those is undisputed. I conclude that all five fall under the TCPA exception for calls made for an emergency purpose. Defendants’ motion for summary judgment will therefore be granted as to Roberts’ TCPA claim. Additionally, both because the federal Missouri Merchandising Protection Act claim is now dismissed and because Roberts’ MPA claim raises a novel and complex issue of state law, I decline to exercise jurisdiction over her Missouri claim, and it will be dismissed without prejudice. See 28 U.S.C. § 1367(c).

         DISCUSSION

         Roberts’ TCPA Claim

         Initially it is important to clarify the nature of Roberts’ TCPA claim. The TCPA provides:

(1) Prohibitions
It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United states---
(A) To make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice-
(iii) To any telephone number assigned to a … cellular telephone service….

47 U.S.C. § 227(b) (emphasis added). As indicated in her amended complaint and confirmed by her attorney at the motion hearing, and despite much discussion of “robocalls” in the filings for this case, Roberts is claiming only that the defendants violated the TCPA by using an artificial or prerecorded voice. She has not asserted any TCPA violation arising from the use of an automatic telephone dialing system.

         Factual Background

         In March 2015 Roberts purchased a pre-paid cell phone and was assigned a phone number that had previously been assigned to someone else. Shortly thereafter, she began receiving automated calls from defendants that were intended to reach the former owners of the number.

         The prior owners of the phone number were family members - Wife, Husband, and Son - for whom defendants, who are pharmacy benefit managers, provided prescription and health benefit services. The evidence indicates that each of the family members was receiving one or more prescription medications from defendants that would have been important to their continued health. The family members had provided the phone number during a February 24, 2015 phone call between Husband and a representative for defendants. Husband indicated that the medicine Son was taking was “a must” and without it, Son could end up in the hospital. The representative ...


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