United States District Court, E.D. Missouri, Eastern Division
JASON MARTIN, individually and on behalf of all others similarly situated, Plaintiffs,
MEDICREDIT, INC., et al., Defendants.
MEMORANDUM AND ORDER
RICHARD WEBBER SENIOR UNITED STATES DISTRICT JUDGE.
the Court is the Motion to Dismiss Plaintiff's Complaint
for Failure to State a Claim under Fed.R.Civ.P. 12(b)(6) by
Defendant HCA Health Services of New Hampshire, Inc., d/b/a/
Portsmouth Regional Hospital (“Portsmouth”) [ECF
No. 22]. Also before the Court is Defendants Medicredit Inc.
and Portsmouth's Motion to Stay These Proceedings [ECF
FACTUAL AND PROCEDURAL BACKGROUND
13, 2016, Plaintiff Jason Martin filed this class action
lawsuit against Defendants Medicredit, Portsmouth and
Wentworth-Douglass Hospital for alleged violations of the
Telephone Consumer Protection Act (“TCPA”), 47
U.S.C. § 227. Plaintiff contends Defendants violated 47
U.S.C. § 227(b)(1)(A)(iii) “by causing an automatic
telephone dialing system and/or [an] artificial or
prerecorded voice to be used to make nonemergency telephone
calls to Plaintiff and other members of the Class without
their prior express consent.”
Plaintiff argues Defendant Portsmouth Regional Hospital
(“Portsmouth”) assigned its delinquent accounts
to debt-collector Medicredit. Plaintiff alleges Medicredit
placed robocalls to Plaintiff's cellular telephone number
regarding a debt allegedly owed to Portsmouth by someone
other than Plaintiff. Plaintiff claims he did not provide
Defendants with his cellular telephone number. Plaintiff
alleges these pre-recorded calls expressly stated they were
made “on behalf of Portsmouth Regional Hospital”
and continued despite repeated requests from Plaintiff to
cease calling. Plaintiff alleges Portsmouth is directly and
vicariously liable for calls made by Medicredit.
further seeks to represent a nationwide class of individuals
to whose cellular telephone number Medicredit placed a
non-emergency call on and after July 14, 2015, through the
use of any automatic telephone dialing system
(“ATDS”) or artificial or prerecorded
voice--where the person's number was obtained from a
source other than the person himself. Plaintiff also set
forth a subclass of individuals who owed or allegedly owed a
debt to Defendant Portsmouth. Plaintiff requests the Court
issue an order certifying the action as a class action
pursuant to Fed.R.Civ.P. 23, “establishing the
appropriate Classes” and “finding Plaintiff is a
proper representative of the Classes.” Plaintiff seeks
statutory damages and injunctive relief under the TCPA from
both Medicredit and Portsmouth.
noted above, this action was commenced on July 13, 2016.
Three months earlier, on April 1, 2016, a putative class
action entitled Rajesh Verma, an individual, on behalf of
himself and all others similarly situated v. Medicredit, Inc.
et al., Case No. 3:16-cv-427-J-25JRK
(“Verma”), was filed in in the United
States District Court for the Middle District of Florida. In
Verma, the plaintiff alleged TCPA violations against
the defendants Memorial Healthcare Group, Inc.
(“Memorial”), and two debt collectors, NPAS, Inc.
and Medicredit, Inc. Plaintiff claims the Memorial hired NPAS
and Medicredit to place debt-collection calls to him
regarding a debt allegedly owed to Memorial. The plaintiff
stated he did not owe any money to Memorial, never provided
his cellular number to defendants or granted consent to call
it, and repeatedly told NPAS and Medicredit not to continue
to call him.
Verma also seeks to represent a nationwide class of
individuals subscribing to a cellular telephone whose number
appears in the Medicredit and NPAS's records in
association with an ATDS or a pre-recorded message and
artificial voice message. The proposed Verma class
includes individuals called between April 11, 2012, and the
date of certification. In its answer, Medicredit opposed
certification and argued the suit was not properly brought as
a class action. It is undisputed by the parties that the
proposed class in Verma has not yet been certified.
instant action, Defendant Portsmouth now moves the Court to
dismiss Plaintiff's claims against Portsmouth pursuant to
Fed.R.Civ.P. 12(b)(6) [ECF No. 22]. Also pending before the
Court is Defendants Portsmouth and Medicredit's Motion to
Stay these proceedings [ECF No. 24]. Defendants argue that
the “first-to-file” rule mandates a stay of this
action pending resolution of the Verma action. For
the reasons stated below, this Court will deny
Portsmouth's Motion to Dismiss and Defendants' Motion
Portsmouth's Motion to Dismiss
Portsmouth argues Plaintiff has failed to state a plausible
claim for relief pursuant to FRCP 12(b)(6). Specifically,
Portsmouth contends Plaintiff has failed to allege facts to
establish Portsmouth was directly or vicariously liable for
Medicredit's violations of the TCPA.
survive a motion to dismiss for failure to state a claim, a
complaint must contain “enough facts to state a claim
to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 545 (2007). Although a
complaint need not contain “detailed factual
allegations, ” it must contain facts with enough
specificity “to raise a right to relief above the
speculative level.” Id. at 555. This standard
“calls for enough fact[s] to raise a reasonable
expectation that discovery will reveal evidence of [the
claim].” Id. at 556. As the United States
Supreme Court recently reiterated in Iqbal,
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, ” will
not pass muster under Twombly. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
this standard, the task of a court is “to review the
plausibility of the plaintiff's claim as a whole, not the
plausibility of each individual allegation.” Zoltek
Corp. v. Structural Polymer Group, 592 F.3d 893, 896 n.
4 (8th Cir. 2010) (citing Braden v. Wal-Mart Stores,
Inc., 588 F.3d 585, 594 (8th Cir. 2009) (noting
“the complaint should be read as a whole, not parsed
piece by piece to determine whether each allegation, in
isolation, is plausible”)). “This is ‘a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.'”
Id. (quoting Iqbal, 556 U.S. at 679).
support of its Motion, Portsmouth argues Plaintiff failed to
plead Portsmouth was directly liable for violations of the
TCPA because Plaintiff did not allege Portsmouth made the
calls at issue. Portsmouth contends the “express
language of the TCPA makes clear that in order for there to
be liability, a defendant must have physically placed the
offending call.” However, as noted by Plaintiff, the
Federal Communications Commission (“FCC”) has
ruled that a creditor is responsible for calls made on its
behalf by a third-party debt collector. In In re Rules