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Martin v. Medicredit Inc.

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

November 15, 2016

JASON MARTIN, individually and on behalf of all others similarly situated, Plaintiffs,
v.
MEDICREDIT, INC., et al., Defendants.

          MEMORANDUM AND ORDER

          E. RICHARD WEBBER SENIOR UNITED STATES DISTRICT JUDGE.

         Before 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 No. 24].

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On July 13, 2016, Plaintiff Jason Martin filed this class action lawsuit against Defendants Medicredit, Portsmouth and Wentworth-Douglass Hospital[1] 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)[2] “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.”

         Specifically, 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.

         Plaintiff 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.

         As 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.

         Plaintiff 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.

         In the 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 to Stay.

         II. DISCUSSION

         A. Portsmouth's Motion to Dismiss

         Defendant 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.

         To 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).

         Under 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).

         In 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 andRegulations ...


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