United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant Charter
Communications, Inc.'s Partial Motion to Dismiss
Plaintiffs Claims Based on the Missouri No-Call Law (ECF No.
7). Also pending is Plaintiffs Voluntary Dismissal without
Prejudice of Plaintiff s Claims Based on the Missouri Do Not
Call Law and the Missouri Merchandising Practices Act (ECF
No. 11). Other than the voluntary dismissal, Plaintiff did
not file a response to Defendant's motion to dismiss, and
the time for doing so has expired. Defendant filed a
memorandum in opposition to Plaintiffs motion for voluntary
dismissal without prejudice (ECF No. 12).
case arises from two alleged telephone calls from Charter
Communications, Inc. ("Defendant") to Marilyn
Margulis ("Plaintiff). Plaintiff alleges that
Defendant's representative called her residential phone
for the purpose of encouraging the purchase or rental of, or
investment in, property, goods, or services, on or about July
15, 2014. (Compl. ¶ 31, ECF No. 4) Plaintiff asserts her
CallerlD transmitted the call from a toll free number, which
was disconnected and never assigned to Defendant. (Compl.
¶¶ 39-40) After answering the phone call, Plaintiff
asked the Defendant's representative to add Plaintiff to
Defendant's list of people who did not want to receive
telephone solicitations. (Compl. ¶ 34) In addition,
Plaintiff requested that a copy of Defendant's current Do
Not Call Policy be mailed to the Plaintiff, and the
representative agreed to send such copy. (Compl. ¶ 36)
However, Plaintiff alleges she did not receive
Defendant's Do Not Call Policy within thirty days of the
request. (Compl. ¶ 38)
further claims a representative of Defendant called
Plaintiffs phone a second time for solicitation purposes, via
a different disconnected and unassigned phone number, on July
30, 2014. (Compl. ¶¶ 43-53) Plaintiff contends both
telephone calls forced Plaintiff to incur time and expense,
while each call also prevented Plaintiffs telephone from
being used for other purposes during such calls. (Compl.
¶¶ 25, 27)
filed a Petition in Circuit Court of St. Louis County on
September 18, 2016. (ECF No. 4) Defendant removed the case to
federal court on the basis of federal question and diversity
jurisdiction on November 1, 2016. (ECF No. 1) Plaintiff s
complaint alleges violations of the Telephone Consumer
Protection Act ("TCPA"), 47 U.S.C. § 227 and
the Missouri Merchandising Practices Act ("MMPA"),
Mo. Rev. Stat. §§ 407.010, et seq.
Specifically, Plaintiff asserts claims under the MMPA for
violations of the Missouri Do Not Call Law
("MDNC"), Mo Rev. Stat. §§ 407.1098 and
407.1104, and a violation of telemarketing practices under
Mo. Rev. Stat. § 407.1076. She requests monetary damages
and injunctive relief.
November 8, 2016, Defendant filed a partial Motion to Dismiss
Plaintiffs claims under the MMPA claiming the statute bars
any action two years after Plaintiff knew or should have
known of the alleged violation. (ECF No. 7) On November 16,
2016, Plaintiff moved for Voluntary Dismissal without
Prejudice for her claims under the MDNC and the MMPA. (ECF
No. 11) Defendant opposes Plaintiffs Voluntary Dismissal
without Prejudice because the claims are time-barred. (ECFNo.
survive a motion to dismiss, a complaint must contain
'enough facts to state a claim for relief that is
plausible on its face.'" Smith v. UPS
Freight, No. 4T5-CV-382 JAR, 2015 WL 4274594, at *1
(E.D. Mo. July 14, 2015) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555, 570, (2007)). "[A]
court should construe the complaint liberally in the light
most favorable to the plaintiff." Eckert v. Titan
Tire Corp., 514 F.3d 801, 806 (8th Cir. 2008).
"Where the complaint itself establishes that the claim
is time-barred, dismissal pursuant to Rule 12(b)(6) is
proper." Hollingsworth v. United Airlines,
Inc., No. 4:16 CV 2139 DDN, 2017 WL 564491, at *2 (E.D.
Mo. Feb. 13, 2017) (citation omitted).
Rule of Civil Procedure 41 provides for the voluntary
dismissal without prejudice of an action by a plaintiff
without a court order where a plaintiff files: "(i) a
notice of dismissal before the opposing party serves either
an answer or a motion for summary judgment; or (ii) a
stipulation of dismissal signed by all parties who have
appeared." Fed.R.Civ.P. 41(a)(1)(A) and (B); Burke
v. Versa-Tags, Inc., No. 4:09CV0521 ERW, 2009 WL 3433471
at *2 (E.D. Mo. Oct. 19, 2008). However, where the opposing
party has served an answer, "an action may be dismissed
at the plaintiffs request only by court order, on terms that
the court considers proper." Fed.R.Civ.P. 41(a)(2).
"A decision whether to allow a party to voluntarily
dismiss a case rests upon the sound discretion of the
court." Hamm v. Rhone-Poulenc Rorer Pharms.,
Inc., 187 F.3d 941, 950 (8th Cir. 1999) (citation
omitted). "In exercising that discretion, a court should
consider factors such as whether the party has presented a
proper explanation for its desire to dismiss, . . . whether a
dismissal would result in a waste of judicial time and
effort, . . . and whether a dismissal will prejudice the
defendants ...." Id. (internal citations
the MMPA, "[n]o action or proceeding may be brought
pursuant to this section: (1) More than two years after the
person bringing the action knew or should have known of the
occurrence of the alleged violation[.]" Mo. Rev. Stat.
§ 407.1107. Defendant argues the two-year statute of
limitations bars Plaintiffs claims under the MMPA because the
calls allegedly made by Defendant were placed on July 15 and
30, 2014. Plaintiff did not file her state court petition
until September 18, 2016, approximately seven weeks after the
statute of limitations expired. Defendant further contends
that the Court should not allow Plaintiff to voluntarily
dismiss her MMPA claims without prejudice because the claims
are time-barred. Moreover, Defendant asserts dismissal
without prejudice is unwarranted because Defendant has
incurred expenses in preparing and filing a motion to dismiss
claims that were not viable under applicable law.
outset, the Court notes that Plaintiff has not provided any
reason why her MMPA claims should be voluntarily dismissed
without prejudice. See Hamm, 187 F.3d at 951
(affirming the denial of a motion to voluntarily dismiss
without prejudice where plaintiffs "provided no
legitimate justification for their request to dismiss").
Further, "[v]oluntary dismissal under Rule 41(a)(2)
should not be granted if a party will be prejudiced by the
dismissal, . . . and there is clear legal prejudice where a
Rule 41(a)(2) dismissal is granted in the face of a valid
statute of limitations defense . . . ." Metro. Fed.
Bank of Iowa, F.S.B. v. W.R. Grace & Co., 999 F.2d
1257, 1262-63 (8th Cir. 1993) (internal citations omitted)).
In Sutton-Price v. Daugherty Sys., Inc., plaintiff
sought to voluntarily dismiss without prejudice a claim under
the Missouri Minimum Wage Law ("MMWL"), which
contained a two-year statute of limitations. No. 4:11-CV-1943
(CEJ), 2012 WL 2282344, at *1 (E.D. Mo. June 18, 2012). The
court denied plaintiffs motion to dismiss and instead found
the defendant had "established that plaintiff['s]
claim under the MMWL is barred by the statute of limitations
and it is entitled to dismissal of the claim with
prejudice." Id. at *3 (citation omitted).
Furthermore, the Eighth Circuit has held, "[w]e would
consider it an abuse of discretion for a district court to
find no legal prejudice, and thus to grant voluntary
dismissal, where the nonmoving party has demonstrated a valid
statute of limitations defense to the claims sought to be
dismissed." W.R. Grace & Co., 999 F.2d at
case, Defendant's memorandum in support of its partial
motion to dismiss demonstrates that the two-year statute of
limitations bars Plaintiffs claims under the MMPA. (ECF No.
8) Plaintiff became aware of the alleged MMPA violations on
July 15 and 30, 2014, when Plaintiff allegedly answered
Defendant's solicitation phone calls. (Compl.
¶¶ 31 -37, 43-50) Plaintiff did not bring an action
against Defendant for the alleged violations of the MMPA
until September 18, 2016. (ECF No. 4) Because Plaintiff filed
her cause of action more than two years after receiving the
July 2014 phone calls, the Court finds that ...