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Aviles v. Medicredit, Inc.

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

July 24, 2017

JEREMY AVILES and RACHEL CATALA, individually and on behalf of all others similarly situated, Plaintiffs,
v.
MEDICREDIT, INC., a Missouri corporations; and HCA HEALTH SERVICES OF FLORIDA, INC. d/b/a Osceola Regional Medical Center Defendants.

          MEMORANDUM AND ORDER

          E. RICHARD WEBBER SENIOR UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Plaintiffs' Motion requesting leave to file a consolidated complaint that substitutes Marilynn Martinez as Plaintiff in place of Jeremy Aviles and Rachel Catala [ECF No. 68] and Defendant Medicredit Inc.'s Motion to Dismiss for Lack of Jurisdiciton as to Plaintiffs Jeremy Aviles and Rachel Catala [ECF No. 71].

         I.BACKGROUND

         Plaintiff Jason Martin (“Martin”) initiated this lawsuit by filing a class action complaint in this Court on July 13, 2016, against Defendants Medicredit, Inc., HCA Health Services of New Hampshire, Inc. doing business as Portsmouth Regional Hospital (“HCA”), and Went-worth-Douglass Hospital (“Defendants”). Plaintiff Martin's action for damage arises under 47 U.S.C. § 227, the Telephone Consumer Protection Act (“TCPA”). Plaintiff Martin also brought this action on behalf of several classes of other similarly situated individuals, seeking damages and any other available legal or equitable remedies resulting from the illegal actions of Defendant Medicredit, Inc. (“Medicredit”).

         On May 3, 2017, an Amended Complaint was filed which named Jeremy Aviles and Rachel Catala as Plaintiffs in this matter. Martin, the original Plaintiff was dismissed from the matter. On May 5, 2017, the Court entered an order consolidating this action with the action styled Hornberger et al. v. Medicredit, Inc., No. 4:17-cv-00409-SNLJ. On May 24, 2017, Plaintiffs moved to substitute Marilynn Martinez as plaintiff in place of Jeremy Aviles and Rachel Catala in the consolidated complaint, with Plaintiffs Todd Hornberger and Eric Johnson remaining as Plaintiffs in the consolidated action. Defendant Medicredit, pursuant to Federal Rule of Civil Procedure (“FRCP”) 12(b)(1), submitted a motion to dismiss the action for lack of subject matter jurisdiction in combination with its opposition to the Motion to Substitute.

         Medicredit argues Aviles and Catala do not have standing to bring the action, and therefore, they do not have standing to file a Motion to Substitute another plaintiff in their stead. Medicredit also claims any attempt to substitute Martinez as a representative plaintiff would be futile. They argue Martinez cannot satisfy the FRCP 23(a) typically requirement, because she is subject to unique defenses arising out of her relationship with the former Plaintiff Aviles.

         In a motion to dismiss, the Court accepts the allegations in the complaint as true. Great Rivers Habitat Alliance v. Fed. Emergency Mgmt. Agency, 615 F.3d 958, 988 (8th Cir. 2010). The following are the facts alleged by Plaintiffs. Medicredit has equipment with the capacity to dial numbers without human intervention to be used to make non-emergency telephone calls to the cellular telephone of Plaintiffs and other members of the class. Medicredit utilizes an artificial and/or prerecorded voice, and Medicredit used this equipment to call Plaintiffs without regard as to whether they had obtained express permission from the called party to make such calls or after consent was revoked. In 2015 and 2016, Martinez received numerous telephone calls on her cellphone ending in “5105” from Medicredit regarding a debt allegedly owed to HCA by her adult son. Several calls used an artificial or prerecorded voice. At no time leading up to these calls did Martinez provide either Defendant with her cellphone number to be called regarding her son's alleged debt or otherwise give either Defendant consent to call her regarding her son's alleged debt. Martinez believes her son gave HCA her name and cell phone as the person to notify regarding the outcome of his medical treatment or any emergencies, not as a person to notify regarding an alleged debt.

         Plaintiffs also bring this action on behalf of several classes of other similarly situated individuals, seeking damages and any other available legal or equitable remedies resulting from the illegal actions of Defendants in negligently, knowingly, or willfully contacting them on their cellular telephones in violation of the TCPA. The proposed No Consent Class and sub-classes are defined by Plaintiffs as follows:

No Consent Class
All persons within the United States to whose cellular telephone number Medicredit placed a debt collection related telephone call between July 14, 2015 and the date of certification through the use of any automatic telephone dialing system or artificial or prerecorded voice where such person did not provide that number in connection with the alleged debt.
Person to Notify Subclass
All persons within the United States to whose cellular telephone number Medicredit placed a debt collection related telephone call between July 14, 2015 and the date of certification through the use of any automatic telephone dialing system or artificial or prerecorded voice where such number was listed as a “person to notify” or “emergency contact.”

         Additionally, the proposed Wrong Number/Cease Contact class ...


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