United States District Court, D. Minnesota
Abbas Kazerounian, Kazerounian Law Group, APC, Costa Mesa, California. Joshua B. Swigart and Robert L. Hyde, Hyde & Swigart, San Diego, California. for Plaintiff.
Aaron D. Van Oort, Eileen M. Hunter, and Mary A. Walker, Faegre Baker Daniels LLP, Minneapolis, Minnesota. Randy M. Lebedoff, Star Tribune, Minneapolis, Minnesota. for Defendant.
MEMORANDUM OPINION AND ORDER
SUSAN RICHARD NELSON, District Judge.
This matter is before the Court on Defendant's Motion for Judgment on the Pleadings [Doc. No. 18]. For the reasons set forth below, the Court grants this motion.
Defendant, a Delaware corporation with a primary place of business in Minneapolis, Minnesota, is a media company that provides news services to thousands of consumers. (Compl. ¶ 9 [Doc. No. 1]; Answer ¶ 9 [Doc. No. 15].) Plaintiff is an individual residing in Minnesota. (Compl. ¶ 10.)
As alleged in the Complaint, Plaintiff signed up and paid for a one-year newspaper subscription offered by Defendant. (Id. ¶ 12.) In the process, Plaintiff provided Defendant with her cellular telephone number, xxx-xxx-7646 ("the 7646 number"), which appears on Defendant's Subscription Order Form. (Subscription Order Form, Ex. A to Decl. of Leita Walker [Doc. No. 21-1].) This form states that the subscription "will continue unless you [Plaintiff] notify us [Defendant] that you wish to cancel." (Id.) Plaintiff does not allege that she gave notice of cancellation. (See Compl.)
Plaintiff claims that the subscription terminated sometime before March 5, 2013, at which point she revoked any consent that Defendant may have had to contact her cellular number via an automatic telephone dialing system using an artificial or pre-recorded voice message. (Id. ¶ 12.)
On or about March 5, 2013, Defendant began calling the 7646 number. (Id. ¶ 13.) On seven different occasions in March of 2013, Defendant left pre-recorded voice messages on the 7646 number, stating that the calls were for "service verification" and that Defendant would call back later. (Id. ¶¶ 14, 15.)
On or about March 8, 2013, a Star Tribune representative spoke to Plaintiff on the 7646 number. (Id. ¶ 23.) During this call, the representative informed Plaintiff that Defendant's "records show[ed] an outstanding balance" on her subscription, and she asked Plaintiff "to pay [her] past-due balance." (Audio File, Ex. B to Walker Decl. [Doc. No. 21-2].) Plaintiff stated: "I'm in a hurry right now trying to get out the door. If you can give me a call back, like tomorrow or something, that would be wonderful." (Id.)
On July 5, 2013, Plaintiff brought the following claims against Defendant on behalf of herself and all others similarly situated: (1) negligent violations of the Telephone Consumer Protection Act of 1991 ("TCPA"), and (2) knowing or willful violations of the TCPA. (Compl. ¶¶ 43-50.) On October 14, 2013, Defendant moved for judgment on the pleadings on the ground that Plaintiff fails to state a claim upon which relief may be granted. (Def.'s Mot. for J. on the Pleadings [Doc. No. 18].) On November 4, 2013, Plaintiff opposed Defendant's motion. (Pl.'s Opp'n to Def.'s Mot. Pursuant to Fed.R.Civ.P. 12(c) [Doc. No. 27].) On November 18, 2013, Defendant filed a reply brief. (Def.'s Reply Mem. in Supp. of its Mot. for J. on the Pleadings [Doc. No. 32].) The Court heard this matter on November 25, 2013. (Court Mins. [Doc. No. 33].)
A. Standard of ...