United States District Court, D. Minnesota
Carol Maher, individually and on behalf of a class of similarly situated individuals, Plaintiff,
Sempris, LLC, Health Pure Products, LLC, John Doe, Defendants.
Alicia E. Hwang, Esq., Edelson P.C., Chicago, IL; and, Craig S. Davis, Esq., Lockridge Grindal Nauen PLLP, Minneapolis, MN, on behalf of Plaintiff.
David Jimenez-Ekman, Esq., Jenner & Block, Chicago, IL; and, Elsa M. Bullard, Esq., Faegre Baker Daniels LLP, Minneapolis, MN, on behalf of Defendant Sempris, LLC.
MEMORANDUM OPINION AND ORDER
ANN D. MONTGOMERY, District Judge.
On June 25, 2014, the undersigned United States District Judge heard oral argument on Defendant Sempris, LLC's ("Sempris") Motion to Dismiss [Docket No. 56]. Plaintiff Carol Maher ("Maher") opposes the motion. For the reasons set forth below, the motion is denied.
Maher, a resident of Georgia, responded to an infomercial for a dietary supplement sold by Health Pure Products, LLC ("Health Resource"). See Compl. [Docket No. 1]. In December 2012, Maher called the phone number displayed in Health Resource's infomercial and was connected to a live customer service representative who took Maher's order. The customer service representative was employed by Defendant John Doe, the call-center company who answered and responded to Health Resource's telephone orders. Toward the end of the conversation for the dietary supplement, the customer service representative asked Maher if she would also be interested in trying a membership program called "Taste for Savings" for an introductory fee of $1.95. Id . ¶ 38. Maher alleges the customer representative provided no clear explanation of the benefits of the program, other than that the program would provide Maher with undefined savings. Id . ¶ 39. The customer representative assured Maher, however, that she would receive information in the mail to explain all the benefits and costs of the program, as well as various gift cards and rebates for agreeing to the trial membership. Id . The representative further claimed that Maher would be able to call and cancel her membership at any time. When Maher asked the customer representative if enrollment in the program would result in recurring fees, the representative deflected the question and responded that the program information would be sent in the mail and Maher would be able to review the materials before being charged. Id . ¶ 40. Maher further alleges that she was never informed that the Taste for Savings program was not a program of Health Resources. Maher agreed to pay the introductory fee.
Taste for Savings is a membership program sold by Sempris, a Minnesota company. Id . ¶ 41. In January 2013, Sempris charged Maher $24.95 for the membership program. Maher was charged the same amount each month for five months until May 2013 when she discovered the charges and called the phone number appearing on her credit card statement. Maher informed the customer service representative that she did not agree to monthly charges, asked that the charges be refunded immediately, and attempted to cancel her membership. A few days later Maher alleges she noticed another monthly membership fee pending on her account and canceled her credit card to avoid being charged any future fees. Id . ¶ 46. Maher never received the written materials that the representative told her would describe the program in more detail, and she never received any gifts or vouchers. Id . ¶ 47. Maher claims that Sempris has deceptively enrolled thousands of subscribers and that her experience is the same as similarly situated Sempris customers.
Sempris works with third-party call-centers to sell its products. The third-party callcenters contract with Sempris to sell the memberships. But, Maher claims, Sempris does not send membership materials to the enrollees. Instead, Sempris charges these customers monthly fees until the customers realize that they are being charged for nothing. Upon information and belief, Maher alleges that similar to her experience, Sempris continues to charge customers after they have tried to cancel their membership.
A. Standard of Review
Rule 12 of the Federal Rules of Civil Procedure provides a party may move to dismiss a complaint for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). In considering a motion to dismiss, the pleadings are construed in the light most favorable to the nonmoving party, and the facts alleged in the complaint must be taken as true. Ossman v. Diana Corp. , 825 F.Supp. 870, 879-80 (D. Minn. 1993). Any ambiguities concerning the sufficiency of the claims must be resolved in favor of the nonmoving party. Ossman , 825 F.Supp. at 880. And, although the court may not consider matters outside the pleading at this stage, "documents necessarily embraced by the complaint are not matters outside the pleading." Ashanti v. City of Golden Valley , 666 F.3d 1148, 1151 (8th Cir. 2012) (quotation omitted).
Under Rule 8(a), pleadings "shall contain a short and plain statement of the claim showing that the pleader is entitled to relief." A pleading must allege "enough facts to state a claim to relief that is plausible on its face, " raising "a right to relief above the speculative level" and pushing claims "across the line from conceivable to plausible." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). In other words, "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court ...