Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lindenbaum v. CVS Health Corp.

United States District Court, N.D. Ohio

January 22, 2018

SHARI LINDENBAUM, Plaintiff,
v.
CVS HEALTH CORPORATION, Defendant.

          OPINION & ORDER [Resolving Doc. 10]

          JAMES S. GWIN UNITED STATES DISTRICT JUDGE

         Plaintiff Shari Lindenbaum sued Defendant CVS Health Corporation for violations of the Telephone Consumer Protection Act (TCPA).[1] Lindenbaum's complaint seeks class certification but the Court has not certified any class. Defendant now moves for judgment on the pleadings.[2]Alternatively, Defendant moves to stay the case until the D.C. Circuit rules on the interpretation of TCPA provisions that it argues are relevant to this suit.[3]

         For the following reasons, the Court GRANTS Defendant's motion for judgment on the pleadings. As a result, the Court dismisses Defendant's motion for a stay as MOOT.

         I. BACKGROUND

         Plaintiff alleges that Defendant CVS Health Corporation made at least six prerecorded prescription reminder calls to her cellphone.[4] Plaintiff allegedly received these calls between February 2017 and March 2017 from Defendant's Shaker Heights, Ohio retail pharmacy.[5]

         Plaintiff also alleges that she never provided “prior express written consent” to Defendant to receive the prerecorded calls.[6] She believes that she received these calls from Defendant because she has a recycled cellphone number.[7] She believes that Defendant's calls are intended for the previous subscriber of her cellphone number.[8] Plaintiff alleges that her cellphone number has been registered on the National Do Not Call Registry since December 17, 2004.[9]

         On behalf of herself and a class yet to be certified, Plaintiff brings two counts of TCPA violations.[10] The Court previously denied Plaintiff's motion to strike fifteen of Defendant's affirmative defenses.[11]

         The Court now addresses Defendant's motion for judgment on the pleadings. Defendant argues that Plaintiff's claims should be dismissed because (1) the Court does not have personal jurisdiction over Defendant; (2) the alleged calls are exempted from liability under TCPA's “emergency purposes” exception; and (3) Plaintiff fails to allege the necessary elements of a TCPA violation.[12] Alternatively, Defendant moves to stay the case until the D.C. Circuit rules on the interpretation of TCPA provisions that it argues are dispositive to this case.[13]

         II. LEGAL STANDARD

         On a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c), the Court employs the same standard as a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6).[14] Thus, “‘[f]or purposes of a motion for judgment on the pleadings, all well-pleaded material allegations of the pleadings of the opposing party must be taken as true, and the motion may be granted only if the moving party is nevertheless clearly entitled to judgment.'”[15] The plaintiff need not try to prove her case in the complaint. But there must be “more than a sheer possibility that the defendant has acted unlawfully.”[16]

         III. ANALYSIS

         Assuming the Court could exercise personal jurisdiction over Defendant CVS Health Corporation, the Court grants Defendant's motion for judgment on the pleadings. The calls at issue fall under TCPA's “emergency purposes” exception and are therefore exempt from liability.

         47 U.S.C. § 227(b)(1)(A) exempts from liability “a call made for emergency purposes.” 47 C.F.R. § 64.1200(f)(4) defines “emergency purposes” as “calls made necessary in any situation affecting the health and safety of consumers.” Plaintiff generally alleges that CVS incorrectly made pharmacy reminder calls to Plaintiff's phone. Plaintiff says CVS made the reminder calls to a CVS customer's cellphone number but that cellphone number had been recycled and says Plaintiff had no relation with the CVS customer who had formerly used the recycled cellphone number.

         The calls here were made for the “health and safety of consumers.” In most cases, information about where, when, and how to refill a prescription concerns the health and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.