United States District Court, S.D. Ohio, Eastern Division
D. Morrison Judge
OPINION AND ORDER
D. MORRISON UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant's Motion to
Dismiss the First Amended Complaint. (ECF No. 13). Plaintiff
filed a Memorandum in Opposition (ECF No. 17) and Defendant
filed a Reply (ECF No. 21). For the reasons set forth below,
Defendant's Motion is DENIED.
Plaintiff's Amended Complaint
Charvat filed this class action suit against Defendant LE
Energy, LLC d/b/a Utility Gas & Power for alleged
violations of the Telephone Consumer Protection Act, 47
U.S.C. § 227 et seq. (the “TCPA”).
(Amend. Compl. ¶¶ 1-2, ECF No. 7).
Amended Complaint, Charvat alleges that LE Energy made a
pre-recorded telemarketing call to his residential telephone
number on February 5, 2019. (Id. ¶¶
to Mr. Charvat, the pre-recorded message stated:
This is an important message. If you have paid your recent
bills on time you can now have a fixed rate to avoid
expensive rate increases this season. Press one to see if you
can qualify for the long term savings. Please press one now.
(Id. ¶ 30). Because the pre-recorded message
did not identify any company, Charvat pressed
“one” to speak to a live individual.
(Id. ¶ 31). When he spoke to a live person,
that person “stated his company was ‘Utility Gas
& Power, '” Charvat avers that he “was
able to identify LE Energy, which does business as Utility
Gas & Power, by feigning interest in the energy savings
telemarketing pitch that was made on the call.”
(Id. ¶¶ 32-35). The person with whom
Charvat spoke made a telemarketing pitch and tried to sell
him goods and services on the call. (Id.
¶¶ 32, 37).
further claims that “telemarketing campaigns generally
place calls to hundreds of thousands or even millions of
potential customers en masse, ” so he brought
this action on behalf of a proposed class of other persons
who received illegal telemarketing calls from LE Energy.
(Id. ¶ 3).
Standard of Review
Rule of Civil Procedure 8(a) requires a plaintiff to plead
each claim with sufficient specificity to “give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (internal quotations
omitted). A complaint which falls short of the Rule 8(a)
standard may be dismissed if it fails to state a claim upon
which relief can be granted. Fed.R.Civ.P. 12(b)(6).
To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face. A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. The
plausibility standard is not akin to a probability
requirement, but it asks for more than a sheer possibility
that a defendant has acted unlawfully. Where a complaint
pleads facts that are merely ...