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Charvat v. Le Energy, LLC

United States District Court, S.D. Ohio, Eastern Division

August 19, 2019

PHILIP CHARVAT, Plaintiff,
v.
LE ENERGY, LLC d/b/a UTILITY GAS & POWER, Defendant.

          Sarah D. Morrison Judge

          OPINION AND ORDER

          SARAH D. MORRISON UNITED STATES DISTRICT JUDGE

         This 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.

         I. Plaintiff's Amended Complaint

         Philip 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).

         In his Amended Complaint, Charvat alleges that LE Energy made a pre-recorded telemarketing call to his residential telephone number on February 5, 2019. (Id. ¶¶ 28-30).

         According 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).

         Charvat 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).

         II. Discussion

         A. Standard of Review

         Federal 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 ...

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