United States District Court, D. New Mexico
SID CHILDRESS, on behalf of herself and others similarly situated, Plaintiff,
LIBERTY MUTUAL INSURANCE COMPANY, Defendant.
MEMORANDUM OPINION AND ORDER
VÁZQUEZ UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Defendant's Motion to
Dismiss Plaintiff's Amended Complaint with Prejudice
[Doc. 6]. The Court, having considered the motion, briefs,
and relevant law, and being otherwise fully informed, finds
that the motion is well-taken and will be granted.
facts as alleged in the Amended Complaint are as follows. On
August 14, 2017, at approximately 10:22 a.m. MT, Plaintiff
Sid Childress received a telephone call on his cellular
phone, which is listed on the national do-not-call registry.
Doc. 1-1 at ¶ 10. According to Plaintiff's caller
identification, the telephone call came from telephone number
505-780-9813. Id. When Plaintiff answered the call,
“he was greeted by a machine that played a pre-recorded
message.” Id. The message indicated that the
caller was “Jason” from “Cheap Insurance
Experts.” Id. at ¶ 12. After listening to
the prerecorded message and answering questions, Plaintiff
was transferred to a “live person telemarketer employed
by Defendant [Liberty Mutual Insurance Company] who
identified himself as “Steve Ross” and indicated
that he was located at a call center in Dallas, Texas.
Id. at ¶ 11. Plaintiff began asking
“Steve Ross” “questions related to
Plaintiff's interest in why he was being
robo-called” and who the telemarketer was. Id.
at ¶ 14. “Steve Ross” then “hung up
the phone on Plaintiff.” Id.
later, Plaintiff filed in state court his pro se
Complaint for Violations of the Telephone Consumer Protection
Act, the Unfair Practices Act and Torts against Defendant.
Plaintiff amended the complaint once as a matter of right on
September 13, 2017, to correctly name Defendant and to add
conduct by “lead generators” for his claim of
vicarious liability. Defendant removed the case to this Court
on October 19, 2017.
November 20, 2017, Defendant filed the instant motion to
dismiss Plaintiff's Amended Complaint in its entirety.
Doc. 6. Thereafter, Plaintiff retained counsel, who entered
an appearance on December 7, 2017. Doc. 14. On December 8,
2017, Plaintiff filed both a response in opposition to
Defendant's motion, Doc. 19, and a motion for leave to
file a second amended complaint. Doc. 17.
Court referred Plaintiff's motion for leave to amend to
Magistrate Judge Karen B. Molzen. On May 1, 2018, Judge
Molzen entered her Proposed Findings and Recommended
Disposition (“PFRD”). Doc. 36. In the PFRD, the
Court found that “Plaintiff's untimely proposed
Second Amended Complaint represents the type of ‘moving
target' that would introduce undue delay.”
Id. at 6. The Court noted that Plaintiff - who
“is not the typical pro se litigant”, but rather
is “well-versed in pursuing claims involving the
TCPA” - “clearly knew all of the information -
factual and legal - on which the proposed changes [were]
based.” Id. Further, the Court found that
Defendant has already expended considerable fees and cost in
pursuing its motion to dismiss, and that “the proposed
expansion of this lawsuit from a single, offending phone call
to potential nationwide class action, would require even
greater resources to bring the case to a conclusion.”
Id. No objections were filed to the PFRD, and on
June 4, 2018, this Court entered an Order adopting the PFRD.
Doc. 38. Thereafter, Defendant filed its reply in further
support of its motion to dismiss. Doc. 40.
Rule 12(b)(6), a Court may dismiss a complaint for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). “The nature of a
Rule 12(b)(6) motion tests the sufficiency of the allegations
within the four corners of the complaint.” Mobley
v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). When
considering a Rule 12(b)(6) motion, the Court must accept as
true all well-pleaded factual allegations in the complaint,
view those allegations in the light most favorable to the
non-moving party, and draw all reasonable inferences in the
plaintiff's favor. Smith v. United States, 561
F.3d 1090, 1097 (10th Cir. 2009), cert. denied, 130
S.Ct. 1142 (2010).
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.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).
“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.” Id. “Where a
complaint pleads facts that are ‘merely consistent
with' a defendant's liability, it ‘stops short
of the line between possibility and plausibility of
entitlement to relief.'” Id. (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557
Court in Iqbal identified “two working
principles” in the context of a motion to dismiss.
Id. First, “the tenet that a court must accept
as true all of the allegations contained in a complaint is
inapplicable to legal conclusions. Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. Accordingly,
Rule 8 “does not unlock the doors of discovery for a
plaintiff armed with nothing more than conclusions.”
Id. at 678-79. “Second, only a complaint that
states a plausible claim for relief survives a motion to
dismiss.” Id. at 679; see Twombly,
550 U.S. at 570 (holding that a plaintiff must
“nudge” her claims “across the line from
conceivable to plausible”). Accordingly, “where
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has
alleged - but it has not shown - that the pleader is entitled
to relief.” Id. (citation omitted).
keeping with these two principles, the Court explained,
a court considering a motion to dismiss can choose to begin
by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.
When there are well-pleaded factual allegations, a court
should assume their veracity and then determine ...