United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING NAMED
DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO STATE A
CLAIM ON WHICH THE COURT MAY GRANT RELIEF [DOC. 3]
MATTER comes before the Court on Named
Defendants' Motion to Dismiss for Failure to State a
Claim on which the Court May Grant Relief. [Doc. 3,
filed December 6, 2018]. Upon reviewing the
parties' briefs and the applicable law, the motion is
October 31, 2018, Plaintiff Lisa Dendy filed a complaint
against Defendant Michael J. Chartrand, Defendant Michelle
Irene Chartrand, and Defendants Jane Does 1-10. [Doc. 1.2].
Plaintiff alleges in her complaint that her cell phone number
is registered in the National Do Not Call
Registry and that Defendants repeatedly made
unwanted automated calls, or robo-calls, with prerecorded
messages using an automatic telephone dialing system
(“ATDS”) to her phone number. [Id.]
alleges that Mr. Chartrand and Ms. Chartrand have a
nationwide robo-calling scheme to telemarket cleaning and
janitorial services. [Id.] Plaintiff notes that the
telephone number that would make repeated calls to her cell
phone number is assigned to Mr. Chartrand and Ms. Chartrand.
[Id.] The complaint states that the Jane Doe
defendants are agents of Mr. Chartrand and Ms. Chartrand whom
make phone calls on behalf of Mr. Chartrand and Ms.
Plaintiff answered any of Defendants' calls, she would
hear an automated voice, and she claims that the message was
identical in each call, and that when she stopped answering
the calls, the robo-calls would leave a voicemail message.
[Id.] Plaintiff states that the number was a New
Mexico, “505” area-code number. [Id.]
Plaintiff further alleges that Defendants' robo-calls
gave her an option to press a number on her phone's
keypad to be placed on Defendants' do-not-call list
separate from the National Do Not Call Registry.
[Id.] Plaintiff states that despite this, Defendants
would continue to call her repeatedly. [Id.]
Finally, Plaintiff expressly states that she never consented
to being called by Defendants. [Id.]
claims in her complaint that these repeated calls from
Defendants are violations of federal and New Mexico law for
which she can recover damages. [Id.] Specifically,
Plaintiff claims Telephone Consumer Protection Act
(“TCPA”) Subsection (b) and (c) violations,
claims under the Unfair Trade Practices Act
(“UPA”) for violations of NMSA Section
57-12-22(A), (C)(1) and (2), claims for nuisance and trespass
to chattels, and civil conspiracy under New Mexico law, and
she seeks to hold Defendants vicariously liable.
seek to dismiss Plaintiff's complaint because she failed
to state a claim for which relief may be granted.
8(a)(2) requires a complaint to contain “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2).
Nevertheless, Rule 12(b)(6) permits the Court to dismiss a
complaint for “failure to state a claim upon which
relief can be granted.” Fed.R.Civ.P. 12(b)(6). To
survive a motion to dismiss, the complaint must have
sufficient factual matter that if true, states a claim to
relief that is plausible on its face. Ashcroft v.
Iqbal, 556 U.S. 662, 677 (2009). As such, a
plaintiff's “[f]actual allegations must be enough
to raise a right to relief above the speculative
level.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007). All well-pleaded factual allegations are
“viewed in the light most favorable to the nonmoving
party.” Brokers' Choice of Am., Inc. v. NBC
Universal, Inc., 757 F.3d 1125, 1136 (10th Cir. 2014).
In ruling on a motion to dismiss, “a court should
disregard all conclusory statements of law and consider
whether the remaining specific factual allegations, if
assumed to be true, plausibly suggest the defendant is
liable.” Kan. Penn Gaming, LLC v. Collins, 656
F.3d 1210, 1214 (10th Cir. 2011). Mere “labels and
conclusions” or “formulaic recitation[s] of the
elements of a cause of action” will not suffice.
Twombly, 550 U.S. at 555.
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.” Iqbal, 556 U.S. at 678. Plausibility
lies somewhere between possibility and probability; a
complaint must establish more than a mere possibility that
the defendant acted unlawfully. Id. (citing
Twombly, 550 U.S. at 556); see also Ridge at Red
Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir.
2007) (“[T]he mere metaphysical possibility that some
plaintiff could prove some set of facts in support of the
pleaded claims is insufficient; the complainant must give the
court reason to believe that this plaintiff has a reasonable
likelihood of mustering factual support for these
claims.”). “This requirement of plausibility
serves not only to weed out claims that do not (in the
absence of additional allegations) have a reasonable prospect
of success, but also to inform the defendants of the actual
grounds of the claim against them.” Robbins v.
Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008). The
degree of specificity “depends on context”.
Id. “Determining whether a complaint states a
plausible claim for relief will . . . be a context-specific
task that requires the reviewing court to draw on its
judicial experience and common sense.” Iqbal,
556 U.S. at 679.
Chartrand and Ms. Chartrand, as the only named defendants,
seek to dismiss this complaint for failure to state a claim
because Plaintiff uses a general label of
“Defendants” at certain sections of her complaint
to refer to both named defendants and the Jane Doe
defendants. [Doc. 3 at 3]. They argue that this is enough to
warrant dismissal of the complaint because it does not state
a plausible claim and does not give each defendant, in this
case Mr. Chartrand and Ms. Chartrand, proper notice. This is
their sole argument. The Court disagrees with Defendants.
stringent requirement to specifically name which defendant
did what to the plaintiff is a standard that tends to apply
to complex claims, such as civil rights actions. See
Collins, 656 F.3d at 1215 (explaining that the
“Twombly standard may have greater bite in the
context of a § 1983 claim against individual government
actors, because they typically include complex claims against
multiple defendants[, ]” and that it is
“important in such circumstances that the complaint
make clear exactly who is alleged to have done
what to whom, to provide each individual
with fair notice as to the basis of the claims against him or
her, as distinguished from collective allegations against the
state.” (citations and internal quotation marks
omitted)). This case does not have any complex claims.
the Court must determine plausibility with an analysis of the
elements of the claims asserted in the complaint. Khalik
v. United Air Lines, 671 F.3d 1188, 1191-92 (10th Cir.
2012) (“While the 12(b)(6) standard does not require
that Plaintiff establish a prima facie case in her complaint,
the elements of each alleged ...