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Dendy v. Chartrand

United States District Court, D. New Mexico

February 20, 2019

LISA DENDY, Plaintiff,


         THIS 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 DENIED.


         On 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[1] 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.]

         Plaintiff 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. Chartrand. [Id.]

         Whenever 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.]

         Plaintiff 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. [Id.]

         Defendants seek to dismiss Plaintiff's complaint because she failed to state a claim for which relief may be granted.


         Rule 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.

         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.” 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.


         Mr. 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.

         The 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.

         Rather, 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 ...

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