Owens v. Starion Energy, Inc., 3:16-cv-01912

Background

Plaintiff Nancy Owens alleges Starion Energy placed multiple marketing calls in September 2016 to a telephone number she identifies as her residential/home number and which she had listed on the National Do Not Call Registry.
Owens answered a call on September 23, 2016 and requested calls stop; she later corresponded asking for proof of consent.
Starion moved to dismiss under Rule 12(b)(6) (and earlier raised standing under 12(b)(1) but conceded that argument), and also moved to strike portions of the complaint under Rule 12(f).
Defendant contends the called number is a business line (pointing to a website showing Owens’ business contact) and argues the complaint lacks specificity (dates, full number), fails to allege registry subscriber status, and insufficiently pleads willfulness for treble damages.
The Court denied the motion to dismiss and to strike, holding that: (1) whether the line is residential or a home-business line is a factual issue for discovery; (2) TCPA claims need not plead exact dates/times or full phone numbers at the pleading stage; (3) Owens has standing and adequately alleges she was the called party; and (4) allegations suffice at this stage to support a claim for willful/knowing violation for potential treble damages.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the called number is a “residential” line (home-based business issue)	The number is Owens’ home/residential number (business is home-based)	The number was held out as a business line (website/business listing) and thus not protected by TCPA	Court: question of fact; cannot resolve on 12(b)(6); deny dismissal and allow discovery
Pleading specificity (dates/times/content of calls)	Alleged multiple calls in Sept. 2016 and one specific call on Sept. 23; sufficient to plead multiple calls within 12 months under TCPA	Complaint lacks date/time/content for each call and full number, so insufficient notice	Court: detailed dates/times/content not required at pleading stage; deny dismissal
Requirement to allege registrant/subscriber status for Do Not Call listing (standing)	Owens alleges the calls were to a number she had registered and she was the called party entitled to TCPA protections	Defendant argues Owens did not allege she personally registered the number	Court: standing not limited to person who physically registered; Owens alleged she was the called party/subscriber and has statutory standing; deny dismissal
Willfulness/knowledge for treble damages	Complaint alleges number was on registry for years and Owens never removed it; alleges willful/knowing violations	Defendant: general allegation insufficient to support treble damages	Court: allegations permit inference defendant knew/should have known; bad faith not required; deny dismissal on this ground
Motion to strike: attorneys’ fees, §227(b)(1) allegations, and class definition	Plaintiff seeks fees (and references §227(b)(1)); proposes class of persons on registry called by Starion	Defendant: TCPA does not authorize fees (strike); no factual support for §227(b)(1) (prerecorded voice) and class is a potentially impermissible fail-safe class	Court: motions to strike disfavored; allow fees reference (may be addressed at certification); insufficient showing to strike §227(b)(1) references now; class issues premature—deny strike

Key Cases Cited

Ashcroft v. Iqbal, 556 U.S. 662 (plausibility standard and legal conclusions not assumed true)
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading must be plausible)
York v. Ass’n of the Bar of the City of New York, 286 F.3d 122 (accept factual allegations as true on motion to dismiss)
Leyse v. Bank of Am. Nat. Ass'n, 804 F.3d 316 (standing analysis in TCPA context; privacy interests protected)
Myers v. Hertz Corp., 624 F.3d 537 (plaintiff bears burden to show Rule 23 requirements at certification)
Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96 (common-fund fee awards at class stage)