Wagner v. CLC Resorts & Developments, Inc.
32 F. Supp. 3d 1193
M.D. Fla.2014Background
- Wagner alleges CLC and Surrey contracted with Passport to market CLC/Surrey resorts and timeshares.
- Passport placed calls using an automatic dialing system to promote the resorts.
- Wagner received several January 2014 calls from Passport soliciting Surrey/CLC products.
- Wagner did not consent to calls, and his number was listed on the National Do Not Call Registry during that period.
- Wagner amended the complaint alleging violations of TCPA §§ 227(b)(1)(A)(iii) and 227(c)(5); Defendants moved to dismiss under Rule 12(b)(6).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Wagner states a §227(b) claim against Surrey | Wagner alleges Surrey contracted with Passport and Passport called him. | Surrey argues lack of direct calls and lack of authorization to use Surrey’s name/logo. | Wagner states a §227(b) claim against Surrey. |
| Whether Wagner states a §227(b) claim against CLC | Wagner alleges CLC contracted with Passport and Passport called him. | CLC argues no direct calls or plausible reason Passport acted for CLC. | Wagner states a §227(b) claim against CLC. |
| Whether Wagner states a §227(c)(5) claim against Surrey and CLC | Multiple calls within 12 months acting on behalf of Surrey/CLC violated FCC regulations. | Defendants contend insufficient calls or improper theory. | Wagner states §227(c)(5) claims against Surrey and CLC. |
| Whether Wagner states a §227(c)(5) claim against Passport | Passport violated FCC rules by initiating telemarketing calls without proper procedures. | Passport contends only 30-day rule issue; plaintiff’s theory insufficient. | Wagner states a §227(c)(5) claim against Passport. |
| Whether the case should be dismissed as improper class action at this stage | Premature to foreclose class certification; early-stage dismissal inappropriate. | Class action certification would be improper at this stage. | Dismissal premised on class-action certification is inappropriate; denial of dismissal. |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (plausibility standard for pleading)
- Twombly v. Bell Atl. Corp., 550 U.S. 544 (U.S. 2007) (facial plausibility required; mere recitation insufficient)
- Breslow v. Wells Fargo Bank N.A., 857 F. Supp. 2d 1316 (S.D. Fla. 2012) (TCPA pleading standards and vicarious liability discussed)
- Palm Beach Golf Ctr.-Boca, Inc. v. Sarris, 981 F. Supp. 2d 1239 (S.D. Fla. 2013) (vicarious liability and agency concepts in TCPA context)
- Charvat v. GVN Michigan, Inc., 561 F.3d 623 (6th Cir. 2009) (violation of TCPA regulations supports § 227(c)(5) claim)