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Sprye v. Ace Motor Acceptance Corp.

United States District Court, D. Maryland

May 3, 2017

JAMAL SPRYE, For himself and on behalf of all others similarly situated, Plaintiff,
v.
ACE MOTOR ACCEPTANCE CORP., Defendant.

          MEMORANDUM OPINION

          Paula Xinis United States District Judge

         Pending in this case is Defendant Ace Motor Acceptance Corporations' motion to dismiss or, in the alternative, motion for summary judgment. ECF No. 19. The issues are fully briefed and the Court now rules pursuant to Local Rule 105.6 because no hearing is necessary. For the reasons stated below, Defendant's motion to dismiss is granted in part and denied in part.

         I. BACKGROUND

         Defendant Ace Motor Acceptance Corporation (“Ace”) is a North Carolina-based company that issues car loans. Plaintiff Jamal Sprye's sister, Patricia Sprye, took out a car loan with Ace and listed Plaintiff as a reference on the loan application. See Complaint, ECF No. 2 at 6. Plaintiff's sister eventually fell behind on her loan repayments. After Ace was unable to reach Patricia Sprye, the company began calling Plaintiff, as Patricia's reference, on his cellular phone in order to determine Patricia's whereabouts. Id. According to the Complaint, a representative of Ace called Plaintiff at least twelve times between February 2013 and May 2014 using a Voice over Internet Protocol System (“VoIP) telephone system. Id. The Complaint also alleges that, unbeknownst to Plaintiff, Ace recorded these calls and downloaded the recordings onto servers located throughout the world. Id.

         On July 22, 2016, Plaintiff filed a four-count Complaint individually and on behalf of others similarly situated in the Circuit Court for Montgomery County. Plaintiff asserts the following claims: (1) violations of the federal Telephone Consumer Protection Act of 1991 (“TCPA”), §3(a), 47 U.S.C. § 227(b)(1)(A)(iii); (2) knowing or willful violations of the TCPA, §3(a), 47 U.S.C. § 227(b)(3); (3) violations of the Maryland Telephone Consumer Protection Act (“Maryland TCPA”), Md. Code Ann. Com. Law §§ 14-3201 et seq.; and (4) violations of the Maryland Wiretapping and Electronic Surveillance Act (“Maryland Wiretapping Act”), Md. Code, Cts. & Jud. Proc., §§ 10-401 et seq. See ECF No. 2 at 12-14. The Complaint delineates two putative classes and one subclass. The “TCPA Class” includes “[a]ll persons within the United States who, within the four years preceding the date of filing this Complaint 1) received a non-emergency telephone call from Ace 2) to a cellular telephone 3) through the use of an automatic telephone dialing system.” Id. at 8. The “MDTCPA Subclass” includes “[a]ll persons within the State of Maryland who, within the three years preceding the date of filing this Complaint 1) received a non-emergency telephone call from Ace 2) to a cellular telephone 3) through the use of an automatic telephone dialing system.” The “Md. Wiretap Act Class” includes “[a]ll persons within the State of Maryland who, within the three years preceding the date of filing this Complaint 1) received a telephone call from Ace's collections department 2) that was recorded by Ace.” Id.

         On September 6, 2016, Ace timely removed Plaintiff's action to this Court based on federal question jurisdiction pursuant to 28 U.S.C. § 1331 and under the Class Action Fairness Act pursuant to 28 U.S.C. § 1332(d). ECF No. 1. On October 7th, Ace filed a motion to dismiss or, in the alternative, motion for summary judgment. ECF No. 19.

         II. STANDARD OF REVIEW

         Ace's motion is styled as a Motion to Dismiss, or in the Alternative, for Summary Judgment, and it has attached additional materials to its motion. If the Court considers these materials it must treat the motion as one for summary judgment. Fed.R.Civ.P. 12(d). Before the Court treats a motion to dismiss as a motion for summary judgment, “[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Id. By styling a motion as a “Motion to Dismiss, or in the Alternative, for Summary Judgment, ” as Ace did here, and attaching additional materials to its motion, the Plaintiff is, of course, aware that materials outside the pleadings are before the Court, and the Court can treat the motion as one for summary judgment. See Laughlin v. Metropolitan Wash. Airports Auth., 149 F.3d 253, 260-61 (4th Cir. 1998). However, summary judgment should not be granted if the nonmoving party has not had the opportunity to discover information that is essential to his opposition to the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5. (1987). If the nonmoving party feels that the motion is premature, that party can invoke Rule 56(d) of the Federal Rules of Civil Procedure. See Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986). Under Rule 56(d), the Court may deny a motion for summary judgment if the non-movant shows through an affidavit that, for specified reasons, he cannot properly present facts, currently unavailable to him, that are essential to justify an opposition. Fed.R.Civ.P. 56(d).

         Here, Plaintiff's counsel has supplied an affidavit pursuant to Rule 56(d) explaining that he cannot properly present facts in order to oppose Ace's motion for summary judgment without discovery. See ECF No. 23-3. Specifically, Plaintiff's counsel attests that he will need to depose several of Ace's employees to resolve factual disputes regarding the type of telephone system Ace used to call Plaintiff and that system's capabilities as well as the procedure Ace's employees went through in making the calls to Plaintiff. Because Plaintiff has attested that he has not had the opportunity to discover information that is essential to his opposition to the motion, the Court will not consider the materials attached to Ace's motion and will treat this motion as one to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

         To survive a motion to dismiss invoking Rule 12(b)(6), “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) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555) (“a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do.”).

         Rule 12(b)(6)'s purpose “is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006) (citation and internal quotation marks omitted). When deciding a motion to dismiss under Rule 12(b)(6), a court “must accept as true all of the factual allegations contained in the complaint, ” and must “draw all reasonable inferences [from those facts] in favor of the plaintiff.” E.I du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (citations and internal quotation marks omitted). The Court need not, however, accept unsupported legal allegations, see Revene v. Charles County Comm'rs, 882 F.2d 870, 873 (4th Cir. 1989), legal conclusions couched as factual allegations, Papasan v. Allain, 478 U.S. 265, 286 (1986), or conclusory factual allegations devoid of any reference to actual events. United Black Firefighters of Norfolk v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979).

         III. ANALYSIS

         A motion for class certification has not been filed in this case, but nothing explicit in Rule 23 that requires a determination on class certification prior to decisions on other motions. “While it is prudent in some cases to consider class certification first, it is within the court's discretion to determine that judicial economy is better served by an early decision on the merits.” White v. Bank of Am., N.A., No. CCB-10-1183, 2012 WL 1067657, at *4 (D. Md. Mar. 27, 2012). Here, Plaintiff does not challenge the propriety of deciding Ace's motion to dismiss before the class action is certified. Moreover, and as more fully explained below, considering the merits of this case first will protect both parties from needless expenditure of both time and money. White, 2012 WL 1067657, at *4.

         Federal courts may only adjudicate the rights of putative class members upon certification of that class under Federal Rule of Civil Procedure 23. Partington v. Am. Int'l Specialty Lines Ins. Co., 443 F.3d 334, 340 (4th Cir. 2006) (citing Washington v. Finlay, 664 F.2d 913, 928 (4th Cir.1981) (noting that members of an uncertified putative class are not bound by, and obtain no legal benefit from, a judgment on the merits)). Therefore, at this stage, the Court will treat this “case as one brought by the named plaintiffs individually, not as members of a class.” Kaplan v. Utilicorp United, Inc., 9 ...


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