United States District Court, D. Maryland
JAMAL SPRYE, For himself and on behalf of all others similarly situated, Plaintiff,
ACE MOTOR ACCEPTANCE CORP., Defendant.
Xinis United States District Judge
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.
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.
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
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.
STANDARD OF REVIEW
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).
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.
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.”).
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).
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.
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