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Mays v. Credit One Bank, N.A.

United States District Court, S.D. Indiana, Indianapolis Division

September 1, 2017

ROBERT ADDISON LAMONT MAYS, Plaintiff,
v.
CREDIT ONE BANK, N.A., TPUSA-FHCS, INC., FIRST CONTACT LLC, Defendants.

          ENTRY ON MOTION TO DISMISS AND ALTERNATIVE MOTION TO STAY

          TANYA WALTON PRATT, JUDGE UNITED STATES DISTRICT COURT

         Before the Court is a Motion to Dismiss filed by Defendants Credit One Bank, N.A. (“Credit One”) and First Contact LLC (“First Contact”) (collectively, “Defendants”), pursuant to Federal Rules of Civil Procedure 12(b)(1) and (h)(3). (Filing No. 50.) On December 13, 2016, after receiving twenty-four unconsented, automated calls from the Defendants, Plaintiff Robert Addison Lamont Mays (“Mays”) filed a Second Amended Complaint, alleging violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227(b)(1)(A). (Filing No. 44.) Defendants move to dismiss Mays' TCPA claim for lack of standing. In the alternative, Defendants request that the Court stay litigation. For the following reasons, the Court DENIES the Motion to Dismiss and DENIES the alternative motion to stay litigation.

         I. BACKGROUND

         The following facts are not necessarily objectively true, but as required when reviewing a motion to dismiss, the Court accepts as true all factual allegations in the Complaint and draws all inferences in favor of Mays as the non-moving party. See Bielanski v. County of Kane, 550 F.3d 632, 633 (7th Cir. 2008).

         This case derives from Defendants contacting the wrong person through automated calls. At some point prior to mid-2015, Mays' father opened a credit card account with Credit One. It is unclear whether Mays' father listed Mays' cellphone number as a source of contact but, for approximately three weeks between June 12, 2015 and July 6, 2015, the Defendants used an Automatic Telephone Dialing System (“ATDS”) to call Mays' cell phone twenty-four times. Mays informed Defendants that he did not maintain a Credit One account and that he was not the person Defendants sought to contact. Nonetheless, Defendants continued to contact Mays.

         Mays filed an action in this court on May 9, 2016 and On December 13, 2016, filed a Second Amended Complaint (the operative complaint), asserting violation of the TCPA, which deems it unlawful:

for any person within the United States, or any person outside the United States if the recipient is within the United States--to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice…to any telephone number assigned to a…cellular telephone service….

47 U.S.C.A. § 227 (b)(1)(A)(iii) (emphasis added). Mays contends that he did not consent to Defendants contacting him and that the automated calls caused him to suffer emotional distress, as well as intruded upon his privacy. (Filing No. 44.)

         II. LEGAL STANDARD

         A motion to dismiss under Rule 12(b)(1) challenges the court's subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). The burden of proof is on the plaintiff, the party asserting jurisdiction. United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir. 2003), overruled on other grounds by Minn-Chem, Inc. v. Agrium, Inc., 683 F.3d 845 (7th Cir. 2012) (en banc). “The plaintiff has the burden of supporting the jurisdictional allegations of the complaint by competent proof.” Int'l Harvester Co. v. Deere & Co., 623 F.2d 1207, 1210 (7th Cir. 1980).

         “When ruling on a motion to dismiss for lack of subject matter jurisdiction under [Rule 12(b)(1)], the district court must accept as true all well-pleaded factual allegations, and draw reasonable inferences in favor of the plaintiff.” Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir. 1995) (internal citation omitted). Furthermore, “[t]he district court may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.” Id. (internal citation and quotation marks omitted). “If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3).

         III. DISCUSSION

         Defendants move to dismiss the Second Amended Complaint under Rule 12(b)(1), contending Mays lacks standing to assert a TCPA claim because Mays failed to allege any concrete and actual injury. In the alternative, Defendants request that the Court stay litigation until the United States Court of Appeals for the District of Columbia Circuit issues an order clarifying issues that are allegedly critical to this case. The Court addresses each motion in turn.

         A. ...


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