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Fitzhenry v. The Independent Order of Foresters and Thad Michael Sipple

United States District Court, D. South Carolina, Charleston Division

June 15, 2015

MARK FITZHENRY, individually and on behalf of a class of all persons and entities similarly situated, Plaintiff,
v.
THE INDEPENDENT ORDER OF FORESTERS and THAD MICHAEL SIPPLE, Defendants.

ORDER

DAVID C. NORTON, District Judge.

This matter is before the court on a motion for judgment on the pleadings filed by defendant Independent Order of Foresters ("Foresters")[1] and a motion for judgment on the pleadings filed by defendant Thad Michael Sipple ("Sipple"). For the reasons set forth below, the court grants both motions.

I. BACKGROUND

Plaintiff Mark Fitzhenry ("Fitzhenry") alleges that on June 17, 2014, he received a telephone call in which the following prerecorded message was played:

Hello, this is a benefit information update regarding a new state-approved funeral insurance program that is now available in your state. The state-approved and state-regulated funeral insurance program will pay up to $35, 000 tax-free for your burial and final expenses with no health questions and no waiting period. To receive this information, please press the 1 key on your phone now. To be added to our no-calls list, press 9 now, but for more information, please press the 1 key now.

Compl. ¶¶ 34-35.

When Fitzhenry spoke with a representative, the representative informed him that he was calling from the company Savant Insurance Solutions. Id . ¶ 36. Sipple owns and operates Savant Insurance Solutions. Id . ¶ 37. Sipple later called Fitzhenry and informed him that the call was being made to promote Foresters. Id . ¶ 38. Fitzhenry alleges that he had neither provided express written consent to receive the call nor done business with any of the defendants. Id . ¶ 39.

On September 18, 2014, Fitzhenry filed this action alleging violations of the Telephone Consumer Protection Act ("TCPA"). On January 13, 2015, Foresters filed a motion for judgment on the pleadings. The next day, Sipple also filed a motion for judgment on the pleadings. Fitzhenry responded to both motions on February 9, 2015. Foresters and Sipple each filed a reply on February 20, 2015. These matters have been fully briefed and are ripe for the court's review.

II. STANDARD

Federal Rule of Civil Procedure 12(c) provides that "[a]fter the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings." Courts follow "a fairly restrictive standard" in ruling on 12(c) motions, as "hasty or imprudent use of this summary procedure by the courts violates the policy in favor of ensuring to each litigant a full and fair hearing on the merits of his or her claim or defense." 5C Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure § 1368 (3d ed. 2011). Ultimately, "a defendant may not prevail on a motion for judgment on the pleadings if there are pleadings that, if proved, would permit recovery for the plaintiff." BET Plant Servs., Inc. v. W.D. Robinson Elec. Co., 941 F.Supp. 54, 55 (D.S.C. 1996).

"[A] Rule 12(c) motion for judgment on the pleadings is decided under the same standard as a motion to dismiss under Rule 12(b)(6)." Deutsche Bank Nat'l Trust Co. v. I.R.S., 361 F.Appx. 527, 529 (4th Cir. 2010); see also Burbach Broad. Co. v. Elkins Radio, 278 F.3d 401, 405 (4th Cir. 2002). Thus, in order to survive a motion for judgment on the pleadings, the complaint must contain sufficient facts "to raise a right to relief above the speculative level" and "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). In reviewing the complaint, the court accepts all well-pleaded allegations as true and construes the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff. Venkatraman v. REI Sys., Inc., 417 F.3d 418, 420 (4th Cir. 2005). "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009).

III. DISCUSSION

Defendants argue that they are entitled to judgment on the pleadings because Foresters is a nonprofit organization exempt from the TCPA.[2] Foresters' Mot. 5.

Title 47 U.S.C. § 227(b)(1)(B) makes it unlawful for a person to "initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by rule or order by the [Federal Communications Commission ("FCC")] under paragraph (2)(B)." The TCPA provides a private right of action for any violation of this provision and permits the recovery of the greater of $500 or actual losses, with the potential for treble damages if a court determines that the violation was wilful. Id . § 227(b)(3). In enacting the TCPA, Congress provided that the FCC may exempt certain calls-including "calls that are not made for a commercial purpose"-from the requirements of § 227(b)(1)(B). Id . § 227(b)(2)(B). In response, the FCC issued a regulation which created several exceptions to the ...


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