United States District Court, D. South Carolina, Florence Division
R. BRYAN HARWELL, District Judge.
This matter is before the Court upon Defendant's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). See Motion to Dismiss, ECF No. 5. Having considered Plaintiff's complaint, Defendant's motion to dismiss, and Plaintiff's response, the Court denies Defendant's motion.
On December 19, 2014, Plaintiff Johnna Williams filed a complaint against Defendant Bank of America, National Association, alleging the following causes of action: (1) violation of the Telephone Consumer Protection Act (TCPA), (2) treble damages under the TCPA, (3) negligent training and supervision, (4) reckless and wanton training and supervision, and (5) invasion of privacy. See Complaint, ECF No. 1 at 3-7. The causes of action stem from Defendant's alleged conduct in making unauthorized telephone calls to Plaintiff's cellular telephone. Id.
I. Facts Alleged in the Complaint
Plaintiff is a resident and citizen of South Carolina, and Defendant is a Delaware corporation doing business in South Carolina. Complaint at ¶¶ 3-4. Beginning after January 2013, Defendant began placing telephone calls to Plaintiff's cellular phone seeking to collect an alleged debt. Id. at ¶
5. When Plaintiff answered her cell phone, an automated message told her to contact Bank of America; a live person was never available on Defendant's phone calls. Id. Plaintiff never gave her express or implied consent for Defendant to call her cell phone, and she alleges Defendant knew or should have known it was calling Plaintiff without her consent. Id. at ¶ 8. Plaintiff would return Defendant's phone calls, but Defendant refused to speak with her because the loan Defendant sought to collect was not in Plaintiff's name. Id. at ¶ 5. Plaintiff claims Defendant knew or should have known the account it was seeking to collect was not in Plaintiff's name. Id. at ¶ 8. Plaintiff represents that all calls placed by Defendant occurred through the use of an automatic telephone dialing system as defined in 47 U.S.C. § 227, that she incurred charges for incoming calls to her cell phone pursuant to 47 U.S.C § 227(b)(1), and that none of Defendant's telephone calls were for emergency purposes as defined in 47 U.S.C. § 227(b)(1)(A)(I). Id. at ¶¶ 6-7, 9.
II. Plaintiff's Causes of Action
Counts one and two of Plaintiff's complaint allege the telephone calls placed by Defendant were knowing and willful violations of the TCPA. Id. at ¶¶ 11-16. Plaintiff seeks statutory and treble damages as provided under 47 U.S.C. § 227(b)(3)(B) and (C). Id. at ¶¶ 13, 16. Count three alleges Defendant negligently breached its duty to Plaintiff to properly train and supervise its employees to ensure compliance with state and federal laws. Id. at ¶ 4. Count four adopts the same factual allegations as count three and alleges Defendant acted recklessly and wantonly in training and supervising its employees. Id. at ¶ 22. In both counts three and four, Plaintiff asserts she suffered humiliation, loss of sleep, anxiety, nervousness, physical sickness, physical and mental suffering, pain, and anxiety. Id. at ¶¶ 21, 26. Count five alleges Defendant invaded Plaintiff's privacy and caused her severe mental suffering by continuously harassing her with automated telephone calls seeking to collect a debt that she did not owe. Id. at ¶¶ 27-29. Plaintiff seeks compensatory and punitive damages for counts three through five. See Complaint, ECF No. 1 at 7.
Standard of Review
When deciding a motion to dismiss made under Federal Rule of Civil Procedure 12(b)(6), the Court must accept all well-pled facts alleged in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009). A complaint must state a "plausible claim for relief'" to survive a 12(b)(6) motion to dismiss. Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). The Court will not dismiss the plaintiff's complaint so long as she provides adequate detail about her claims to show she has a "more-than-conceivable chance of success on the merits." Owens v. Baltimore City State's Attorneys Office, 767 F.3d 379, 396 (4th Cir. 2014) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2006)). "Once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Twombly, 550 U.S. at 563. A complaint will survive a motion to dismiss if it contains "enough facts to state a claim to relief that is plausible on its face." Id. at 570.
I. Violation of the TCPA (Counts One and Two)
In seeking dismissal of counts one and two, Defendant argues Plaintiff has failed to state a claim for relief upon which relief can be granted because her complaint "contains virtually no facts" regarding Defendant's violation of the TCPA "other than conclusory restatements of the elements of the TCPA." Motion to Dismiss at 3. Defendant asserts Plaintiff has not specified the telephone number that Defendant allegedly called in violation of the TCPA, has not set forth sufficient factual allegations showing she received the calls from an automated dialing system, ...