United States District Court, D. South Carolina, Charleston Division
County of Dorchester, South Carolina, and Town of Summerville, South Carolina, Plaintiffs,
AT&T Corp. and Bellsouth Telecommunications, LLC, Defendants.
ORDER AND OPINION
RICHARD MARK GERGEL UNITED STATES DISTRICT COURT JUDGE
the Court is Defendants' joint partial motion to dismiss
the Complaint and to strike the class allegations. (Dkt. No.
14.) For the reasons set forth below, the motion is granted
in part and denied in part.
Act authorizes local governments, such as Plaintiffs, the
County of Dorchester and the Town of Summerville, to adopt an
ordinance imposing monthly charges on telephone consumers in
order to fund local 911 call centers. See S.C. Code
Ann. § 23-47-10 et seq. Plaintiffs adopted such
ordinances. See Dorchester Cnty. Ord. §
12-20(2). (Dkt. No. 1 ¶ 2, No. 1-1.) The companies
providing telephone service to consumers in the jurisdiction
bill the 911 charges to their consumers, collect the charges
from the consumers, and remit the amount to the local
government minus a 2% administrative fee. See S.C.
Code Ann. §§ 23-47-40, 50.
their class action Complaint, Plaintiffs allege that
Defendants violate the 911 Act, among other claims, by
under-charging their consumers the 911 charge and, as a
result, under-remitting the charge to Plaintiffs, which
results in inadequately funded 911 call centers and a
potential public safety concern. Plaintiffs seek to enforce
their implied private rights of action under the 911 Act and
bring claims for (i) violation of the 911 Act, (ii) breach of
statutory duty imposed by the 911 Act, (iii) breach of
fiduciary duty imposed by the 911 Act, (iv) negligence and
negligence per se, (v) constructive fraud (all as to
Plaintiffs and the class), and (vi) violation of the South
Carolina Unfair Trade Practices Act (as to Plaintiffs only).
Plaintiffs also seek a declaratory judgment, permanent
injunction and punitive damages (each as to Plaintiffs and
the class). (Dkt. No. 1 ¶¶ 70-135.)
Motion to Dismiss Pursuant to Rule 12(b)(6)
12(b)(6) of the Federal Rules of Civil Procedure permits the
dismissal of an action if the complaint fails "to state
a claim upon which relief can be granted." A motion to
dismiss tests the legal sufficiency of the complaint and
"does not resolve contests surrounding the facts, the
merits of the claim, or the applicability of defenses. . . .
Our inquiry then is limited to whether the allegations
constitute a short and plain statement of the claim showing
that the pleader is entitled to relief." Republican
Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir.
1992) (internal quotation marks and citation omitted). On a
Rule 12(b)(6) motion, the Court is obligated to "assume
the truth of all facts alleged in the complaint and the
existence of any fact that can be proved, consistent with the
complaint's allegations." E. Shore Mkts., Inc.
v. J.D. Assocs. Ltd. P 'ship, 213 F.3d 175, 180 (4th
Cir. 2000). Although the Court must accept the facts in a
light most favorable to the Plaintiff, the Court "need
not accept as true unwarranted inferences, unreasonable
conclusions, or arguments." Id.
to survive a motion to dismiss the complaint must provide
enough facts to '"state a claim to relief that is
plausible on its face.'" Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)); see also
Fed. R. Civ. P. 8(a)(2). Although the requirement of
plausibility does not impose a probability requirement at
this stage, the complaint must show more than a "sheer
possibility that a defendant has acted unlawfully."
Iqbal, 556 U.S. at 678. A complaint has "facial
plausibility" where the pleading "allows the court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged." Id. A complaint
alleging fraud or mistake, by contrast, "must state with
particularity the circumstances" constituting the fraud.
Fed.R.Civ.P. 9(b). The circumstances of the fraud are
"the time, place, and contents of the false
representations, as well as the identity of the person making
the misrepresentations and what he obtained thereby."
Weidman v. Exxon Mobil Corp., 776 F.3d 214, 219 (4th
Cir. 2015) (internal quotation marks omitted). A plaintiff
claiming constructive fraud may allege that the defendant
knew or should have known the falsity of its
misrepresentations; alleging intent to deceive or actual
dishonesty is not required. See, e.g., Cheney Bros. Inc.
v. Batesville Casket Co., Inc., 47 F.3d 111, 114 (4th
Cir. 1995); Pitts v. Jackson Nat. Life Ins. Co., 574
S.E.2d 502, 509 (S.C. 2002).
plaintiff alleging fraud is held to a higher standard and
"must state with particularity the circumstances"
constituting the fraud. Fed.R.Civ.P. 9(b). The circumstances
of the fraud are "the time, place, and contents of the
false representations, as well as the identity of the person
making the misrepresentations and what he obtained
thereby." Weidman v. Exxon Mobil Corp., 116
F.3d 214, 219 (4th Cir. 2015) (internal quotation marks
omitted). A plaintiff claiming constructive fraud may allege
that the defendant knew or should have known the falsity of
its misrepresentations; alleging intent to deceive or actual
dishonesty is not required. Cheney Bros. Inc. v.
Batesville Casket Co., Inc., 47 F.3d 111, 114 (4th Cir.
1995); see also Pitts v. Jackson Nat. Life Ins. Co.,
574 S.E.2d 502, 509 (S.C. 2002).
Motion to Strike Class Action Allegations Pursuant to Rule
12(f) of the Federal Rules of Civil Procedure provides that
"the court may strike from a pleading any insufficient
defense or any redundant, immaterial, impertinent, or
scandalous matter." Fed.R.Civ.P. 12(f). A motion to
strike class allegations "ask[s], in other words, that
the Court preemptively terminate the class aspects of this
litigation, solely on the basis of what is alleged in the
complaint, and before plaintiffs are permitted to complete
the discovery to which they would otherwise be entitled on
questions relevant to class certification. Defendants'
contention is, in effect, that there is no set of facts
plaintiffs could adduce under which they could meet the
requirements for class certification of Rule 23[.]"
Bryant v. Food Lion, Inc., 774 F.Supp. 1484, 1495
(D.S.C. 1991). "Rule 12(f) empowers courts to strike
immaterial matter to promote judicial efficiency and avoid
needless expenditure of time and money." Gibson v.
Confie Ins. Grp. Holdings, Inc., No. 2:16-cv-02872-DCN,
2017 WL 2936219, at *12 (D.S.C. July 10, 2017). "[S]uch
motions are to be granted infrequently" and are reviewed
for abuse of discretion: "decisions that are reasonable,
that is, not arbitrary, will not be overturned."
Renaissance Greeting Cards, Inc. v. Dollar Tree Stores,
Inc., 227 Fed.Appx. 239, 246-47 (4th Cir. 2007) (quoting
Seay v. TVA, 339 F.3d 454, 480 (6th Cir. 2003)).
a motion to dismiss class allegations, the defendants have
the burden of demonstrating from the face of the
plaintiffs' complaint that it will be impossible to
certify the classes alleged by the plaintiffs regardless of
the facts the plaintiffs may be able to prove, analogous to
the standard of review for motions brought pursuant to Rule
12(b)(6)." Mungo v. CUNA Mut. Ins. Soc, No.
0:11-464-MBS, 2012 WL 3704924, at *4 (D.S.C. Aug. 24, 2012)
(citing Bryant, 774 F.Supp. 1484 at 1495); see
also Whitt v. Seterus, Inc., No. 3:16-2422-MBS, 2017 WL
1020883, at *2 (D.S.C. Mar. 16, 2017); Adams v. Air
Methods Corp., No. 3:15-cv- 1683-TLW, 2016 WL 7115905,
at *2 (D.S.C. Aug. 12, 2016). "A court may grant a
motion to strike class allegations where the pleading makes
clear that the purported class cannot be certified and no
amount of discovery would change that determination."
Waters v. Electrolux Home Prod., Inc., No.
5:13-cv-0151, 2016 WL 3926431, at *4 (N.D. W.Va. July 18,