Pascal v. Arms

Background

Lawrence Pascal brought a proposed class action against Concentra, Inc. under the Telephone Consumer Protection Act, 47 U.S.C. § 227. Concentra moved to dismiss the second amended complaint under Federal Rule of Civil Procedure 12(b)(6), sought a more definite statement under Rule 12(e), and asked the court to strike the class allegations under Rule 12(f) and Rule 23(c)(1)(A).

The second amended complaint changed only the class definition. It removed language about promoting Concentra’s services and language concerning consent, to address concerns that the proposed class might be an impermissible “failsafe” class. The parties had already begun discovery, and Concentra had previously answered substantially similar allegations.

Rule 12(b)(6) motion

The court denied Concentra’s Rule 12(b)(6) challenges. A Rule 12(b)(6) motion tests whether the complaint legally states a claim for relief. The court explained that Concentra’s challenges were not based on new material in the second amended complaint. Because Concentra had not raised those objections earlier, the court held that they had been waived.

The court also declined to consider evidence that Concentra said showed Pascal’s wife had consented to receive texts about possible employment opportunities at the telephone number where Pascal received the text underlying his claim. The court found that the evidence was not referenced in the second amended complaint. Considering it would have converted the motion into a summary-judgment motion, which the court found premature.

Rule 12(e) motion

The court denied Concentra’s request for a more definite statement. Rule 12(e) permits that relief when a pleading is so vague or ambiguous that the opposing party cannot reasonably prepare a response. The court found that standard was not met, particularly because Concentra had already answered virtually the same allegations in the earlier complaint.

Motion to strike class allegations

The court also denied Concentra’s request to strike the class allegations. Concentra argued that Pascal was not typical of the proposed class and was not an adequate representative because, according to Concentra, he knew his wife had consented to receive the text. Concentra also argued that the proposed class would create burdensome and unmanageable consent-related discovery and litigation.

The court found that these arguments depended on disputed evidence about whether Pascal’s wife consented. The court concluded that the issues were not properly resolved under Rule 12(f), which allows a court to remove certain improper material from a pleading. Instead, the court said the issues should be addressed at the class-certification stage, after the parties had a full opportunity to conduct discovery.

Disposition

The court denied Concentra’s motion to dismiss, denied its request for a more definite statement, and denied its request to strike the class allegations. Chief Magistrate Judge C. Spero issued the order. The opinion does not decide whether Pascal will ultimately prevail on the Telephone Consumer Protection Act claim or whether the proposed class will be certified.