Mannacio v. AlphaCore Capital LLC

Background

Eugene Mannacio brought a proposed class action against AlphaCore Capital LLC under the Telephone Consumer Protection Act, a federal law regulating certain telephone solicitations. He alleged that AlphaCore violated a related federal regulation by making at least two telephone solicitations within a 12-month period to his number, which he alleged had been listed on the national do-not-call registry since 2003.

Mannacio alleged that AlphaCore called him twice on December 2, 2020. He said he ended the first call because he was not interested and that AlphaCore called back to ask whether he or his wife were interested in AlphaCore’s investment services.

Motion to dismiss

AlphaCore moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which allows dismissal when a complaint does not state a legally sufficient claim. AlphaCore argued that Mannacio had not alleged enough facts to show that either call was a telephone solicitation, including because he had not alleged that AlphaCore marketed a specific investment. AlphaCore also argued that the first call was disconnected without discussion and that the second call was merely informational.

The court rejected those arguments at the pleading stage. Viewing the allegations in the light most favorable to Mannacio, the court concluded that his decision to end the first call because he was not interested suggested that he had discerned the call’s purpose. The court also found that the allegations concerning the second call adequately indicated that AlphaCore was trying to sell investment services. The second call’s context and its close timing after the first call further supported a reasonable inference that both calls were intended to encourage the purchase of investment services.

The court held that the complaint adequately alleged two telephone solicitations within a 12-month period to a number on the national do-not-call registry. It therefore denied AlphaCore’s motion to dismiss.

Motion to strike

AlphaCore alternatively moved under Federal Rule of Civil Procedure 12(f) to strike material from the complaint. A motion to strike seeks removal of matter that is insufficient, redundant, immaterial, impertinent, or scandalous. AlphaCore challenged TCPA-related background information, the proposed class definition, and most of Mannacio’s class allegations.

The court denied the request to strike the four paragraphs containing TCPA-related background information. Although some of the information concerned a different TCPA provision, the court found that it still had a logical connection to the case.

The court also denied the request to strike the proposed class definition and class allegations. It concluded that discovery was warranted and that deciding whether the class definition was proper or whether the class allegations could be maintained would be premature before a class-certification motion. The court stated that it would address the class-certification requirements if Mannacio filed such a motion.

Disposition

The court denied Defendant’s motion to dismiss or strike. It continued the case-management conference from May 6 to May 11, 2021, at 2:00 p.m., and directed the parties to submit a joint case-management statement by May 6, 2021.