Metzler v. Pure Energy USA LLC

Background

Mark Metzler brought a putative class action against Pure Energy USA LLC under the Telephone Consumer Protection Act (TCPA). He alleged that, on September 23, 2021, he received an unsolicited voicemail on his cellphone. The message referred to a customer-choice program and asked him to call a telephone number. Metzler alleged that the message was a “ringless voicemail” and that he could tell it was prerecorded. After calling the number, he reached someone who identified herself as a Pure Energy representative and began enrolling him in Pure Energy’s services.

Metzler alleged that he never consented to be contacted and that the voicemail caused privacy-related harms, annoyance, and use of space and resources on his cellphone. He asserted claims under Section 227(b)(1)(A) and Section 227(b)(3) of the TCPA, seeking actual and statutory damages, potentially increased damages for knowing or willful violations, and declaratory and injunctive relief. He also alleged that Pure Energy had made similar calls to thousands of consumers.

Pure Energy moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction and under Rule 12(b)(6) for failure to state a claim.

Standing and Subject-Matter Jurisdiction

The court denied Pure Energy’s motion to dismiss for lack of subject-matter jurisdiction. The court concluded that Metzler adequately alleged an injury in fact based on the nuisance and privacy invasion associated with an unsolicited voicemail. It also found that his allegations adequately connected the voicemail to Pure Energy because he reached a Pure Energy representative after returning the call and was then offered Pure Energy’s services.

The court further held that Metzler had adequately alleged standing to seek both damages and an injunction. Although he alleged receiving only one call, the court accepted at this stage his allegations that others had complained about similar calls from Pure Energy and that he and proposed class members were likely to be harmed again. The court noted that it could revisit the request for injunctive relief later.

Failure to State a Claim

The court granted Pure Energy’s motion to dismiss for failure to state a claim. First, the court found that Metzler had not plausibly alleged that Pure Energy directly placed the voicemail. His allegation that Pure Energy owned or operated the originating telephone number was conclusory and unsupported by additional facts. The fact that Metzler later reached a Pure Energy representative showed that the voicemail related to Pure Energy, but it did not show that Pure Energy itself made the call rather than a third-party telemarketer.

Second, the court found that Metzler had not plausibly alleged that the message used an artificial or prerecorded voice, as required by the TCPA provision at issue. Merely calling the message a ringless voicemail and stating that it sounded prerecorded was not enough. The court found no additional facts showing that the voice sounded artificial or that Metzler received multiple identical messages. The court also concluded that the website complaints cited in the First Amended Complaint did not support the allegation that other consumers received the same prerecorded message.

The court also found implausible Metzler’s allegation that he spent fifteen minutes reviewing the 43-word message. The court stated that even reading and listening to the message could not have taken more than a few minutes.

Amendment and Disposition

Although courts generally allow amendment when justice requires, Judge Valerie Caproni found that further amendment would be futile. Metzler had already amended once, and during oral argument his counsel indicated that there were no additional facts supporting the allegations that Pure Energy controlled the originating telephone number or that the call was prerecorded. Counsel’s experience-based speculation did not supply the missing factual allegations.

The court therefore granted Pure Energy’s motion to dismiss, dismissed Metzler’s First Amended Complaint with prejudice, directed the Clerk of Court to terminate the open motions and deadlines, and closed the case. The court did not decide whether any TCPA violation was knowing or willful because it found that the basic TCPA allegations were insufficient.