United States District Court, M.D. Florida, Ocala Division
G. BYRON, UNITED STATES DISTRICT JUDGE
cause comes before the Court on Defendants', Intelemedia
Communications, Inc.'s and Intelemedia Premier Leads,
LLC's, Motion to Dismiss and attached Memorandum (Docs.
18, 18-1 (“Motion”)). Plaintiffs
opposed. (Doc. 25). With briefing complete, the matter is
ripe. Upon consideration, the Motion is due to be denied.
Tara Johnson and Melvin Brown, bring this putative class
action against Defendants, Intelemedia Communications, Inc.
and Intelemedia Premier Leads, LLC
(“Intelemedia Premier”), for
violations of the Telephone Consumer Protection Act
(“TCPA”), 47 U.S.C. § 227
et seq. (Doc. 1). Plaintiffs allege they received
prerecorded telephone calls from Defendants without their
consent in violation of the TCPA. (Id. ¶¶
22-24). The calls were part of a telemarketing scheme called
“Moneycall” or “Dreamsweepstakes.”
(Id. ¶ 23).
Premier is a wholly-owned subsidiary of Intelemedia
Communications. (Id. ¶ 8). Plaintiff alleges
that the phone number making the impermissible calls is
associated with a website “operated by or on behalf of
Defendants.” (Id. ¶ 23). Both Intelemedia
Premier and Intelemedia Communications are defined as
“Sweepstakes Entities” in the website's
“Official Rules” section. (Id.).
move to dismiss the Complaint for impermissibly lumping
Defendants together in many of the allegations. (Doc. 18-1,
pp. 1-5). Furthermore, Defendants maintain that the Complaint
fails to “specifically connect any of the purportedly
unlawful conduct to Intelemedia Communications.”
(Id. pp. 5-6).
STANDARD OF REVIEW
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(1). Thus, in order to
survive a motion to dismiss made pursuant to Rule 12(b)(6),
the complaint “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
plausible on its face when the plaintiff “pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
a complaint need not contain detailed factual allegations,
mere legal conclusions or recitation of the elements of a
claim are not enough. Twombly, 550 U.S. at 555.
Moreover, courts are “not bound to accept as true a
legal conclusion couched as a factual allegation.”
Papasan v. Allain, 478 U.S. 265, 286 (1986).
“While legal conclusions can provide the framework of a
complaint, they must be supported by factual
allegations.” Iqbal, 556 U.S. at 679. Courts
must also view the complaint in the light most favorable to
the plaintiff and must resolve any doubts as to the
sufficiency of the complaint in the plaintiff's favor.
Hunnings v. Texaco, Inc., 29 F.3d 1480, 1483 (11th
Cir. 1994) (per curiam). In sum, courts must (1) ignore
conclusory allegations, bald legal assertions, and formulaic
recitations of the elements of a claim; (2) accept well-pled
factual allegations as true; and (3) view well-pled
allegations in the light most favorable to the plaintiff.
Iqbal, 556 U.S. at 679.
first move to dismiss the Complaint for “lumping the
Defendants together for the purposes of all
allegations.” (Doc. 18-1, p. 4). Indeed,
“[w]hen a plaintiff brings claims against multiple
defendants, ‘the complaint should contain specific
allegations with respect to each defendant; generalized
allegations lumping multiple defendants together are
insufficient to permit the defendants, or the Court, to
ascertain exactly what plaintiff is claiming.'”
Brogan v. Volusia Cty., No. 6:17-cv-745-Orl-40KRS,
2018 WL 2359145, at *3 (quoting J.V. v. Duval Cty. Sch.
Bd., No. 3:16-cv-1009-J- 34MCR, 2017 WL 4226590, at *1
(M.D. Fla. Sept. 22, 2017)).
this general principle, Defendants' argument on this
point fails. Although many of the allegations apply to both
Defendants, it is because they allegedly both participated in
the same unlawful conduct. (Doc. 1, ¶ 23). The Complaint
contains sufficient allegations to put each Defendant on
notice of what Plaintiff is claiming, despite Plaintiffs'
also move to dismiss the Complaint as against Defendant
Intelemedia Communications for failure to specifically allege
any wrongful conduct by Intelemedia Communications. (Doc.
18-1, pp. 5-6). However, the Complaint alleges that
Intelemedia Communications operates the website associated
with the unlawful calls and is defined by the website as a
“Sweepstakes Entit[y].” (Doc. 1, ¶ 23). The
Court declines Defendants' invitation to ignore the
“incorrect” allegation in the Complaint and take
judicial notice of Defendants' website (Doc. 18-1, p. 5
n.4), which purportedly establishes the error.Rather, accepting
as true the well-pled allegations of the Complaint, and
viewing the Complaint in the light most favorable to
Plaintiffs, the Court is satisfied that the Complaint
contains sufficient factual allegations to support a
plausible claim against Defendant Intelemedia