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Glasser v. Hilton Grand Vacations Co., LLC

United States District Court for the Middle District of Florida, Tampa Division

January 3, 2017, Decided; January 3, 2017, Filed

Case No: 8:16-cv-952-T-27AAS

Opinion

ORDER

BEFORE THE COURT is Defendant's Motion to Dismiss Complaint (Dkt. 33), which Plaintiff opposes (Dkt. 40). Upon consideration, the Motion (Dkt. 33) is DENIED.

Background

Plaintiff alleges that in February 2016 Defendant, Hilton Grand Vacations Company, LLC used an automated dialing system to place automated or prerecorded telemarketing calls to her cellular telephone to encourage the purchase of its promotional vacation packages and timeshares without express written consent in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. ("TCPA"). (Dkt. 1 ¶ 13). She alleges that the calls invaded her privacy by wasting her time and that the calls diminished the battery life on her cellular telephone. (Id. ¶ 18). She alleges she is charged [*2]  by her wireless carrier for receiving incoming calls. (Id.). She brings this action on behalf of herself and all others similarly situated, seeking injunctive relief, actual damages, statutory damages, attorney's fees and costs, and certification as a class action.

Hilton Vacations moves to dismiss pursuant to Rules 12(b)(1) and 12(b)(3), and alternatively moves to transfer pursuant to 28 U.S.C. § 1404(a). Hilton Vacations argues Plaintiff lacks Article III standing for failing to allege a concrete injury. Further, it contends that because Plaintiff entered into an agreement with Hilton HHonors Worldwide, L.L.0 ("Hilton HHonors") to become a member of the HHonors Program, she consented to the calls. Alternatively, and based on the same agreement, Hilton Vacations contends that this case should be transferred to the Eastern District of Virginia and the class allegations struck.

Plaintiff counters that she sufficiently alleges concrete and particularized injuries and whether she consented to the calls is an affirmative defense, not a question of standing. In opposition to the motion to transfer, she argues that Hilton Vacations has failed to establish an agreement between herself and Hilton Vacations, and alternatively, that [*3]  her claims are outside the scope of the agreement.

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2017 U.S. Dist. LEXIS 381 *; 2017 WL 34823

MELANIE GLASSER, individually and on behalf of all others similarly situated, Plaintiff, v. HILTON GRAND VACATIONS COMPANY, LLC., Defendant.

Subsequent History: Motion denied by Glasser v. Hilton Grand Vacations Co., 2017 U.S. Dist. LEXIS 182619 (M.D. Fla., July 24, 2017)

Motion denied by, Without prejudice Glasser v. Hilton Grand Vacations Co., LLC, 2017 U.S. Dist. LEXIS 149332 (M.D. Fla., Sept. 14, 2017)

Later proceeding at Glasser v. Hilton Grand Vacations Co., LLC, 2017 U.S. Dist. LEXIS 157690 (M.D. Fla., Sept. 26, 2017)

Motion denied by Glasser v. Hilton Grand Vacations Co., LLC, 2017 U.S. Dist. LEXIS 206759 (M.D. Fla., Dec. 15, 2017)

Motion denied by Glasser v. Hilton Grand Vacations Co., LLC, 2018 U.S. Dist. LEXIS 234714 (M.D. Fla., Sept. 20, 2018)

Summary judgment granted by, Class certification denied by, As moot Glasser v. Hilton Grand Vacations Co., LLC, 341 F. Supp. 3d 1305, 2018 U.S. Dist. LEXIS 162867 (M.D. Fla., Sept. 24, 2018)

Costs and fees proceeding at, Motion granted by, in part Glasser v. Hilton Grand Vacations Co., LLC, 2018 U.S. Dist. LEXIS 183616 (M.D. Fla., Oct. 26, 2018)

Stay granted by Glasser v. Hilton Grand Vacations Co., LLC, 2019 U.S. App. LEXIS 12322 (11th Cir. Fla., Apr. 24, 2019)

CORE TERMS

Vacations, venue, telephone, alleges, forum selection clause, parties, motion to dismiss, forum-selection, subsidiaries, consented, cellular, privacy