McEwen v. NRA of Am.

McEwen v. NRA of Am.

Opinion

MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTION TO DISMISS AND MOTION FOR STAY

This case arises under the Telephone Consumer Protection Act. The matter is before the Court on Defendant InfoCision's¹ Motion to Dismiss Counts 3 through 6 of Plaintiff's First Amended Class Action Complaint (ECF No. 31) and a Motion to Stay Counts 1 and 2 (ECF No. 17). For reasons that follow, the request for dismissal of Counts 3 through 6 is granted and the request for stay as to Counts 1 and 2 is dismissed as moot.

STANDARD OF REVIEW

To avoid dismissal, Mr. McEwen must provide "a short and plain statement of the claim showing he is entitled to relief." Fed. R. Civ. P. 8(a)(2). Practically speaking, this means the complaint must provide "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). In applying this standard, the Court will accept factual allegations as true and consider whether the facts, along with reasonable inferences that may arise from them, describe a plausible, as opposed to merely conceivable, claim. Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011); Sepúlveda—Villarini v. Dep't of Educ. of P.R., 628 F.3d 25, 29 (1st Cir. 2010).

PROCEDURAL HISTORY AND MATERIAL ALLEGATIONS

Plaintiff Travis McEwen commenced this civil action in May of 2020 by filing his [*3]  Class Action Complaint ("CAC" — ECF No. 1) containing four counts. After Defendants filed their initial Motion to Dismiss and to Stay (ECF No. 17), Plaintiff filed his First Amended Class Action Complaint ("FACAC" — ECF No. 24) containing six courts. Because the FACAC supersedes the CAC, Defendants filed their Motion to Dismiss Counts 3 through 6 ("Second Motion" — ECF No. 31), which supersedes their prior motion to dismiss, but not the prior request for a stay.

The following allegations are drawn from Plaintiff's Complaints and are recited without judging the allegations for accuracy. Because the matter arises on motions to dismiss, which simply test the sufficiency of the allegations, I accept the allegations as true for the limited purpose of ruling on the motions. Although Plaintiff's FACAC supersedes the CAC, I cite to both pleadings to better illustrate what remains the same and what is new in the FACAC.

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