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Metzler v. Pure Energy USA LLC

Putative TCPA Violation Class Action Is Dismissed for Failure to State a Claim

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OPINION AND ORDER Plaintiff Mark Metzler brings this putative class action against Defendant Pure Energy USA LLC (“Pure Energy”) for violations of the Telephone Consumer Protection Act, 47 U.S.C. §227 et seq. (“TCPA”). In the First Amended Complaint (“FAC”), Plaintiff, individually and on behalf of a potential class, alleges that Defendant violated the TCPA by making unsolicited calls to Plaintiff’s and potential class members’ mobile phones using an artificial or prerecorded voice without permission. See FAC 4, Dkt. 23.1 Defendant moves to dismiss the FAC under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim. See generally Mot., Dkt. 25. For the following reasons, Pure Energy’s Motion to Dismiss is GRANTED. I. BACKGROUND2 Plaintiff, a resident of Philadelphia, Pennsylvania, brings this purported class action complaint against Defendant Pure Energy LLC, a solar energy company that converts homes and businesses to solar energy and other types of alternative energy. FAC 5. Plaintiff’s claims arise from Defendant’s alleged telemarketing campaign that involved the transmission of “ringless voicemails” to persuade energy customers to switch energy providers. Id.

3-5, 32. On September 23, 2021, Plaintiff received a voicemail on his cell phone. Id. 29. According to the FAC, the voicemail was a “ringless voicemail,” meaning a voice message that was transmitted directly to Plaintiff’s voicemail box without the telephone ringing, see id.; according to the original complaint, the telephone rang but the call went to voicemail when Plaintiff did not answer, Compl.

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