Kemen v. Cincinnati Bell Inc.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

SUSAN KEMEN,

Plaintiff,

Case No. 1:22-cv-152

v.

JUDGE DOUGLAS R. COLE

CINCINNATI BELL TELEPHONE

COMPANY, LLC,

Defendant.

OPINION AND ORDER

This case is about unsolicited telemarketing calls—or as they are more

commonly known, spam calls. Plaintiff Susan Kemen alleges that Defendant

Cincinnati Bell Telephone Company, LLC (Cincinnati Bell), violated the Telephone

Consumer Protection Act of 1991 (TCPA), 47 U.S.C. § 227, by making unwanted

telemarketing calls to her cell phone. (Second Am. Compl., Doc. 19). The matter is

now before the Court on Cincinnati Bell’s (Second) Motion to Dismiss and/or Strike

Certain Improper Allegations from Plaintiff’s Second Amended Complaint, (Second

Mot. to Dismiss, Doc. 20). For the reasons discussed below, the Court DENIES the

Second Motion to Dismiss (Doc. 20) in its entirety.1

BACKGROUND

The Court recounted the relevant allegations in its previous Opinion and Order

dismissing the First Amended Complaint, (Doc. 12, #149–51), so it will not tarry long

1 Because the Court is denying Cincinnati Bell’s Motion, it also notes that it is denying

Cincinnati Bell’s request for oral argument on the Motion. (Doc. 20, #231).

on them here. Basically, Kemen alleges that in January 2022, she visited Cincinnati

Bell’s website and filled out an online quote request form. (Doc. 19, #222). That online

form included fields for her name, email address, and phone number. (Id. at #223

(screenshot of online form)). The Second Amended Complaint, like the previous

iterations, does not identify the products or services for which Kemen sought a quote,

nor does it indicate how she expected Cincinnati Bell to respond to her request.

Kemen goes on to allege that, after completing the form, a Cincinnati Bell

employee called her cell phone at 3:32 p.m. on January 20, 2022, asking her to

purchase Cincinnati Bell’s “products and services.” (Id.). One minute later, the same

number called her again. (Id.). Kemen did not answer that second call, but she alleges

that calls to that number go to a Cincinnati Bell employee’s voicemail. (Id.).

Five days later, Kemen alleges she received a third call from Cincinnati Bell.

(Id.). She also did not answer that call, which came from a different number from the

first two calls. (Id.). But she alleges that this second number also connects to a

Cincinnati Bell employee’s voicemail. (Id.).

Two minutes later, Kemen allegedly received an email from Cincinnati Bell

employee Eric Naegel—the same employee whose voicemail she alleges the second

phone number reaches. (Id. at #223–24). That email also solicited her to buy

Cincinnati Bell’s “products and services.” (Id. at #224). Kemen alleges she replied to

the email, once again asking to no longer receive emails or phone calls from

Cincinnati Bell. (Id.). Naegel “acknowledged her stop request the following day,”

presumably by reply email. (Id.).

Finally, roughly a week later, at 1:08 p.m. on February 1, 2022, Kemen

received her fourth and final call from a third phone number, which she says also

belongs to Cincinnati Bell.2 (Id.). She answered that call and once again asked

Cincinnati Bell to stop calling her. (Id.). Kemen does not allege she received any more

calls from Cincinnati Bell or its affiliates after that.

On March 24, 2022, Kemen sued Cincinnati Bell, Inc., on behalf of herself and

those similarly situated. (Doc. 1). The original Complaint pursued one claim under

the TCPA against Cincinnati Bell, Inc., for violating 47 C.F.R. § 64.1200(d). (Id. at

#10–12). Along with Kemen’s own factual allegations, the Complaint included

screenshots of a job posting and anonymous internet complaints posted by current

and former Cincinnati Bell employees. (Id. at #4–5). It also included anonymous

complaints from people whom Cincinnati Bell apparently called repeatedly despite

their requests for no further contact. (Id. at #4). Based on all those allegations, Kemen

sought monetary and injunctive relief on behalf of herself and a class of similarly

affected individuals. (Id. at #12).

Cincinnati Bell, Inc., then moved to dismiss. (Doc. 5). Among other things, it

argued Kemen had sued the wrong entity because Cincinnati Bell, Inc., was a holding

2 As the matter is before the Court only on the allegations in the Complaint, the Court takes

Kemen at her word that the fourth call came from Cincinnati Bell. But the Second Amended

Complaint is somewhat confusing on this point. Kemen claims she received the fourth call

from the phone number “513-943-4301” and that this number “is advertised on Defendant

Cincinnati Bell’s Website.” (Doc. 19, #224). Kemen then inserts a screenshot allegedly taken

from Cincinnati Bell’s website. (Id.). But the screenshot shows a different phone number:

513-986-0093. (Id.). That said, a Google search suggests that the telephone number she lists

in her Second Amended Complaint is associated with an Altafiber store, and Altafiber

appears to be a name associated with Cincinnati Bell.

company and did not make calls to prospective customers. (Id. at #46–47; Wilson

Decl., Doc. 5-1 ¶ 6, #57 (“CBI acts only as a holding company and does not itself

provide any communications or other services to the public. CBI does not make or

hire others to make any telemarketing calls. The telephone numbers 513-565-9606,

513-566-7016 and 513-943-4301 do not belong to and are not used by CBI. ‘Eric

Naegel,’ who is referred to in the Complaint, is not an employee of CBI.”)).

Rather than oppose the motion, Kemen filed the First Amended Complaint a

week later. (Doc. 6). Her First Amended Complaint mirrored her original allegations

and cause of action but named Cincinnati Bell Telephone Company, LLC, as the sole

Defendant. (Id. at #58).

On May 18, 2022, Cincinnati Bell Telephone Company, LLC, moved to dismiss

the First Amended Complaint and, in the alternative, to strike certain allegations.

(First Mot. to Dismiss, Doc. 9). First, it argued Kemen had not stated a plausible

claim under the TCPA and 47 C.F.R. § 64.1200(d)—the regulation governing internal

do-not-call (DNC) lists. (Id. at #89–94). Next, it argued Kemen lacked Article III

standing to pursue prospective injunctive relief. (Id. at #95–96). Finally, assuming

the Court chose not to dismiss the action, Cincinnati Bell asked the Court to strike

the job posting, anonymous complaints, and class allegations from the First Amended

Complaint. (Id. at #96–103). Kemen responded that she had stated a plausible claim,

had statutory standing to pursue injunctive relief, and had grounds to include the job

posting, anonymous complaints, and class allegations in her First Amended

Complaint. (See Doc. 10). Cincinnati Bell replied. (Doc. 11).

The Court granted Cincinnati Bell’s motion to dismiss the First Amended

Complaint, and thus denied as moot Cincinnati Bell’s motion to strike. (Doc. 12,

#160–61). More specifically, the Court determined that Kemen had not plausibly

alleged that she was a residential subscriber—a necessary element of her claim under

47 C.F.R. § 64.1200(d). (Id. at #155–60). But because it determined Kemen might be

able to cure this deficiency by pleading additional factual allegations, it dismissed the

First Amended Complaint without prejudice and granted Kemen thirty days to seek

leave to file a Second Amended Complaint. (Id. at #160–61). And because Kemen

dropped Cincinnati Bell, Inc., as a defendant when she filed her First Amended

Complaint, the Court also dismissed Cincinnati Bell, Inc., from the action and denied

Cincinnati Bell, Inc.’s, Motion to Dismiss (Doc. 5) as moot. (Doc. 12, #161).

Kemen accepted the Court’s invitation and moved for leave to file a Second

Amended Complaint, to which she attached the proposed Second Amended

Complaint. (Doc. 13). Defendants responded by arguing that filing the Second

Amended Complaint would be futile as it still fails to state a claim. (Doc. 14).

The Court rejected Defendants’ arguments for the most part, finding that

Kemen’s Second Amended Complaint plausibly alleged all four elements of a viable

TCPA claim. (Doc. 17, #214). So it ordered Kemen to file her Second Amended

Complaint on the docket and Cincinnati Bell to file an answer thereafter. (Id. at

#214–15). But Cincinnati Bell also had argued that Kemen lacked Article III standing

to seek injunctive relief because the Second Amended Complaint did not plausibly

allege Cincinnati Bell will call her again. (Id. at #214). As Kemen had not responded

to that argument, the Court also ordered her to brief that specific issue. (Id. at #214–

15). Instead, when she filed the Second Amended Complaint (Doc. 19), she also filed

a notice withdrawing the claim for injunctive relief. (Doc. 18).

Cincinnati Bell answered the Complaint as the Court had ordered. (Doc. 21).

But on top of that, and despite the Court’s Opinion and Order (Doc. 17) rejecting

Cincinnati Bell’s futility argument and holding that Kemen has plausibly alleged her

TCPA claim, Cincinnati Bell also moved to dismiss the Second Amended Complaint

for failure to state a claim. (Doc. 20). It casts that motion as “not seeking

reconsideration but, rather, and respectfully, [] exercising its rights to file a

dispositive motion in response to the SAC as the current operative pleading in this

matter and to move to strike Plaintiff’s improper allegations under Rule 12, and so

to avoid waiver of other legal rights in relation to the SAC.”3 (Id. at #231 n.1).

In arguing that the Court should dismiss the Second Amended Complaint,

Cincinnati Bell focuses on one of the four TCPA elements—the one that requires

Cincinnati Bell to have in place “minimum internal procedures” to avoid unwanted

telephone solicitations. (Id. at #242–47). But despite its claim that it does not seek

reconsideration, this is not a new argument—Cincinnati Bell made the same

argument in its earlier opposition to Kemen’s motion seeking leave to file. (Doc. 14,

#183–85). And the Court rejected it because it found that Kemen’s receiving three

3 It is worth noting that Cincinnati Bell was not likely at risk of waiver by not re-raising its

arguments. Neither waiver nor forfeiture occur when a party has raised claims or arguments

at the proper time and has acted consistently with those claims or arguments. See Nat’l

Republican Senatorial Comm. v. Fed. Election Comm’n, No. 1:22-cv-639, 2024 WL 205474, at

*14 n.9 (S.D. Ohio Jan. 19, 2024). Cincinnati Bell had done both here.

more calls in the twelve days after she had asked not to be called gave rise to an

inference of the lack of such procedures. (Doc. 17, #213–14).

Beyond raising its already-rejected argument that Kemen had defectively

pleaded the TCPA claim, the new motion also seeks to strike (1) the class allegations

as facially flawed, and (2) certain other allegations as improper. (Doc. 20, #248–55).

Cincinnati Bell has advanced those arguments before, too. (Doc. 9, #96–103). But the

Court did not address them the first time Cincinnati Bell made them because the

Court granted the First Motion to Dismiss, (Doc. 12, #160–61), so it makes sense that

Cincinnati Bell would renew its request to strike these allegations.

The allegations that Cincinnati Bells seeks to strike fall into three general

categories: anonymous online complaints, the job posting screenshot, and the class

allegations. (Doc. 20, #248–55). As to the first and second categories, it basically

argues that the facts are irrelevant even if true, so they have no place in the Second

Amended Complaint. (Id.). And as to the third, it argues that (1) the class definition

is “impermissibly overbroad,” and (2) individual issues would inherently predominate

at the class certification stage, so striking the class definition and allegations at the

pleadings stage is appropriate. (Id. at #252–55).

Kemen responded to Cincinnati Bell’s filing by first noting, correctly and

perhaps unsurprisingly, that Cincinnati Bell’s argument for dismissal merely

rehashes an argument the Court already rejected. (Doc. 25, #285–86). As for the

request to strike, she argues that the Court should not strike the anonymous internet

allegations and job posting because they “are relevant to Plaintiff’s allegations that

the calls she received from Cincinnati Bell (1) were telemarketing, (2) evidenced

Cincinnati Bell’s failure to maintain adequate policies and procedures for

maintaining an internal do not call list, and (3) were willful and knowing TCPA

violations.” (Id. at #286). Finally, she argues that the Court should not strike the class

allegations because class members are easily ascertainable from Defendant’s internal

records; the class is not overbroad because it is limited to consumers who were called

at least once after asking not to be called; and the class definition can be amended as

needed before certification, so striking the class allegations is not appropriate at this

stage. (Id. at #287–89). Cincinnati Bell has since replied. (Doc. 26).

The matter is now before the Court on the Second Motion to Dismiss.

LEGAL STANDARDS

A. The Motion For Reconsideration Standard

Cincinnati Bell claims it is not moving for reconsideration. (Doc. 20, #231 n.1).

But its motion to dismiss merely reraises arguments the Court has already

addressed. (Doc. 17, #213–14; compare Doc. 14, #182–88, with Doc. 20, #242–47). That

is a motion for reconsideration, whether labeled as such or not. So the Court “us[es]

its discretion to address substance over form,” McGlone v. Bell, 681 F.3d 718, 728 n.2

(6th Cir. 2012), and treats the “motion to dismiss” as a motion for reconsideration of

its previous Opinion granting Kemen leave to file the Second Amended Complaint.

Accord Prudential Real Est. Affiliates, Inc. v. PPR Realty, Inc., 204 F.3d 867, 880 (9th

Cir. 2000) (“The label attached to a motion does not control its substance.” (cleaned

up)).

The Court of course has authority to consider such requests. See Rodriguez v.

Tenn. Laborers Health & Welfare Fund, 89 F. App’x 949, 959 (6th Cir. 2004) (noting

that while “[t]he Federal Rules of Civil Procedure do not explicitly address motions

for reconsideration of interlocutory orders[,] … the authority for hearing such

motions has a common law basis … [and has] additional support in Federal Rule of

Civil Procedure 54(b)”). Perhaps not surprisingly, though, motions for reconsideration

face a high hurdle and are rarely granted. “Traditionally, courts will find justification

for reconsidering interlocutory orders [only] when there is (1) an intervening change

of controlling law; (2) new evidence available; or (3) a need to correct a clear error or

[to] prevent manifest injustice.” Id. Importantly, “[a] motion to reconsider an

interlocutory order is not an invitation for the parties to relitigate the issue.”

Breeders’ Cup Ltd. v. Nuvei Techs., Inc., No. 5:19-cv-00113, 2023 WL 6135671, at *2

(E.D. Ky. Sept. 19, 2023).

B. The Motion to Strike Standard

Separately, Federal Rule of Civil Procedure 12(f) governs motions to strike.

That rule allows the Court to strike “any redundant, immaterial, impertinent, or

scandalous matter” from a pleading. Fed. R. Civ. P. 12(f). For Rule 12(f) purposes,

“[a]llegations in a pleading are immaterial if they have no essential or important

relationship to the claim and are impertinent if they do not pertain, and are not

necessary to the issues in question.” U.S. Diamond & Gold v. Julius Klein Diamonds

LLC, No. C-03-06-371, 2007 WL 1026421, at *11 (S.D. Ohio Mar. 29, 2007). But

“[m]otions to strike are viewed with disfavor and are not frequently granted.”

Operating Eng’rs Loc. 324 Health Care Plan v. G & W Constr. Co., 783 F.3d 1045,

1050 (6th Cir. 2015); accord Mapp v. Bd. of Ed. of Chattanooga, 319 F.2d 571, 576

(6th Cir. 1963) (“It is a drastic remedy to be resorted to only when required for the

purposes of justice.”). Accordingly, a “motion to strike should be granted only when

the pleading to be stricken has no possible relation to the controversy.” Brown &

Williamson Tobacco Corp. v. United States, 201 F.2d 819, 822 (6th Cir. 1953).

That said, “[p]arties can use a Rule 12(f) motion to attack class certification.

But a movant who moves to strike class allegations bears the burden of

demonstrating that, from the face of the complaint, it will be impossible to certify the

class as alleged, regardless of the facts plaintiffs may be able to prove.” Carmen v.

Health Carousel, LLC, No. 1:20-cv-313, 2021 WL 2476882, at *11 (S.D. Ohio June 17,

2021) (cleaned up). Therefore, striking class allegations before discovery is

appropriate “only if the Court is convinced that any questions of law are clear and not

in dispute, and that under no set of circumstances could the claims succeed in class

action form. In all other cases, the court should defer decision on certification pending

discovery.” Id. (cleaned up).

LAW AND ANALYSIS

The Court begins with the motion for reconsideration. Then, because it is

denying that portion of Cincinnati Bell’s motion, the Court considers Cincinnati Bell’s

argument that it should strike certain allegations from the Second Amended

Complaint.

A. The Motion For Reconsideration

When it granted Kemen leave to file the Second Amended Complaint, the

Court found that she plausibly alleged all four elements of her TCPA claim. (Doc. 17,

#206–14). That includes the element as to which Cincinnati Bell now renews its

argument—whether Cincinnati Bell had the requisite minimum internal procedures

in place. (Doc. 20, #242–47). While Cincinnati Bell is of course free to disagree with

the Court’s plausibility determination, to obtain reconsideration, it must show “(1) an

intervening change of controlling law; (2) new evidence available; or (3) a need to

correct a clear error or [to] prevent manifest injustice.” Rodriguez, 89 F. App’x at 959.

But Cincinnati Bell does not even endeavor to make any such showing, nor to the

Court’s knowledge could it. In short, nothing has changed since the Court first

considered that argument. So Cincinnati Bell’s “motion to dismiss,” which is really a

motion for reconsideration, is merely an attempt “to relitigate the issue.” Breeders’

Cup Ltd., 2023 WL 6135671, at *2.

Beyond that, the real problem on this element, as least in the Court’s view, is

that, as the Court previously observed, “the existence of minimum procedures and

the reasonableness of Cincinnati Bell’s delay are factual matters better addressed at

summary judgment.” (Doc. 17, #214). Does that mean that Cincinnati Bell must wait

to seek to vindicate its position until discovery is complete? No. If Cincinnati Bell has

such procedures in place, and if it thinks its procedures clear the necessary threshold

as a matter of law, it is free to produce the procedures and move for summary

judgment on that basis—or indeed to attach them by way of an authenticating

affidavit to such a motion. True, if Plaintiffs need specific discovery to respond to that

argument, they will be entitled to seek it. Fed. R. Civ. P. 56(d). But they will need to

show what they need and why.

But regardless whether Cincinnati Bell chooses to present this argument on a

more fully developed factual record somewhere down the road, the only question now

is whether the Court wishes to reconsider its earlier decision on the sufficiency of

Kemen’s allegations. The answer to that question is no. Accordingly, the Court denies

Cincinnati Bell’s motion for reconsideration.

B. The Motion to Strike.

Separately, Cincinnati Bell seeks to strike four things from the Second

Amended Complaint. (Doc. 20, #250). The first is a job posting for an Outside Sales

Representative that lists “door-to-door (cold-calling) activity” and “working lead lists”

as position responsibilities. (Doc. 19, #219–20). The second is a pair of anonymous

customer complaints from Cincinnati Bell’s Better Business Bureau (BBB) page in

which customers say Cincinnati Bell refused to stop calling them after they requested

no further contact. (Id. at #220). The third is a screenshot of three current and former

employees’ reviews on Indeed, each of which talks about using a speed dialer and/or

making cold calls. (Id. at #221). And the fourth is Kemen’s proposed class definition,

along with other class-related allegations. (Id. at #225–27). The Court treats the first

three as a group, then separately considers the class-related allegations.

1. The Online Complaints

As to the first three things Cincinnati Bell wants to strike—the job posting,

the BBB complaints, and the Indeed reviews—Cincinnati Bell says that “Plaintiff’s

vague and unsubstantiated internet complaints regarding ‘cold calls’ or ‘unsolicited’

telemarketing calls to others are irrelevant, immaterial, have no bearing on Plaintiff

or this case, and only serve to unduly prejudice CBT.” (Doc. 20, #250 (emphasis

omitted)). Kemen responds that those allegations offer relevant support for the

elements of her TCPA claim, and that they “demonstrate that the class is numerous,

that Plaintiff is a typical class member, and that Plaintiff and the class’s claims share

common issues.” (Doc. 25, #286).

Plaintiff has the better argument. The Court is not relying on the anonymous

internet allegations to support Kemen’s own TCPA claim—as previously discussed,

Kemen has provided enough other allegations for that claim to warrant leave to

amend. Nor is the Court saying that such anonymous allegations constitute

admissible evidence. No party has raised the issue, but anonymous internet

allegations strike the Court as presenting a classic hearsay problem. But the

anonymous internet allegations could be relevant if subsequently proven with

admissible evidence. For example, “[Kemen] alleges that the[ Indeed] reviews were

posted and that they consist of conduct that [Cincinnati Bell] employees

undertook … that may violate the TCPA.” Marquette v. HomeAdvisor, Inc., No. 6:20-

cv-1490, 2021 WL 2942742, at *2 (M.D. Fla. Jan. 15, 2021). If proven, such

allegations—which speak to willfulness—perhaps may be relevant to the question of

damages. 47 U.S.C. § 227(c)(5) (“If the court finds that the defendant willfully or

knowingly violated this subsection or the regulations prescribed under this

subsection, the court may, in its discretion, increase the amount of the award to an

amount equal to not more than 3 times the amount available under subparagraph (B)

of this paragraph.”). The job posting, which seeks individuals willing to engage in cold

calling, is similarly perhaps relevant to the willfulness issue if subsequently proven.

And the consumer complaints, if proven, could be relevant to Kemen’s class

allegations. Marquette, 2021 WL 2942742, at *2 (“These allegations could be helpful

to establish the various Rule 23 requirements necessary to certify a class; if true, they

show that other people have had similar experiences with [Defendant].”). So

Cincinnati Bell has not shown that the allegations it seeks to strike “ha[ve] no

possible relation to the controversy.” Brown & Williamson, 201 F.2d at 822. The Court

therefore declines to strike them at this stage.

Cincinnati Bell resists this conclusion by pointing to six cases in which courts

struck anonymous internet complaints or allegations from other complaints. (Doc. 20,

#249; Doc. 26, #294). It also cites cases opining on the general unreliability of

anonymous internet complaints. Each of the cases, though, is distinguishable.

Start with Hicks v. Alarm.com Inc., No. 1:20-cv-532, 2020 WL 9261758 (E.D.

Va. Aug. 6, 2020). Hicks relied on anonymous online complaints and a vague assertion

about previous lawsuits to allege elements of his own individual claims. Id. at *5

(“Plaintiff’s support for the ‘pre-recorded’ characterization of the call is that it was

generic, impersonal, and ‘other consumers have complained about receiving calls

transmitting the identical prerecorded voice message.’ … [T]he website does not

mention Alarm.com and the other recordings on that website are not identical as a

group or to the one Plaintiff provides.”); id. at *6 (“[P]aragraph 22 states that there

are ‘myriad online complaints’ about Defendant’s same unlawful telemarketing

practices as evidenced at www.ShouldIAnswer.com … [T]h[e] number [listed in the

complaint] has a negative rating, as ‘9 users rated [the phone number] as

negative’ … [C]haracteriz[ing] a total of nine anonymous online entries as ‘myriad

online complaints’ is hyperbolic and unsupported.”); id. (“Plaintiff also alleges support

for the instant claims by stating[,] ‘Alarm.com has previously been sued over its

TCPA violations.’ There are no details or facts related to or in support of this

assertion.” (citation omitted)). The Hicks court found that those allegations were not

enough to tie the online complaints to the defendant, or to satisfy the elements of

Hicks’s own individual claims. Id. at *6 (“Even assuming these allegations are

properly pinned to this Defendant, there remains insufficient factual information

under § 227(b)(1)(B) that Defendant initiated the prerecorded call. Furthermore, the

pre-recorded call does not specifically name Alarm.com, and the anonymous third-

party reports on directory.youmail.com are not expressly linked to Defendant.”).

But here, Kemen is not relying on these allegations to render plausible the

basic elements of her own TCPA claim. Nor does she speak in sweeping

generalizations or hyperbolically exaggerate the number of online complaints she

cites. Rather, she cites to specific reviews and online complaints, which may be

relevant (if proven) for the reasons discussed above. So Hicks is not persuasive.

Wiseberg v. Toyota Motor Corporation, No. CIV.A. 11-3776 JLL, 2012 WL

1108542 (D.N.J. Mar. 30, 2012), is no better. Plaintiffs in that case used anonymous

internet complaints as the sole basis for alleging that the defendant was aware of

defects in its products without “point[ing] to other sources as having given Defendant

notice.” Id. at *13; see also id. (“While anonymous Internet complaints could be

relevant to the issue of knowledge, it must be shown that Toyota was aware of these

complaints.”). And knowledge was a necessary element of one of their state-law

consumer protection claims. Id. at *3. But a rule that a party may not rely solely on

anonymous internet complaints to raise plausible factual allegations establishing a

necessary element of that party’s own claim does not help Cincinnati Bell here.

Kemen is not relying on these internet allegations as the sole basis for any element

of her claim.

Porter v. Fairbanks Capital Corporation, No. 01 C 9106, 2003 WL 21210115

(N.D. Ill. May 21, 2003), is similarly unhelpful. The court in that case struck clearly

irrelevant internet complaints. Id. at *7 (“A great portion of the material does not

even concern Fairbanks’s servicing practices … [and] the material that does refer to

Fairbanks … is irrelevant to the facts alleged in the complaint. The material appears

to have been attached to the complaint solely for the purpose of prejudicing

defendant.”). But Kemen’s internet allegations are potentially relevant to this case,

as the Court has already explained. So Porter is not on point.

Finally, the complaints in each of the other three cases Defendant cites

attempted to rely on unproven, uninvestigated allegations lifted from complaints in

other cases (i.e., “complaints” in the sense of legal filings that open a case) as though

they were facts capable of supporting the plaintiff’s cause of action. Conde v. Sensa,

259 F. Supp. 3d 1064, 1070–71 (S.D. Cal. 2017) (“Although our Circuit has not

squarely addressed this issue, this Court agrees that unproven state-court allegations

may not validly support a plaintiff’s cause of action in this Court.”); In re Countrywide

Fin. Corp. Mortg.-Backed Sec. Litig., 934 F. Supp. 2d 1219, 1226 (C.D. Cal. 2013) (“As

a general rule, paragraphs in a complaint that are either based on, or rely on,

complaints in other actions that have been dismissed, settled, or otherwise not

resolved, are, as a matter of law, immaterial within the meaning of Fed. R. Civ. P.

12(f).” (cleaned up)); Me. State Ret. Sys. v. Countrywide Fin. Corp., No. 2:10-cv-0302,

2011 WL 4389689, at *19, *21 (C.D. Cal. May 5, 2011) (“Sieracki complains that the

[complaint] quotes and cites to unproven, untested allegations in complaints filed in

separate lawsuits, as if they were facts. … Because Plaintiffs have not reasonably

investigated the allegations they copied from complaints in other cases, the Court

GRANTS Defendant Sieracki’s motion to strike.” (emphasis removed)). But Kemen is

relying on material from “complaints” in an entirely different sense of that word—

negative online comments about and reviews of Cincinnati Bell. So those cases are

not directly relevant either.

In short, Cincinnati Bell has failed to show that the allegations with which it

takes issue are necessarily immaterial to this case. And the cases it cites do not

persuade the Court otherwise. Whether the allegations, if capable of being

established by competent evidence or otherwise proven, end up being relevant to the

matter at hand is a different question, and one the Court does not answer now. But

as things stand, the Court will not strike the allegations about the job posting, the

Indeed reviews, or the BBB complaints.

2. The Class Allegations

That leaves Cincinnati Bell’s argument to strike Kemen’s class allegations.

The Second Amended Complaint proposes the following “Internal Do Not Call Class”:

All persons in the United States who from four years prior to the filing

of this action through trial (1) Defendant (or an agent acting on behalf

of the Defendant) called more than one time, (2) within any 12-month

period, (3) for substantially the same reason Defendant called Plaintiff,

including (4) at least one call after they requested that Defendant stop

calling.

(Doc. 19, #225). It also excludes various persons from that definition. (Id. at #225–

26). And it notes that “Plaintiff anticipates the need to amend the Class definitions

[sic] following appropriate discovery.” (Id. at #226).

To prevail on its effort to squelch the class aspect of this litigation right out of

the gate, Cincinnati Bell faces an uphill climb. It must persuade the Court that, “from

the face of the complaint, it will be impossible to certify the class as alleged,

regardless of the facts plaintiffs may be able to prove.” Carmen, 2021 WL 2476882,

at *11 (cleaned up). At the certification stage, proposed classes must meet the four

requirements of Federal Rule of Civil Procedure 23(a): numerosity, commonality,

typicality, and adequacy of representation. They must also satisfy one of the

conditions of Rule 23(b). One way to do that is to show both that “questions of law or

fact common to class members predominate over any questions affecting only

individual members, and that a class action is superior to other available methods for

fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). So to

defeat the class component now, Cincinnati Bell would need to show that, on the face

of Kemen’s allegations, she cannot make one or more of these necessary showings, no

matter what discovery may reveal.

Cincinnati Bell takes two stabs at that showing. First, it says Kemen’s class

definition is “impermissibly overbroad on its face” because the class “would include

individuals for whom there could be no TCPA liability against [Cincinnati Bell] as a

matter of law.” (Doc. 20, #252–53). That is because the class definition sweeps in non-

residential subscribers and individuals who “received only one alleged violative call

after a DNC request.” (Id. at #252). Second, Cincinnati Bell says that “individualized

consent inquiries,” rather than common questions of law and fact, necessarily

predominate. (Id. at #253–55; id. at #253 (“[T]he critical legal and factual issues of

consent and revocation of consent are inextricably intertwined with Plaintiff’s

proposed class definition as pled, and individualized determinations on those issues

would be needed at the minimum.”)).

Kemen offers four arguments in response. First, she says the class is not

overbroad because it “is limited to consumers who received two or more calls as

required to establish a private right of action under 47 U.S.C. § 227(c).” (Doc. 25,

#287). Second, to the degree that the definition is overbroad, she can amend it (with

the benefit of discovery) to exclude non-residential subscribers before seeking

certification. (Id. at #288). Third, “Cincinnati Bell’s mere allusion to potential consent

defenses is not enough to find Plaintiff’s classes uncertifiable at this or any other

stage.” (Id.). And finally, Cincinnati Bell’s own records can be used “to determine who

made an internal do not call request but was continuously called by Cincinnati Bell.”

(Id. at #288–89).

Kemen prevails on this argument, too. Cincinnati Bell’s arguments turn on

whether it has maintained internal records of (1) consumers who requested no

further contact, and (2) prospective customers whom it has called to market its

services. If such records exist, assessing whether each prospective class member

satisfies each element required to state a TCPA claim is merely an issue of class

member identification, rather than an insurmountable bar to future class

certification. In re Saturn L-Series Timing Chain Prod. Liab. Litig., Nos. 8:07-cv-298,

8:08-cv-79, 2008 WL 4866604, at *24 (D. Neb. Nov. 7, 2008) (“While Defendants note

potential difficulties this Court may face in defining the class, these concerns do not

justify a premature dismissal of all class allegations prior to the class certification

stage.”). The same is true when it comes to the Rule 23(a) class requirements. Without

more information, the Court declines to speculate about whether Kemen will be able

to satisfy those requirements at the class certification stage. And finally, members of

the alleged class might well be identifiable without the Court’s needing to adjudicate

whether each individual class member revoked their consent—after all, the proposed

class definition seems to suggest class members will include only those who objected

to being contacted again but were nonetheless subject to further calls—so that is not

a reason to strike the class allegations at this stage either. Meyer v. Receivables

Performance Mgmt., LLC, No. C12-2013RAJ, 2013 WL 1914392, at *2 (W.D. Wash.

May 8, 2013) (“Perhaps [Defendant] is correct that consent or other issues will

ultimately require an individualized inquiry, but there is no way to make that

determination now. [Defendant]’s motion illustrates why courts typically decide class

certification after discovery, not on the pleadings.”).

None of those circumstances are guaranteed. Kemen may well be unable to

meet her burden for class certification at the end of the day, even with more

information. But Cincinnati Bell’s arguments on that front are best addressed after

discovery. Carmen, 2021 WL 2476882, at *13; In re Jamster Mktg. Litig., No. 05-ev-

0819, 2009 WL 1456632, at *7 (S.D. Cal. May 22, 2009) (“Even though the arguments

of [Defendant] may ultimately prove persuasive, the court declines to address issues

of class certification at the present time.”). So the Court declines to strike the class

allegations. Donaca v. Metro. Life Ins. Co., No. CV 13-05611, 2014 WL 12597152, at

*3-4 (C.D. Cal. Jan. 22, 2014) (collecting cases). Accordingly, the Court also denies

the motion to strike portion of Cincinnati Bell’s filing.

CONCLUSION

For the reasons discussed above, Court DENIES the Motion to Dismiss and/or

Strike Certain Improper Allegations from Plaintiff's Second Amended Complaint

(Doc. 20).

SO ORDERED.

March 22, 2024

DATE DOUGLAS R. COLE

UNITED STATES DISTRICT JUDGE

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