UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

JEFFREY BLEVINS, individually and on 

behalf of all others similarly situated,

Plaintiffs,

v.

PREMIUM MERCHANT FUNDING ONE,

LLC,

Defendant.

No.: 2:18-cv-00377

DEFENDANT PREMIUM MERCHANT FUNDING ONE, LLC’S MEMORANDUM IN 

SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS

AND NOW, comes Defendant Premium Merchant Funding One, LLC (“Premium 

Merchant”), having filed its Motion for Judgment on the Pleadings, files the within 

Memorandum in Support of Motion for Judgment on the Pleadings and in support thereof, state 

as follows: 

I. INTRODUCTION

In his Amended Complaint, Plaintiff alleges that Premium Merchant is liable for 

violating the do not call provisions of the Telephone Consumer Protection Act. However, courts 

in Ohio and courts nationwide have agreed that a TCPA violation cannot be premised on a call to 

a business line. The pleadings indisputably establish that the telephone number at issue in the 

Amended Complaint is used for business purposes. As such, Plaintiff cannot prevail on his 

Amended Complaint as a matter of law and judgment should be entered in favor of Premium 

Merchant, together with any other relief deemed equitable and just. 

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II. FACTUAL ALLEGATIONS AND PROCEDURAL HISTORY

This matter arises out of a putative class action Complaint filed by Jeffrey Blevins 

(“Plaintiff”) against Premium Merchant Funding One, LLC (“Premium Merchant”). The 

operative Complaint is an Amended Complaint filed by Plaintiff on June 14, 2018. In his 

Amended Complaint, Plaintiff seeks damages for violations of the Telephone Consumer 

Protection Act (“TCPA”). 

A. Plaintiff’s Business and Telephone Number 

Plaintiff owns Interior Creations, a small business. ECF No. 11, ¶ 20. Interior Creations 

performs home remodeling and improvement projects. Id. Interior Creations has a website 

designated as www.interiorcreations.com. ECF No. 12-1. Plaintiff is identified as the contact 

person and representative for the company—indeed—he is the sole proprietor according to the 

Amended Complaint. Id.; ECF No. 11, ¶ 20. 

Plaintiff is the exclusive user of the telephone number ending in 3503. Id., ¶ 21. 

According to the Complaint, the number has been registered with the National Do Not Call 

Registry (the “NDNC”). Id. Plaintiff routinely identifies that telephone number as associated 

with Interior Creations. ECF No. 12, ¶¶ 12, 27; ECF No 12-1. For example, the telephone is 

identified on his own website for Interior Creations as the contact number for the business. ECF 

No. 12-1. His telephone number is also identified on Buzzfile.com, Houzz.com, Facebook.com, 

and Manta.com, all of which associate the telephone number with Plaintiff’s business, Interior 

Creations. Id. 

B. Plaintiff Receives Two Text Messages and Initiates a Putative Class Action

On April 3, 2018, Plaintiff received two text messages on his telephone number. ECF 

No. 11, ¶ 22. According to the Amended Complaint, Plaintiff responded with “Who is this and 

what’s your company name?” Id., ¶ 23. The response was: “My name is Bryce and I work with 

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Premium [Merchant]!” Id. Plaintiff requested a website and was directed to the website for 

Premium Merchant. Id., ¶¶ 24, 25. Plaintiff alleges that he never contacted Premium Merchant 

and did not consent to the text messages. Id., ¶¶ 26, 28. 

As a result of the foregoing, Plaintiff asserts two claims for violations of the TCPA. In 

particular, he alleges that Premium Merchant is liable for making telemarketing text messages to 

members of the NDNC. See generally ECF No. 11. 

III. STANDARD OF REVIEW

A motion for judgment on the pleadings pursuant to Federal Rule 12(c) attacks the 

sufficiency of the pleadings and is evaluated under the same standard as a motion to dismiss. 

Amersbach v. City of Cleveland, 598 F.2d 1033, 1038 (6th Cir.1979). In ruling upon such 

motion, the Court must accept as true all well-pleaded material allegations of the pleadings of the 

opposing party, and the motion may be granted only if the moving party is nevertheless clearly 

entitled to judgment. Id.; Lindsay v. Yates, 498 F.3d 434, 438 (6th Cir. 2007). 

The pleading standards articulated in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atl. 

Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) apply with equal force 

to motions for judgment on the pleadings. Those cases make clear that in order to survive such a 

motion, a complaint must contain “enough facts to state a claim to relief that is plausible on its 

face.” Bell Atlantic, 550 U.S. at 570. Further, the Court must disregard statements of legal 

conclusions and look only to the well-pleaded facts of the complaint in order to determine its 

legal sufficiency. 

A motion brought pursuant to Rule 12(c) is appropriately granted “when no material 

issue of fact exists and the party making the motion is entitled to judgment as a matter of law.”

JPMorgan Chas Bank, N.A. v. Winget, 510 F. 3d 577, 581 (6th Cir. 2007). 

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IV. ARGUMENT

Plaintiff asserts two causes of action for either negligent or intentional violation of the 

TCPA. See generally ECF No. 11. Congress enacted the TCPA “to protect the privacy rights of 

citizens by restricting the use of the telephone network for unsolicited advertising.” Charvat v. 

GVN Michigan, Inc., 531 F. Supp. 922 (S.D. Oh. 2008) (citations omitted). Critically, as 

Plaintiff acknowledges in his Amended Complaint, the TCPA make it unlawful to: 

initiate any telephone solicitation to . . . a residential telephone subscriber who 

has registered his or her telephone number on the national-do-not-call registry of 

persons who do not wish to receive telephone solicitations that is maintained by 

the Federal Government.

47 C.F.R. § 64.1200(d) (emphasis added). Courts nationally have concluded that when a 

telephone number is used for business, it is not a “residential number” and, therefore, cannot be 

the basis for a TCPA violation. 

As a threshold matter, the court in Krakauer v. Dish Network L.L.C., No. 1:14-CV-333, 

2017 WL 2242952 (M.D.N.C., May 22, 2017) confirmed that “the protections of the TCPA 

related to the Registry only apply to residential numbers; calls to businesses on the Registry are 

not actionable under § 227(c).” Id., at * 1 (citing 47 C.F.R. § 64.1200(c)(2) & (d)). At least one 

Ohio state court has agreed. In Adamo v. AT&T, No. 79002, 2001 WL 1382757, at *2 (Oh. Ct. 

App. Nov. 8, 2001), the court agreed that “[t]he TCPA does not extend to business customers.” 

In Bank v. Independence Energy Group LLC, No. 12-CV-1369 JG VMS, 2015 WL 

4488070, at *2 (E.D. N.Y. July 23, 2015), the court concluded that if a telephone number is held 

out as a business line, then it should not be considered a residential telephone number for 

purposes of the TCPA. The court opined “while a telephone subscriber can have a telephone 

number registered as residential with the telephone company, if the subscriber holds out such a 

telephone number to the general public as a business line, the line should not be considered 

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residential for the purposes of the TCPA—even if it is registered as ‘residential’ with the 

telephone company.” Id. at *3 (internal quotation marks omitted). 

Ultimately, the Independence Energy court concluded that the plaintiff (an attorney) held 

his number out as being for business. His telephone number was displayed on business cards, 

professional letterhead, court pleadings, and he provided his number to clients, prospective 

clients, and business contacts. Id. Because the plaintiff repeatedly represented his telephone 

number as being one for business, the court concluded that no reasonable juror could find that 

the telephone is residential and judgment was entered in favor of the defendant. Id.

When presented with a similar issue, the Utah District Court agreed that a telephone 

number used for business purposes cannot support a TCPA claim. Primavera v. Drexen, No. 

080922890, 2009 WL 3554582 (Utah Dist. Ct. Oct. 26, 2009). The court instructed that the 

plaintiff’s TCPA claims failed because those provisions explicitly apply only to “residential” 

telephone lines: 

Here, Plaintiff is an attorney who systematically brings claims under the TCPA to 

generate income. The undisputed testimony from Plaintiff's wife is that the 

telephone line in question was installed by Plaintiff for the specific purpose of 

generating income by pursuing these claims. The undisputed evidence shows that 

the dedicated use of this telephone line, which Plaintiff has intentionally failed to 

register on the Do-Not-Call list, is to receive telemarketing calls, document them, 

and turn them into income by pursuing claims under the TCPA. Thus, the 

telephone line is a mere instrumentality of Plaintiffs business of pursing TCPA 

claims. As such, the telephone line is an unprotected “business” line

Id. (citing Adamo, supra). 

Here, Plaintiff has repeatedly and deliberately used his telephone number for business 

purposes. ECF 12-1. Plaintiff intentionally represented on both his business’s website and his 

business’s Facebook page that the contact information for Interior Creations is the same number 

upon which his TCPA claims are premised. Id. His telephone number is also associated with his 

business on at least three other websites. Id. Thus, even if Plaintiff claims that his number is 

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registered as residential, such claim is inconsequential. Plaintiff holds his telephone number out 

to the general public as a business line. Therefore “the line should not be considered residential 

for the purposes of the TCPA.” Independence Energy Group LLC, 2015 WL 4488070, at *2

V. CONCLUSION

For the foregoing reasons, Premium Merchant respectfully requests that this Court enter 

judgment in its favor and against Plaintiff with prejudice, together with any other relief deemed 

equitable and just. 

Respectfully submitted this 6

th day of August, 2018,

/s/ James M. Doerfler

James M. Doerfler (OH # 59350)

Reed Smith Centre

225 Fifth Avenue

Pittsburgh, PA 15222-2716

Telephone: +1 412 288 3131

Facsimile: +1 412 288 3063

Counsel for Premium Merchant Funding One, 

LLC

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CERTIFICATE OF SERVICE

I hereby certify that on this 6

th day of August, 2018, a true and correct copy of the 

foregoing Motion for Judgment on the Pleadings has been filed electronically and is available for 

viewing and downloading from the federal courts’ Electronic Cases Files system. 

/s/ James M. Doerfler

James M. Doerfler (OH # 59350)

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