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4753304.1

 

Douglas R. Cullins, Bar #022402

Kenneth L. Moskow, Bar #029839 

JONES, SKELTON & HOCHULI, P.L.C. 

2901 North Central Avenue, Suite 800 

Phoenix, Arizona 85012 

Telephone: (602) 263-1700 

Fax: (602) 651-7509 

dcullins@jshfirm.com 

kmoskow@jshfirm.com 

Attorneys for Defendant Walgreen Arizona 

Drug Co. 

UNITED STATES DISTRICT COURT 

DISTRICT OF ARIZONA 

Richard Shupe,

Plaintiff,

v. 

Walgreen Co., 

Defendant.

NO. CV16-0001 TUCDCB

MOTION TO DISMISS 

PLAINTIFF’S COMPLAINT 

PURSUANT TO FRCP 12(b)(6) 

(Oral Argument Requested) 

Defendant Walgreen Arizona Drug Co.1 (“Defendant”), through 

undersigned counsel and pursuant to Federal Rule of Civil Procedure 12(b)(6), hereby 

moves the Court to dismiss Plaintiff’s Complaint. Plaintiff’s Complaint does not contain 

sufficient allegations of underlying facts to give fair notice and to enable Defendant to 

defend itself effectively. Thus, the Complaint does not plausibly suggest an entitlement to 

relief such that it is not unfair to require Defendant to be subjected to the expense of 

discovery and continued litigation. Accordingly, Plaintiff’s Complaint fails to satisfy 

FRCP 8(a)(2) and should be dismissed pursuant to FRCP 12(b)(6).2

 

 

1

Improperly named in Plaintiff’s Complaint as “Walgreen Co.” 

2

 Walgreen does not waive any affirmative defense by filing this Motion to Dismiss. Out of an 

abundance of caution, Walgreen asserts all the defenses set forth in Rules 8(c) and 12(b), Fed. R. Civ. P., 

including, but not limited to: assumption of the risk, contributory negligence, lack of jurisdiction over the 

subject matter, lack of jurisdiction over the person, duress, estoppel, set-off, failure to join an 

indispensable party, failure of consideration, fraud, illegality, laches, statute of limitations, insufficiency of 

process and insufficiency of service of process, waiver, intervening/superseding causes, comparative 

negligence, failure to mitigate, contribution and satisfaction.

Case 4:16-cv-00001-DCB Document 4 Filed 02/09/16 Page 1 of 8
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4753304.1 2

 

This Motion is supported by the following Memorandum of Points and 

Authorities, the Court record and any oral argument that may be heard on the matter. 

MEMORANDUM OF POINTS AND AUTHORITIES

I. PLAINTIFF’S ALLEGATIONS3

In his Complaint, Plaintiff alleges four claims: (1) Violation of the 

Telephone Communications Protection Act (“TCPA”); (2) Violation of [C.F.R. §] 

64.1200(C)(2); (3) negligence; and (4) A.R.S. § 44-1282 (i.e.: Arizona’s Intrastate 

Telemarketing Statute). (See Doc. 1). Plaintiff’s claims arise from the same operative 

alleged facts. (Id.). 

Plaintiff alleges that his “cell phone operating under the telephone number 

ending in 6400” was placed on the Do Not Call Registry before the alleged calls from 

which this action arises were made. (Id. 2:18-28). Plaintiff further alleges that Defendant 

called Plaintiff’s cell phone fourteen times without express consent and left “pre-recorded 

messages.” (Id. 2:30-32). Plaintiff asserts that, “more than two years ago,” Defendant 

was “informed by mail . . . not to call said number for any reason.” (Id. 2:32-34). 

Plaintiff does not allege facts concerning each of the fourteen alleged phone 

calls, stating only that “in part, the defendant called the Plaintiff’s cell phone to take part 

in a ‘survey.’” (Id. 2:36). Plaintiff does not state how many of the fourteen alleged calls 

involved an alleged survey or the alleged survey’s subject matter. (See generally Doc. 1). 

II. LEGAL STANDARD 

Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of a 

plaintiff’s claims. When reviewing such a motion, “[a]ll allegations of material fact in the 

complaint are taken as true and construed in the light most favorable to the nonmoving 

party.” Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1997) (citation omitted). 

 

3

In assessing a Rule 12(b)(6) motion, “[a]ll allegations of material fact in the complaint are taken 

as true and construed in the light most favorable to the nonmoving party.” Lee v. City of Kingman, No. 

3:14-CV-08218 JWS, 2015 WL 5013876, at *2 (D. Ariz. 2015) (citing Vignolo v. Miller, 120 F.3d 1075, 

1077 (9th Cir.1997)). Accordingly, the facts set forth herein are offered arguendo and solely for the 

purposes of this motion and do not constitute admissions. Defendant reserves its right, and affirms its 

intention, to deny any and all allegations as appropriate.

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However, “to be entitled to the presumption of truth, allegations in a complaint . . . may 

not simply recite the elements of a cause of action, but must contain sufficient allegations 

of underlying facts to give fair notice and to enable the opposing party to defend itself 

effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). Moreover, “the factual 

allegations that are taken as true must plausibly suggest an entitlement to relief, such that 

it is not unfair to require the opposing party to be subjected to the expense of discovery 

and continued litigation.” Id. When a plaintiff’s complaint offers only a possible

entitlement to relief, and not a plausible entitlement, such pleading does not support 

further proceedings. In re Century Aluminum Co. Sec. Litig., 729 F.3d 1104, 1108 (9th 

Cir. 2013). To be considered plausible, the alleged facts, accepted as true, must tend to 

exclude the alternative possibilities. Id. Although Plaintiff brings this action pro se, 

“[p]ro se litigants must follow the same rules of procedure that govern other litigants.” 

King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) overruled on other grounds by Lacey v. 

Maricopa Cty., 693 F.3d 896 (9th Cir. 2012) (citation omitted). 

Dismissal for failure to state a claim can be based on either “the lack of a 

cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal 

theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988) (citation 

omitted). “Conclusory allegations of law . . . are insufficient to defeat a motion to 

dismiss.” Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001). 

III. LEGAL POSITION 

A. Plaintiff’s TCPA Claim (Count I) and 47 CFR § 64.1200 Claim (Count 

II) Are Not Properly Pled Because Neither Plausibly Suggests 

Entitlement to Relief 

Plaintiff’s Complaint fails to allege a plausible claim, as required. Century 

Aluminum Co., 729 F.3d at 1108. The facts alleged in Plaintiff’s Complaint, even if 

accepted as true, do not tend to exclude the alternative possibilities, as they must. Id. 

Plaintiff alleges that Defendant left pre-recorded messages on his cell phone 

fourteen times during the year 2015. Plaintiff does not provide any dates, does not 

identify phone numbers from which the alleged messages were received, does not identify 

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his own phone number (he only provides the last four digits), and does not provide details 

about the content of the messages, except that, “in part,” a message allegedly involved a 

survey, which Plaintiff fails to describe. However, in alleging a TCPA claim, the 

“contention that [a plaintiff] must only allege that a call was placed to a cellular phone 

using an automatic telephone system, without any dates, details or identifying phone 

numbers, is not supported by case law.” Augustin v. Santander Consumer USA, Inc., 43 

F. Supp. 3d 1251, 1254 (M.D. Fla. 2012) (multiple citations omitted). Because Plaintiff’s 

Complaint does not include sufficient factual allegations to permit Defendant to check its 

records to determine whether it may be liable for the alleged conduct, Plaintiff failed to 

give Defendant “enough [information] to raise a right to relief above the speculative 

level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, (2007); see also Augustin, 43 F. 

Supp. 3d at 1254 (citing same). Accordingly, Plaintiff has pled insufficient facts in 

support of his TCPA claim and this claim should be dismissed. See Ashcroft v. Iqbal, 556 

U.S. 662, 679 (2009) (“Determining whether a complaint states a plausible claim for relief 

will . . . be a context-specific task that requires the reviewing court to draw on its judicial 

experience and common sense . . . [b]ut where the well-pleaded facts do not permit the 

court to infer more than the mere possibility of misconduct, the complaint has alleged – 

but it has not ‘show[n]’ – ‘that the pleader is entitled to relief.’”) (citing FRCP 8(a)(2)). 

Moreover, Plaintiff does not state whether Defendant called him randomly 

or if Plaintiff was doing business with Defendant when the calls were made. This is 

significant because, under certain circumstances, if Plaintiff was doing business with 

Defendant, his TCPA claim may be barred. For example, 47 C.F.R. § 64.1200(a)(2) 

provides an exception to TCPA restrictions for a “call that delivers a ‘health care’ 

message made by, or on behalf of, a ‘covered entity’ or its ‘business associate,’ as those 

terms are defined in the HIPAA Privacy Rule, 45 CFR 160.103.” “Health care means 

care, services, or supplies related to the health of an individual . . . [and] includes, but is 

not limited to . . . [s]ale or dispensing of a drug, device, equipment, or other item in 

accordance with a prescription. 45 C.F.R. § 160.103. Defendant is a corporation made up 

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of pharmacies.4 Plaintiff’s allegations do not rule out the applicability of the “health care 

message” exception. 

Moreover, if Plaintiff was doing business with Defendant and provided his 

phone number, he gave consent to be called, which is also an exception to the prohibitions 

of the TCPA. Meyer v. Portfolio Recovery Associates, LLC, 707 F.3d 1036, 1042 (9th 

Cir. 2012); Baird v. Sabre Inc., 995 F. Supp. 2d 1100, 1106-07 (C.D. Cal. 2014) aff’d, 

(9th Cir. Feb. 3, 2016); Saunders v. NCO Fin. Sys., Inc., 910 F. Supp. 2d 464, 467 

(E.D.N.Y. 2012) (“[A]uthorities are almost unanimous that voluntarily furnishing a 

cellphone number to a vendor or other contractual counterparty constitutes express 

consent.”) (citing multiple cases, inter alia, Meyer v. Portfolio Recovery Associates). 

Additionally, the FCC exempts calls that are “made for a commercial 

purpose but do[] not include or introduce an advertisement or constitute telemarketing.” 

47 C.F.R. § 64.1200(a)(3)(iii). To the extent that the alleged “survey” call Plaintiff claims 

he received involved feedback on services provided, or merely reminded Plaintiff that a 

prescription was due for refill, Plaintiff fails to state a claim upon which he is entitled to 

relief. 

On the face of the Complaint, Plaintiff fails to allege a plausible claim, as 

required, because the alleged facts, accepted as true, do not tend to exclude the alternative 

possibilities, as they must. Century Aluminum Co., 729 F.3d at 1108. Plaintiff’s TCPA 

claim (Count I) and 47 CFR § 64.1200 claim (Count II) should be dismissed pursuant to 

FRCP 12(b)(6). In the alternative, Defendant moves the Court to require that Plaintiff 

provide a more definite statement of this claim pursuant to FRCP 12(e). 

B. Plaintiff’s Negligence Claim (Count III) Is Not Properly Pled 

In Arizona, “[t]o establish a claim for negligence, a plaintiff must prove four 

elements: (1) a duty requiring the defendant to conform to a certain standard of care; (2) a 

breach by the defendant of that standard; (3) a causal connection between the defendant's 

 

4

This fact may be judicially noticed pursuant to Fed. R. Evid. 201. 

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conduct and the resulting injury; and (4) actual damages.” Gipson v. Kasey, 214 Ariz. 

141, ¶ 9, 143, 150 P.3d 228, 230 (2007). First, Plaintiff’s Complaint fails to incorporate 

the “history” section into the specific Counts he alleges.5 In his negligence claim, 

Plaintiff alleges only that “[D]efendant was negligent by their [sic] failure to abide by 

federal law . . . buy [sic] calling a party listed on the DNCR, absence [sic] expressed 

consent.” (Doc. 1 at 4:25-27). Plaintiff further alleges that, because Defendant allegedly 

“settled a class action lawsuit for [TCPA] claims . . . , the [D]efendant can’t plead 

ignorance of the TCPA.” (Id. at 4:31-35). Plaintiffs’ reference to an alleged settlement in 

another action is not only improper, it is insufficient to establish negligence in this case. 

For the reasons articulated above and incorporated here, Plaintiff has not 

properly pled breach of an owed duty of care under FRCP 8(a)(2). Even if the claim was 

pled properly, Plaintiff’s attempt to recover on a negligence claim in addition to his 

statutory claims is not allowed. Accordingly, Plaintiff’s negligence claim should be 

dismissed pursuant to FRCP 12(b)(6). 

C. Plaintiff’s Arizona Intrastate Telemarketing Claim (Count IV) Fails As 

A Matter of Law 

A.R.S. § 44-1282 (Arizona’s intrastate telemarketing statute) does not 

contain a private right of action. The statute provides, in relevant part: 

A violation of this section is an unlawful practice pursuant to § 

44-1522. The attorney general may investigate and take 

appropriate action . . . . This subsection is in addition to all 

other causes of action, remedies and penalties available to 

this state. All monies collected as fines and civil penalties 

pursuant to this subsection shall be credited to the state 

general fund. 

Ariz. Rev. Stat. Ann. § 44-1282(C) (emphasis added). On its face, A.R.S. § 44-1282 

provides a right of action only to the attorney general. Moreover, any fines or civil 

penalties go the state general fund and are not recoverable by individuals. 

 

5

This applies to all Counts contained in Plaintiff’s Complaint. 

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Plaintiff’s claim under A.R.S. § 44-1282 fails as a matter of law, because 

the statute itself precludes a private right of action. Count IV of Plaintiff’s Complaint is 

therefore a claim upon which relief cannot be granted and should be dismissed pursuant to 

Rule 12(b)(6). 

IV. CONCLUSION 

Plaintiff’s Complaint does not plausibly suggest an entitlement to relief such 

that it is not unfair to require Defendant to be subjected to the expense of discovery and 

continued litigation. Therefore, Plaintiff’s Complaint does not contain sufficient 

allegations of underlying facts to give fair notice and to enable the Defendant to defend 

itself effectively. Accordingly, Defendant respectfully requests the Court to dismiss 

Plaintiff’s Complaint pursuant to FRCP 12(b)(6). 

DATED this 9

th day of February, 2016.

JONES, SKELTON & HOCHULI, P.L.C.

By /s/ Douglas R. Cullins 

Douglas R. Cullins 

Kenneth L. Moskow 

2901 North Central Avenue, Suite 800 

Phoenix, Arizona 85012 

Attorneys for Defendant Walgreen Arizona 

Drug Co.

CERTIFICATE OF SERVICE 

I hereby certify that on this 9th day of February, 2016, I caused the 

foregoing document to be filed electronically with the Clerk of Court through the 

CM/ECF System for filing; and served on counsel of record via the Court’s CM/ECF 

system. 

. . . 

. . . 

. . . 

. . . 

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I further certify that some of the participants in the case are not registered 

CM/ECF users. I have mailed the foregoing document to the following non-CM/ECF 

participants: 

Richard Shupe 

3657 South Double Echo Road 

Tucson, Arizona 85735 

Plaintiff Pro Se

/s/ Cindy Miller 

Case 4:16-cv-00001-DCB Document 4 Filed 02/09/16 Page 8 of 8