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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Richard Shupe,

Plaintiff, 

v. 

Walgreens Co., 

Defendant.

CV-16-0001-TUC-DCB

ORDER

Before the Court is Defendants’ Motion to Dismiss Complaint pursuant to Federal 

Rule of Civil Procedure 12(b)(6). (Doc. 4).

Background

Plaintiff, Richard Shupe pro se, seeks relief in the form of statutory, compensatory 

and punitive damages arising out of Defendants alleged violations of 47 U.S.C. §227, 

A.R.S. §44-1282 and negligence. Plaintiff filed his original complaint in federal court on

January 4, 2016 (Doc. 1) and Defendant filed a motion to dismiss pursuant to 

Fed.R.Civ.P. 12(b)(6) on February 9, 2016 and requested an oral argument. (Doc. 2) 

Plaintiff filed a motion to deny oral argument and a response to the Defendant’s motion 

to dismiss on February 19, 2016. Defendant subsequently filed a motion to strike 

Plaintiff’s motion to deny oral argument and a motion to extend the deadline for Fed. R. 

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Civ. Pro. 26(f) to a reasonable time following the Court’s ruling on the pending motion to 

dismiss. 

Plaintiff’s original complaint and proposed amended complaint allege that 

Defendant violated 47 U.S.C. §227 (Count 1 and 2) and A.R.S. §44-1282 (Count 3) by 

making a series of phone calls to Plaintiff’s prepaid cellular telephone. Additionally, 

Plaintiff alleges that Defendant acted negligently (Count 4).

Standard of Review –

A. Fed.R.Civ.P. 12(b)(6)

A complaint should be dismissed under Federal Rule of Civil Procedure 12(b)(6) 

where it appears that the facts alleged fail to state a “plausible” claim for relief. Ashcroft 

v. Iqbal, 556 U.S. 662, 678 (2009). When analyzing a motion to dismiss, the Court must 

“accept factual allegations in the complaint as true” and construe “the pleadings in the 

light most favorable to the non-moving party.” Manzarek v. St. Paul Fire & Marine Ins. 

Co., 519 F.3d 1025, 1031 (9th Cir. 2008); Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 

1295 (9th Cir. 1998). A plaintiff’s complaint will not be dismissed if it simply alleges 

enough facts to “raise a right to relief above the speculative level.” Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, (2007). However, “the court [is not] required to accept as true 

allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable 

inferences.” Spreewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

With these pleading standards in mind, the Court also recognizes that the 

pleadings of pro se litigants are held to a less stringent standard and can only be 

dismissed for failure to state a claim if it appears “beyond doubt that the plaintiff can 

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prove no set of facts in support of his claim which would entitle him to relief.” Estelle v. 

Gamble, 429 U.S. 97, 106 (1976) (quoting Haines v. Kerner, 404 U.S. 519, 520-21 

(1972)). Still, a dismissal under Rule 12(b)(6) may be based on the “lack of a cognizable 

legal theory or an absence of sufficient facts alleged to support a cognizable legal 

theory.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001)

Although Fed. R. Civ. Pro. 8(a)(2) requires only that a complaint put a defendant 

on notice by pleading a “short and plain statement of the claim showing that the pleader 

is entitled to relief,” the Court ruled in Twombly that a claim must state enough facts to be 

“plausible on its face.” 550 U.S. 544, 570 (2007). In Iqbal, the Court explained “a claim 

has facial plausibility when the plaintiff pleads factual content that allows the court to 

draw the reasonable inference that the defendant is liable for the misconduct alleged.” 

556 U.S. 662, 678 (2009).

B. Fed.R.Civ.P. 15 

Fed. R. Civ. Pro. 15 outlines the procedural requirements for filing an amended 

complaint prior to trial. A party is permitted to amend their complaint once as a matter of 

course within 21 days of serving the original complaint or within 21 days of a service of a 

motion under Rule 12(b), (e) or (f). Fed. R. Civ. Pro. 15(a)(2) outlines all other 

amendments and requires a party seeking amendment in other circumstances to get 

written consent from the opposing party or the court’s leave. In determining whether a 

the court should grant a motion for leave to amend, the court should consider five factors: 

1) bad faith; 2) undue delay; 3) prejudice to the opposing party; 4) futility of amendment; 

and 5) whether the plaintiff has previously amended his complaint. Nunes v. Ashcroft, 

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348 F.3d 815, 818 (9th Cir. 2003). The Court has the authority to deny a requested 

amendment for futility. Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 

1041 (9th Cir. 2011). “Futility alone can justify the denial of a motion to amend.” Johnson 

v. Buckley, 356 F.3d 1076, 1077 (9th Cir. 2004). However, if the Court determines that 

the pleading could be cured by additional allegations of facts, a pro se litigant is entitled 

to an opportunity to amend a complaint before it is dismissed. See Lopez v. Smith, 203 

F.3d 1122, 1127-29 (9th Cir. 2000). 

Discussion

A. Count I & Count II: Violation of 47 U.S.C. §227, 47 C.F.R. §64.1200

Plaintiff’s proposed amended complaint alleges that Defendant called Plaintiff’s 

prepaid cellular telephone 28 times between the dates of April 25, 2015 and December 

16, 2016 using an automatic telephone dialing system and left prerecorded messages 

absent consent from Plaintiff. (Doc. 12-1) Plaintiff concedes that “years ago” his spouse 

gave Defendant his telephone number but was told by Walgreen’s pharmacist that the 

number would be used only for verification purposes when picking up a prescription 

from the store and Plaintiff’s spouse stipulated that Defendant not call this number. Id. at 

4-5. Plaintiff alleges that sometime after this, Defendant began calling Plaintiff’s cellular 

telephone and was again told not to call this number for any reason. Id. at 5. In January 

2013, Plaintiff alleges that he sent a cease and desist letter to the Defendant that 

demanded Defendant no longer make calls to this number. Id.

Additionally, Plaintiff alleges that he informed Defendant that these calls were 

causing his spouse physical harms and that due to the critical nature of the prescription 

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Plaintiff did not need to be informed of when to pick it up. Id. Furthermore, Plaintiff 

alleges that in July 2003, he registered this cellular telephone number on the National Do 

Not Call Registry and this cell phone is a prepaid cell service provided by TracFone. Id.

Specifically, the calls consisted of two automated messages from Defendant. First, 

Defendant would call Plaintiff’s phone and leave the following message: “Thanks for 

using Walgreens pharmacy located at the southwest corner of Cardinal and Valencia 

avenue in Tucson. Your prescription is ready to be picked up at the Walgreens pharmacy 

located at the southwest corner of Cardinal and Valencia Ave. Again, thank you for using 

Walgreens Pharmacy.” Id. at 6. The first call would be followed up with a second call 

stating, “Thank you for your recent call to Walgreens. We value your opinion and would 

like to ask you about the service you received for your recent call. Any feedback will 

help us to continue to improve our service to you. To begin in English press one.” Id. at 

6-7. 

Plaintiff further alleges that Defendant purposefully, willfully and knowingly violated 

47 C.F.R. §64.1200 by calling a number listed on the Do Not Call Registry. Plaintiff 

alleges that Defendants made 14 calls between April 25, 2015 and December 16, 2016 to 

Plaintiff’s number that is listed on the Do Not Call Registry. Id. at 7-8.

Under Count I of Plaintiff’s complaint and proposed amended complaint, Plaintiff 

seeks statutory damages in the amount of $1,500 per call under the federal statute 42 

U.S.C. §227, the Telephone Communications Protection Act (“TCPA”). (Doc. 12-1). 42 

U.S.C. §227(b)(1) places restrictions on uses of automated telephone equipment 

including a prohibition on using an automatic telephone dialing system to call a telephone 

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number assigned to a cellular service. 42 U.S.C. §227(b)(1)(A)(iii). However, the Code 

of Federal Regulations provides exceptions to TCPA restrictions including an exception 

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 C.F.R. 160.103.” 47 C.F.R. §64.1200(a)(2). The Code of Federal Regulations defines 

health care as any “ ... 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. 

Additional exceptions to the TCPA include 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). The term advertisement is defined as “any material 

advertising the commercial availability or quality of any property, goods, or services.” 47 

C.F.R. §64.1200(f)(1). The term telemarketing is defined as “ ... the initiation of a 

telephone call or message for the purpose of encouraging the purchase or rental of, or 

investment in, property, goods, or services, which is transmitted to any person.” 47 

C.F.R. §64.1200(f)(12). 

Here, Plaintiff concedes that Defendant made calls to inform Plaintiff that his

prescription was ready for pick up. (Doc. 12-1 at 6). While Defendant used an automatic 

telephone dialing system to call Plaintiff on a cellular telephone, the call is not prohibited 

under the TCPA or 47 C.F.R. §64.1200 because it is classified as a “health care” message 

as defined in 45 C.F.R. §160.103. 

Similarly, the follow-up calls requesting that Plaintiff participate in a survey do not 

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violate the TCPA because they do not constitute advertising or telemarketing under the 

statute. Plaintiff concedes in his proposed amended complaint that these calls presented 

Plaintiff with an opportunity to provide feedback about Defendant’s services. These calls 

neither “encourag[ed] the purchase or rental of, or investment in, property, goods, or 

services” nor constituted “material advertising the commercial availability or quality of 

any property, goods, or services.” These calls fall under the exception to the TCPA 

discussed in 47 C.F.R. §64.1200(a)(3)(iii). 

Therefore, Count I and Count II of Plaintiff’s complaint and proposed amended 

complaint do not state a claim upon which relief can be granted, are futile and will be 

dismissed.

B. Count III: Violation of A.R.S. §44-1282

Plaintiff’s complaint and proposed amended complaint allege that Defendant violated 

A.R.S. §44-1282 by making an intrastate call in violation of the TCPA. (Doc. 12-1 at 8). 

This complaint is based on the previously discussed calls made from Walgreens to 

Plaintiff’s cellular telephone notifying Plaintiff of the availability of a prescription and 

inviting Plaintiff to participate in a follow-up survey.

Under Count III of Plaintiff’s complaint and proposed amended complaint, Plaintiff 

seeks $1,000 per call made by Defendant. A.R.S. §44-1282 is Arizona’s intrastate 

telemarketing statute and does not contain a private right of action. A.R.S. §44-1282(C) 

specifically states that “The attorney general may investigate and take appropriate action 

... All monies collected as fines and civil penalties pursuant to this subsection shall be 

credited to the state general fund.” This appears to provide a right of action only to the 

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attorney general and explicitly states that any fines or civil penalties are not recoverable 

by individuals. Therefore, Plaintiff cannot bring this claim as a matter of law and Count 

III of Plaintiff’s complaint and proposed amended complaint is futile, meritless and will

be dismissed.

Alternatively, since the calls in question are not proscribed by the TCPA, they are not 

unlawful under the Arizona statute. Therefore, because the calls in question do not violate 

the TCPA, Count III of Plaintiff’s complaint and proposed amended complaint will be 

dismissed because no violation of A.R.S. §44-1282 occurred. 

C. Count IV: Negligence

Plaintiff’s complaint and proposed amended complaint alleges that Defendant acted 

negligently by not paying attention to Plaintiff’s cease and desist letter, Plaintiff’s and his 

spouse’s verbal request not to be called and by not “scrubbing” Plaintiff’s telephone 

number from their calling list subject to the Do Not Call Registry. (Doc. 12-1 at 9). 

Plaintiff argues that “Defendant has a duty not to call a telephone number that was 

requested not to be called” and furthermore Defendant has a duty to check the Do Not 

Call Registry. Id.

Under Count IV, Plaintiff seeks compensatory and punitive damages for Defendant’s 

alleged negligence. In order for a Plaintiff to prevail on a negligence claim they must 

prove, 1) a duty exists that requires the defendant to meet a certain standard of care; 2) 

the defendant breached that standard of care; 3) a causal connection between the 

defendant’s breach and the plaintiff’s injury exists; and 4) actual damages suffered by the 

plaintiff. Gipson v. Kasey, 214 Ariz. 141, 143 (2007).

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Here, Plaintiff alleges that Defendant owed him a duty not to call. However, as 

discussed above, neither the TCPA nor A.R.S. §44-1282 prohibited the calls made by 

Defendant to Plaintiff. Therefore, Defendant did not owe or did not breach a duty of care 

to Plaintiff. Therefore, Plaintiff fails to establish the first two elements necessary for a 

negligence claim and Count IV of Plaintiff’s complaint and proposed amended complaint 

will be dismissed.

Accordingly,

IT IS ORDERED that the Defendants’ Motion to Dismiss Complaint (Doc. 4) is 

GRANTED. 

IT IS FURTHER ORDERED that the Motion to File an Amended Complaint

(Doc. 12) is DENIED for the reasons stated herein. This action is DISMISSED. The 

motion to deny oral argument (Doc. 7, 17), motions to strike (Docs. 10, 15) motion for 

extension of time (Doc. 11), and motion for electronic filing (Doc. 16) are denied as moot 

based on this Order. The Clerk’s Office is directed to enter Judgment in accordance with 

this Order.1

Dated this 3rd day of August, 2016.

Honorable David C. Bury

United States District Judge

 

1 Plaintiff should consider contacting the Federal Court Self-Service Clinic prior to filing 

Complaints in the future. To schedule an appointment, please contact the federal court librarian 

at (520) 205-4661. Clinics are held by appointment only.

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