IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JASON BENNETT, etc., )

 )

Plaintiff, )

 )

v. ) CIVIL ACTION 14-0330-WS-M

 )

BOYD BILOXI, LLC, etc., )

 )

Defendant. )

ORDER

This matter is before the Court on the defendant’s motion to dismiss the 

second amended complaint or, in the alternative, to strike the second amended 

complaint or the class allegations. (Doc. 46). The parties have filed briefs in 

support of their respective positions, (Docs. 47, 51, 52), and the motion is ripe for 

resolution. After careful consideration, the Court concludes that the motion to 

dismiss is due to be denied and that the alternative motion to strike is due to be 

granted in part and denied in part.

BACKGROUND

According to the second amended complaint, (Doc. 44), the plaintiff 

received a number of pre-recorded telephone messages from the defendant. Most 

of them were substantively identical to the following sample:

Hello, this is IP Casino, Resort and Spa calling to invite you 

to enjoy 2 free tickets to see the Kenny Wayne Shepherd Band. If 

you wish to opt-out of future calls, please dial 877-388-5999 and 

mention the opt out number 5822. Jason Bennett, join us and enjoy 

2 free tickets to see the Kenny Wayne Shepherd Band on Saturday, 

July 5th. Tickets are limited so reserve your tickets today. To take

advantage of this great offer now, please call 1-888-946-2847 x 

5152 and have your BConnected card ready to reserve your ticket, 

or visit BConnected online to view all of your offers. Thank you 

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and we look forward to your visit here at IP Casino, Resort and 

Spa.

(Id. at 5). Count One alleges that these calls violated the Telephone Consumer 

Protection Act (“the Act”), and Count Two alleges the violations were knowing 

and/or willful so as to trigger heightened penalties under the Act. (Id. at 10-11). 

The second amended complaint also seeks certification of a class action.

The defendant argues that its calls did not violate the Act. Should this 

argument fail, the defendant asks that the second amended complaint be stricken 

because it differs from the pleading which the plaintiff received permission to file. 

Should that argument fail, the defendant requests the Court to dismiss or strike the 

class allegations. 

DISCUSSION

I. Motion to Dismiss.

The motion to dismiss is brought pursuant to Rule 12(b)(6). (Doc. 46).1 

“A defendant bears at least the initial burden of demonstrating that it is entitled to 

dismissal under Rule 12(b)(6).” Gailes v. Marengo County Sheriff’s Department, 

916 F. Supp. 2d 1238 (S.D. Ala. 2013); accord Smith v. Seaport Marine, Inc., 919 

F. Supp. 2d 11267, 1275 n.9 (S.D. Ala. 2013).

Although the defendant denies that the second amended complaint satisfies 

Bell Atlantic Corp. v. Twombly, 550 U.S. 444 (2007), (Doc. 47 at 2-3), it does not 

present a genuine Twombly argument. The defendant does not argue, as under 

Twombly, that the second amended complaint is nominally consistent with liability 

but that the plaintiff should have pleaded additional facts in order to move 

potential liability from the merely possible to the plausible. 550 U.S. at 557, 570. 

Instead, the defendant argues that the facts the plaintiff has pleaded are 

inconsistent with liability under the Act. This argument implicates the principle 

 1 The motion also invokes Rule 12(b)(1), but the defendant suggests no defect in 

subject matter jurisdiction.

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that “[d]ismissal is appropriate when, on the basis of a dispositive issue of law, no 

construction of the factual allegations will support the cause of action.” D.P. ex 

rel. E.P. v. School Board, 483 F.3d 725, 728-29 (11th Cir. 2007) (internal quotes 

omitted).

The parties agree that Congress, through the Act, delegated much authority 

for its implementation to the Federal Communications Commission (“FCC”). 

They agree that the FCC’s implementing regulations, as relevant here, prohibit 

covered entities from “[i]nitiat[ing], or caus[ing] to be initiated, any telephone call 

that includes or introduces an advertisement or constitutes telemarketing, using an 

automatic telephone dialing system or an artificial or prerecorded voice, ... other 

than a call made with the prior express written consent of the called party.” 47 

C.F.R. § 64.1200(a)(2).2 And they agree, at least for purposes of this motion, that 

the defendant is a covered entity, that the calls at issue utilized a prerecorded 

voice, and that the plaintiff had not previously given express written consent to 

receive such calls. The question is whether the defendant has carried its burden of 

showing, as a matter of law, that the calls constituted neither “telemarketing” nor 

“advertisement.”3

The FCC defines “advertisement” as “any material advertising the 

commercial availability or quality of any property, goods, or services.” 47 C.F.R. 

§ 64.1200(f)(1). The FCC defines “telemarketing” 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.” 

Id. § 64.1200(f)(12). 

The defendant fails to address in any fashion the express allegation of the 

second amended complaint that the calls meet the FCC’s definition of 

 2 (Doc. 44 at 3; Doc. 47 at 4-5).

3 The second amended complaint alleges they are either or both. (Doc. 44 at 3, 5). 

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“advertisement.” The defendant has therefore failed to carry its initial burden on 

motion to dismiss, which must to that extent be denied.4 

As for “telemarketing,” the defendant argues that the calls at issue “sought 

only to provide complimentary tickets to the Plaintiff.” (Doc. 47 at 9). The 

plaintiff “was simply informed of his two free tickets to events at IP Biloxi.” (Id. 

at 8). The defendant asks the Court to employ “common sense” to reach the 

conclusion that its calls “did not encourage the Plaintiff to engage in future 

commercial transactions with” the defendant. (Id. at 9). 

Had its emissary merely notified the plaintiff he was entitled to free tickets 

and then stopped talking, the defendant might have an argument. But the voice 

went on, suggesting that the plaintiff “visit BConnected online to view all of your 

offers.” The second amended complaint alleges that this site “offered discounts on 

room reservations, coupons/discounts for food purchases,” as well as ostensibly 

“free play” on the casino floor. (Doc. 44 at 5-6). That is, the online “offers,” or at 

least some of them, were offers to sell – not to give away with no strings attached 

– various goods and services. The defendant’s calls patently encouraged the 

plaintiff to visit this site and see what goods and services the defendant had for 

sale. None of the four cases on which the defendant relies support the proposition 

 4 In its reply brief, the defendant insists that “the messages sent to Plaintiff did not 

discuss the commercial availability or quality of any property, goods, or services.” (Doc. 

52 at 5). Although the defendant says it made this argument in its principal brief, (id.), it 

did not, and it is too late to raise it on reply. “District courts, including this one, 

ordinarily do not consider arguments raised for the first time on reply.” Gross-Jones v. 

Mercy Medical, 874 F. Supp. 2d 1319, 1330 n.8 (S.D. Ala. 2012) (citing cases and 

explaining rationale). The defendant offers no reason it should be excused from this rule. 

Since the second amended complaint explicitly alleges that the calls constituted 

“advertisements” under the Act, (Doc. 44 at 3, 5), the Court concludes that no such 

reason exists.

At any rate, the defendant’s argument rests only on its ipse dixit, which simply 

parrots the regulatory definition without any analysis of its language, without any 

discussion of cases considering the definition, and without any comparison of the 

allegations of the second amended complaint to that definition. It is, in a word, 

inadequate even were it to be considered.

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that encouraging a call recipient to review what the caller has for sale is not a “call 

or message for the purpose of encouraging the purchase ... of ... goods, or 

services.” 

On the contrary, the defendant’s cases accentuate the implausibility of its 

position. The defendant believes that Aderhold v. Car2go N.A., 2014 WL 798402 

(W.D. Wash. 2014), helps its case because the Court there rejected the argument 

that a text message directing a newly signed-up member to enter his activation 

code into an e-mailed link, which “ultimately connected to [the defendant’s] 

website which contains promotions for [the defendant’s] service,” constituted 

telemarketing. Id. at *1, 9. But Aderhold actually underscores the problem with 

the defendant’s position. In Aderhold, there was “no indication that the text was 

intended for anything other than the limited purpose stated in its two sentences: to 

permit [the plaintiff] to complete registration.” Id. Here, in stark contrast, the 

defendant’s message explicitly invited the plaintiff to peruse the defendant’s 

offerings of goods and services. 

In Chesbro v. Best Buy Stores, L.P., 705 F.3d 913 (9th Cir. 2012), another of 

the defendant’s authorities, the Court accepted the FCC’s position, as set forth in 

the report and order adopting amendments to Section 64.1200 (the “2003 

Report”),

5 that “so-called ‘dual purpose’ calls, those with both a customer service 

or informational component as well as a marketing component, are prohibited.” 

Id. at 917-18. If calls contain prohibited telemarketing or advertising, “[a]ny 

additional information provided in the calls does not inoculate them.” Id. at 918. 

Thus, any customer service or informational aspect to the defendant’s notification 

that the plaintiff was entitled to free show tickets does not insulate the defendant 

from liability for any advertisement or telemarketing contained elsewhere in the 

same message. 

 5 In the Matter of Rules and Regulations Implementing the Telephone Consumer 

Protection Act of 1991, Report and Order, 18 FCC Rcd. 14014 (F.C.C. July 3, 2003).

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The Chesbro Court also agreed with the FCC’s position that “[a]pplication 

of the prerecorded message rule should turn, not on the caller’s characterization of 

the call, but on the purpose of the message.” 705 F.3d at 918 (internal quotes 

omitted). The Ninth Circuit “approach[ed] the problem with a measure of 

common sense” (as the defendant asks the Court to employ). Id. That is, in 

determining the purpose of the defendant’s calls, a court does not passively accept 

a defendant’s tortured explanation but uses common sense to assess what the 

defendant was truly seeking to accomplish. 

Moreover, “[n]either the statute nor the regulations require an explicit 

mention of a good, product, or service where the implication is clear from the 

context.” Chesbro, 705 F.3d at 918. Nor must the caller’s purpose be an 

immediate sale: “Because the calls encouraged recipients to engage in future 

purchasing activity, they also constituted telemarketing under the DNC [do not 

call] regulation.” Id.

6

Applying these principles to the regulatory definition of telemarketing, the 

question is whether, viewed through the lens of common sense, one purpose of the 

defendant in calling the plaintiff was to encourage him to buy goods or services in 

the future, and neither the defendant’s failure to mention any particular goods or 

services nor a second purpose of offering free tickets is inconsistent with such a 

purpose. As noted, the defendant patently encouraged the plaintiff to view online 

all its offers for sale. Employing common sense, what possible purpose could the 

defendant have for such an encouragement other than that of obtaining future sales 

 6 The Ninth Circuit employed a similar analysis in evaluating whether a 

communication constituted “advertisement.” Because, as noted in text, the defendant 

failed to engage the “advertisement” component of the second amended complaint, the 

Court need not elaborate on how seriously Chesbro damages the defendant’s ability to 

successfully oppose that aspect of the lawsuit.

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to the plaintiff of the goods and services being offered? The defendant suggests 

none.7

Instead, the defendant argues that dual-purpose calls cannot violate the Act 

or its implementing regulations unless (1) the call is made to a residential phone 

(not a cellular phone);8 and (2) the objectionable purpose is “advertisement” (not 

“telemarketing”). (Doc. 52 at 5-6). The Court addresses these contentions in 

reverse order. 

It is true that the FCC discussed dual-purpose calls in the context of 

advertisement, but that appears to be only because the examples presented to it 

involved advertisement.9 The defendant has not attempted to support the 

improbable idea that the FCC considers dual-purpose calls to be prohibited if the 

objectionable purpose is advertisement but considers them to be permissible if the 

objectionable purpose is the equally restricted one of telemarketing. Moreover, 

and as discussed above, the second amended complaint asserts that the calls 

constituted advertisement as well as telemarketing, and the defendant has not 

shown the contrary.

The defendant notes that Section 64.1200(e) provides that subsections (c) 

and (d) apply to calls to wireless numbers “to the extent described in” the 2003 

Report. Because the regulation does not similarly express the scope of subsection 

(a)(2), the defendant concludes the FCC could not have intended the dual purpose 

 7 This silence does not stem from any failure of the plaintiff to point out the 

significance of the “visit BConnected online to view all of your offers” language; the 

second amended complaint and the plaintiff’s brief repeatedly emphasize this language as 

reflecting both “advertisement” and “telemarketing.” (Doc. 44 at 5-6; Doc. 51 at 4, 8-9, 

12). 

8 The defendant understands that the calls to the plaintiff were made to his cell 

phone. (Doc. 47 at 12, 14).

9 The FCC identified these examples as calls “from mortgage brokers to their 

clients notifying them of lower interest rates, calls from phone companies to customers 

regarding new calling plans, or calls from credit card companies offering overdraft 

protection to existing customers.” 2003 Report at 14098, ¶ 142.

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prohibition (which the 2003 Report recognized) to extend to calls made to cell 

phones. Unlike subsection (a)(2), subsections (c) and (d) by their terms apply only 

to “residential” numbers; thus, some version of subsection (e) was necessary in 

order to extend the provisions of subsections (c) and (d) to cellular numbers. It is 

unclear why subsection (e) refers to the 2003 Report rather than simply saying, as 

the report states, that “these rules [subsections (c) and (d)] apply to calls made to 

wireless telephone numbers,” 2003 Report at 14116, ¶ 167, but it seems clear the 

purpose was not to limit the scope of the dual-purpose prohibition to residential 

lines. On the contrary, the 2003 Report expressly confirms the FCC’s “belie[f] 

that wireless subscribers should be afforded the same protections as wireline 

subscribers.” Id. 

Having failed to demonstrate that the dual-purpose prohibition is legally 

inapplicable, the defendant suggests it is factually inapplicable. According to the 

defendant, “[t]he single purpose of the messages left for Plaintiff was 

informational ....” (Doc. 52 at 8 (emphasis added)). As discussed above, in light 

of the “visit BConnected online to view all of your offers” language (which the 

defendant consistently ignores), this assertion is facially untenable.

The plaintiff argues that, even without this smoking-gun language, the real 

purpose of the calls was clearly that of encouraging the purchase of goods and 

services. He reasons that neither casinos nor other rational businesses give 

customers free goods and services out of altruistic motives, but rather do so with 

the calculated aim of enticing the recipient to couple the freebie with the purchase 

of other items. (Doc. 51 at 5, 9-12). In support, the plaintiff notes the FCC’s 

observation that “[o]ffers for free goods or services that are part of an overall 

marketing campaign to sell property, goods, or services constitute” advertisement 

under its regulations. 2003 Report at 14098, ¶ 140. The defendant ignores the 

plaintiff’s rather plausible argument but, given the defendant’s express 

encouragement to the plaintiff to view offers for sale, the Court need not decide 

whether it would alone carry the day.

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In summary, the defendant has failed to show that its messages, as a matter 

of law, do not constitute “advertisement” or “telemarketing.” Its motion to 

dismiss therefore must be denied.

II. Motion to Strike.

The plaintiff moved for leave to file a second amended complaint, attaching 

a copy of the proposed pleading and describing the changes wrought. (Doc. 37). 

The Court granted the motion over objection. (Doc. 42). The plaintiff then filed a 

second amended complaint, but not the version he had represented he would file. 

(Doc. 44). The defendant moves to strike the second amended complaint on this 

basis. (Doc. 47 at 22-26).

The plaintiff argues that he “did nothing improper” because: (1) he moved 

for leave to file a second amended complaint “substantively similar to the draft 

attached hereto” and did not represent that he would file the proposed pleading as 

presented; (2) the Court’s order granting leave to amend “did not restrict the leave 

to filing exactly what was attached to the motion”; and (3) he did everyone a favor 

by making changes that he believes moot the futility objections raised by the 

defendant in opposing the motion for leave to amend. (Doc. 51 at 19-21). 

Whatever the plaintiff may have believed, the Court granted leave to file 

only the proposed second amended complaint attached to the motion for leave to 

amend. Only that document has been subjected to review by the Court and 

objection by the defendant, so only that document has been or could be approved 

for filing.10 Language such as “substantively similar” may (or may not) preserve a 

plaintiff’s ability to correct typographical errors, but it does not reserve to him the 

 10 The District’s Administrative Procedures for Filing, Signing, and Verifying 

Documents by Electronic Means specify that, “[i]f the document you wish to file requires 

leave of Court, such as an amended complaint or a document to be filed out of time, the 

proposed document shall be attached as an exhibit to the motion.” (Id. at 11). What must 

be attached to the motion is “the document you wish to file,” not an unfinalized draft of 

the document desired to be filed. 

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right to make whatever changes to the document he likes after the Court has 

permitted its filing. No doubt the plaintiff’s intentions were honorable, but such a 

practice opens the door to all sorts of potential abuses. Because the plaintiff filed 

the second amended complaint without judicial authorization or the defendant’s

written consent, Fed. R. Civ. P. 15(a)(2), the pleading must be stricken.

The defendant’s motion to strike the class allegations addresses in part 

allegations that appear in the second amended complaint but not in the first 

amended complaint. Since the second amended complaint is being stricken, the 

motion to strike the class allegations is due to be denied as moot.11

CONCLUSION

For the reasons set forth above, the defendant’s motion to dismiss is 

denied, its motion to strike the second amended complaint is granted, and its 

motion to strike the class allegations is denied as moot. The second amended 

complaint is stricken.

DONE and ORDERED this 6th day of May, 2015.

s/ WILLIAM H. STEELE

CHIEF UNITED STATES DISTRICT JUDGE

 11 Because the defendant’s motion to strike is couched as a back-up alternative to 

its primary motion to dismiss, striking the second amended complaint does not affect the 

controlling effect of the Court’s ruling on the legal issue presented in the motion to 

dismiss. Nor would the Court’s ruling differ had the motion to dismiss been addressed to 

the first amended complaint.

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