Bank v. Spark Energy, LLC. ( 2021 )

20-4071-cv
Bank v. Spark Energy, LLC.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
3 City of New York, on the 8th day of June, two thousand twenty-one.
4
5 PRESENT: RAYMOND J. LOHIER, JR.,
6 WILLIAM J. NARDINI,
7 Circuit Judges,
8 RACHEL P. KOVNER,*
9 Judge.
10 ------------------------------------------------------------------
11 TODD C. BANK, INDIVIDUALLY
12 AND ON BEHALF OF ALL
13 OTHERS SIMILARLY SITUATED,
14
15 Plaintiff-Appellant,
16
17 v. No. 20-4071-cv
18
19 SPARK ENERGY, LLC,
20
* Judge Rachel P. Kovner, of the United States District Court for the Eastern District of
New York, sitting by designation.
1 Defendant-Appellee.
2 ------------------------------------------------------------------
3 FOR PLAINTIFF-APPELLANT: TODD C. BANK, pro se, Kew
4 Gardens, NY
5
6 FOR DEFENDANT-APPELLEE: WILLIAM R. PETERSON
7 (Michelle D. Pector, on the
8 brief), Morgan, Lewis &
9 Bockius LLP, Houston, TX
10
11 Appeal from a judgment of the United States District Court for the Eastern
12 District of New York (Pamela K. Chen, Judge).
13 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
14 AND DECREED that the judgment of the District Court is AFFIRMED.
15 Plaintiff-Appellant Todd Bank, an attorney appearing pro se, appeals from
16 a judgment entered November 24, 2020 by the United States District Court for
17 the Eastern District of New York (Chen, J.), dismissing his complaint against
18 Spark Energy, LLC and denying leave to amend. Bank sued Spark on behalf of
19 himself and three proposed classes, alleging violations of (1) the Telephone
20 Consumer Protection Act (TCPA), 47 U.S.C. § 227(b)(1)(A)(iii), (B); (2) the federal
21 regulation concerning telephonic solicitation to telephone numbers on the
22 National Do-Not-Call Registry, 47 C.F.R. § 64.1200(c)(2); and (3) a New York law
2
1 requiring that telemarketers disclose certain information in automated phone
2 messages, N.Y. Gen. Bus. Law (GBL) § 399-p(3)(a). We assume the parties’
3 familiarity with the underlying facts and prior record of proceedings, to which
4 we refer only as necessary to explain our decision to affirm.
5 We review de novo the dismissal of Bank’s complaint pursuant to Federal
6 Rule of Civil Procedure 12(b)(6), accepting the complaint’s factual allegations as
7 true and drawing all reasonable inferences in Bank’s favor. Forest Park Pictures
8 v. Universal Television Network, 683 F.3d 424, 429 (2d Cir. 2012). To survive a
9 motion to dismiss under Rule 12(b)(6), the complaint must plead “enough facts
10 to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
11 Twombly, 550 U.S. 544, 570 (2007). We review the District Court’s denial of
12 leave to amend for abuse of discretion. Fund Liquidation Holdings LLC v.
13 Bank of Am. Corp., 991 F.3d 370, 380 (2d Cir. 2021). As a licensed attorney,
14 Bank is not entitled to the special solicitude generally afforded to pro se litigants.
15 See Tracy v. Freshwater, 623 F.3d 90, 101–02 (2d Cir. 2010).
16 The District Court properly dismissed Bank’s TCPA claim because the
17 complaint does not adequately plead that Spark was responsible for the alleged
3
1 calls. Although Bank alleges that Spark initiated telephone calls using a
2 prerecorded message “for the purpose of encouraging the purchase or rental of
3 [its] energy-discount services,” he also alleges that the prerecorded messages
4 “did not state the name of the person on whose behalf” they were placed. The
5 complaint does not allege that any portion of the calls was not prerecorded. We
6 agree with the District Court’s conclusion that under these circumstances the
7 complaint’s allegation that Spark placed the calls is conclusory.
8 Bank’s claim relating to the National Do-Not-Call Registry was also
9 properly dismissed because the complaint does not allege that his telephone
10 number is on the Registry. Bank argues that the Registry is a public record
11 amenable to judicial notice, but because he never identified his phone number,
12 the District Court could not take judicial notice of its inclusion on the Registry.
13 The District Court also did not abuse its discretion in denying Bank’s
14 request for leave to amend the complaint. Leave to amend may be denied “for
15 good reason, including futility, bad faith, undue delay, or undue prejudice to the
16 opposing party.” TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 505 (2d Cir.
4
1 2014) (quotation marks omitted). We see no reason to disturb the District
2 Court’s finding of bad faith.
3 Finally, having properly dismissed Bank’s federal claims and denied leave
4 to amend, the District Court did not abuse its discretion in declining to exercise
5 supplemental jurisdiction over his state-law claim. See Motorola Credit Corp.
6 v. Uzan, 388 F.3d 39, 56 (2d Cir. 2004).
7 We have considered Bank’s remaining arguments and conclude that they
8 are without merit. For the foregoing reasons, the judgment of the District Court
9 is AFFIRMED.
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe, Clerk of Court
5