Brennan Landy v. Vision Solar, LLC d/b/a Solar Exchange, No. 21-20241 2023 WL 4578993 (D.N.J. July 18, 2023)
In this case, Plaintiff filed a putative class action alleging Defendant violated the Telephone Consumer Protection Act, 47 U.S.C. § 227(c), by placing more than one unsolicited telemarketing call during a 12-month period without consent to consumers who registered their telephone numbers on the National Do Not Call Registry. The Original Complaint identified Defendant as “Vision Solar, LLC d/b/a Solar Exchange.” Defendant filed a motion to dismiss, arguing that no such entity existed, and Plaintiff wrongly attempted to combine two distinct and separate entities as a single entity without any support for using the legally operative d/b/a designation.
The Court agreed, but gave Plaintiff leave to amend the Complaint to sufficiently set forth Defendant’s identity. The Amended Complaint was met with another Motion to Dismiss, again contending that Plaintiff failed to sufficiently identify Defendant. Plaintiff responded, arguing that the Amended Complaint was filed against Defendant “Visions Solar, LLC”—and Plaintiff alleged, “on information and belief,” that Vision conducts at least a portion of its business under the name “Solar Exchange.”
Rejecting this contention, the Court agreed with Defendant that the Amended Complaint should be dismissed. In reaching this conclusion, the Court noted that despite Plaintiff’s claim that the Amended Complaint sought relief against only one defendant, Plaintiff did not amend the caption of the case or remove any reference to “d/b/a Solar Exchange” throughout the Amended Complaint. While Plaintiff argued that the d/b/a designation was a “factual allegation,” which at the motion to dismiss stage must be taken as true, the Court disagreed, characterizing it as “an impermissible legal conclusion,” adding that the Amended Complaint improperly “continue[d] to combine two distinct and separate entities as a single entity without any support for using the legally operative ‘d/b/a’ designation or attempt to link the two entities in the Amended Complaint.”
The Court also rejected Plaintiff’s reliance on a 2019 press release from a third party including the name “Vision Solar, LLC doing business as Solar Exchange,” concluding that it was “an insufficient foundation for the connection between Vision Solar and Solar Exchange.” Significant to the Court was the fact that Plaintiff failed to provide any legally reliable or verified document establishing “Vision Solar, LLC d/b/a Solar Exchange” as the name of any registered and/or legally recognizable entity.
Finally, the Court concluded Plaintiff’s allegation that “during one of the calls [ ], the call center operator stated that Solar Exchange and Vision are ‘partner companies[,]’” did not save the Amended Complaint from dismissal because that allegation contradicted Plaintiff’s belief that the companies were one and the same. Because Plaintiff had already been granted leave to try and cure the pleading deficiency, and failed to do so, the Amended Complaint was dismissed with prejudice.
A copy of the Court’s opinion can be accessed by clicking here.
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