Villanueva v. Community Hob Automotive, LLC

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
ANYANA VILLANUEVA,
Plaintiff.
V.
COMMUNITY HOB AUTOMOTIVE,
LLC,
Defendant.
§
§
§
§
§
§
§
§
§
§
CIVIL ACTION NO. 3:25-cv-00139
MEMORANDUM AND RECOMMENDATION
Defendant Community Hob Automotive, LLC (“Community Honda”) has
filed a motion to dismiss and, in the alternative, motion for summary judgment.
See Dkt. 17. Having reviewed the briefing, the record, and the applicable law, I
recommend that the motion be denied.
BACKGROUND1
Community Honda is an automobile dealer in Baytown, Texas. Plaintiff
Anyana Villanueva visited Community Honda in early 2025. On March 4, 2025,
Community 	Honda 	texted 	Villanueva 	several 	times 	about 	her 	recent 	visit.
Community Honda’s messages indicated that Villanueva could “[r]eply STOP” to
opt out of receiving messages. Dkt. 1 at 4. Villanueva replied “STOP” to Community
Honda 	on 	the 	morning 	of 	March 	10, 	2025. 	Despite 	Villanueva’s 	request,
Community Honda sent text messages to Villanueva on the afternoon of March 10
and March 13, 2025. On April 1, 2025, Community Honda left Villanueva a
voicemail.
1 These allegations are taken from Villanueva’s complaint. At the motion to dismiss stage,
I accept “all well-pleaded facts as true, viewing them in the light most favorable to
[Villanueva].” Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 467
(5th Cir. 2004) (quotation omitted).
United States District Court
Southern District of Texas
ENTERED
June 16, 2026
Nathan Ochsner, Clerk
Case 3:25-cv-00139 Document 30 Filed 06/16/26 in TXSD Page 1 of 9

2
On May 8, 2025, Villanueva instituted this putative class action, asserting
claims under the Telephone Consumer Protection Act of 1991 (“TCPA”). On June
12, 2025, Community Honda filed its answer. On February 27, 2026, Community
Honda 	moved 	to 	dismiss 	Villanueva’s 	claims 	under 	Federal 	Rules 	of 	Civil
Procedure 12(b)(1), 12(b)(6), and 12(h)(3). Community Honda also suggests that
the court strike Villanueva’s class allegations under Rule 12(f). In the alternative,
Community Honda asks the court to grant summary judgment.
LEGAL STANDARDS
A. 	S UBJECT M ATTER JURISDICTION
“Subject matter jurisdiction defines the court’s authority to hear a given type
of case; it represents the extent to which a court can rule on the conduct of persons
or the status of things.” Carlsbad Tech., Inc., v. HIF Bio, Inc., 556 U.S. 635, 639
(2009) 	(cleaned 	up). 	“Standing 	is 	a 	component 	of 	subject 	matter
jurisdiction.” Ortiz v. Am. Airlines, Inc., 5 F.4th 622, 627 (5th Cir. 2021) (quotation
omitted). The requirement that a party have standing to bring suit flows from
Article III of the Constitution, which limits the scope of federal judicial power to
the adjudication of “cases” or “controversies.” U.S. Const. art. III, § 2. The
irreducible minimum of Article III standing requires that Villanueva “have an
injury 	in 	fact; 	that 	injury 	must 	be 	traceable 	to 	the 	challenged 	conduct 	of
[Community Honda]; and a favorable judgment must be likely to redress that
injury.” Cranor v. 5 Star Nutrition, L.L.C., 998 F.3d 686, 689 (5th Cir. 2021).
Federal Rules of Civil Procedure 12(b)(1) and 12(h)(3) permit a court to
dismiss an action if it does not have subject matter jurisdiction. “The objection that
a federal court lacks subject-matter jurisdiction, see Fed. Rule Civ. Proc. 12(b)(1),
may be raised by a party, or by a court on its own initiative, at any stage in the
litigation, even after trial and the entry of judgment.” Arbaugh v. Y&H Corp., 546
U.S. 500, 506 (2006). This is because “Rule 12(h)(3) instructs: ‘Whenever it
appears by suggestion of the parties or otherwise that the court lacks jurisdiction
of the subject matter, the court shall dismiss the action.’” Id.
Case 3:25-cv-00139 Document 30 Filed 06/16/26 in TXSD Page 2 of 9

3
B. 	R ULE 12(b)(6)/RULE 12( C)
Rule 12(b)(6) provides a basis for dismissal when the plaintiff has failed to
state claim upon which relief can be granted. A motion under Rule 12(b)(6) must
be made before the defendant files a responsive pleading. See Fed. R. Civ. P. 12(b).
Because Community Honda filed an answer before filing its motion to dismiss,
Rule 12(b)(6) is inapplicable.
Rule 12(c), however, allows a defendant to move for a judgment on the
pleadings after filing an answer to the complaint. See Fed. R. Civ. P. 12(c) (“After
the pleadings are closed—but early enough not to delay trial—a party may move for
judgment on the pleadings.”). Like Rule 12(b)(6), Rule 12(c) “is designed to dispose
of cases where the material facts are not in dispute and a judgment on the merits
can be rendered by looking to the substance of the pleadings and any judicially
noticed facts.” Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d
305, 312 (5th Cir. 2002) (quotation omitted). An untimely Rule 12(b)(6) motion
may be construed as a Rule 12(c) motion for judgment on the pleadings. See Jones
v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999)
The standard for a Rule 12(c) motion is the same as the standard for a Rule
12(b)(6) motion. See Gentilello v. Rege, 627 F.3d 540, 543–44 (5th Cir. 2010). A
Rule 12(b)(6) motion tests the sufficiency of the complaint against the requirement
that the complaint contain “a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“Determining whether a complaint states a plausible claim for relief [is] . . . a
context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S. at 679. In ruling on a motion to
dismiss, my “review is limited to the complaint, any documents attached to the
complaint, and any documents attached to the motion to dismiss that are central
Case 3:25-cv-00139 Document 30 Filed 06/16/26 in TXSD Page 3 of 9

4
to the claim and referenced by the complaint.” Lone Star Fund V (U.S.), L.P. v.
Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). Because a complaint must
be liberally construed in favor of the plaintiff, “a motion to dismiss under Rule
12(b)(6) is viewed with disfavor and is rarely granted.” IberiaBank Corp. v. Ill.
Union Ins. Co., 953 F.3d 339, 345 (5th Cir. 2020) (quotation omitted).
C. 	R ULE 12(f)
Rule 12(f) permits a district court to “strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or scandalous matter.” Rule
12(f) further provides that a district “court may act: (1) on its own; or (2) on motion
made by a party either before responding to the pleading or, if a response is not
allowed, within 21 days after being served with the pleading.” As explained by
Wright and Miller:
The authority given the court by the rule to strike [pleadings] “on its
own” has been interpreted to allow the district court to consider
untimely motions to strike and to grant them if doing so seems proper.
This judicial discretion is appropriate since in many instances a
motion to strike redundant, impertinent, immaterial, or scandalous
matter is designed to eliminate allegations from the pleadings that
might cause prejudice at some later point in the litigation. In light of
this, the time limitations set out in Rule 12(f) should not be applied
strictly when the motion to strike seems to have merit.
5C Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1380 (3d
ed. 1998) (cleaned up).
“An order striking class allegations is functionally equivalent to an order
denying class certification.” Elson v. Black, 56 F.4th 1002, 1006 (5th Cir. 2023)
(quoting Microsoft Corp. v. Baker, 582 U.S. 23, 34 n.7 (2017)). “If the viability of
a class depends on factual matters that must be developed through discovery, a
motion to strike will be denied pending the full-blown certification motion.”
Siringi v. Parkway Fam. Mazda/Kia, 349 F.R.D. 641, 643 (S.D. Tex. 2023)
(quotation omitted).
Case 3:25-cv-00139 Document 30 Filed 06/16/26 in TXSD Page 4 of 9

5
ANALYSIS
A. 	S UBJECT M ATTER JURISDICTION
Although Community Honda purports to challenge this court’s subject
matter jurisdiction under Rules 12(b)(1) and 12(h)(3), it fails to articulate how
Villanueva lacks standing. Villanueva alleges that Community Honda’s “unwanted
telemarketing text messages caused Plaintiff actual harm, including invasion of her
privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion.
Defendant’s text messages also inconvenienced Plaintiff and caused disruption to
her daily life.” Dkt. 1 at 9. This is sufficient to allege an injury in fact attributable to
Community Honda. See Cranor, 998 F.3d at 692. Thus, Villanueva has standing
to bring claims under the TCPA.
B. 	M OTION FOR JUDGMENT ON THE PLEADINGS
Next, I turn to Community Honda’s contention that dismissal is warranted
for Villanueva’s alleged failure to state a claim.
The TCPA allows any “person who has received more than one telephone call
within any 12-month period by or on behalf of the same entity in violation of the
regulations prescribed under this subsection” to bring a private action based on a
violation of said regulations, which were promulgated to protect telephone
subscribers’ privacy rights to avoid receiving telephone solicitations to which they
object. 47 U.S.C. § 227(c)(5). Those regulations provide as follows:
No person or entity shall initiate any . . . call for telemarketing
purposes to a residential telephone subscriber unless such person or
entity has instituted procedures for maintaining a list of persons who
request not to receive such calls made by or on behalf of that person
or entity. The procedures instituted must meet certain minimum
standards, including:
. . . .
(3) Recording, disclosure of do-not-call requests. If a person or
entity making . . . any call for telemarketing purposes (or on whose
behalf such a call is made) receives a request from a residential
telephone subscriber not to receive calls from that person or entity,
the person or entity must record the request and place the subscriber's
name, if provided, and telephone number on the do-not-call list at the
Case 3:25-cv-00139 Document 30 Filed 06/16/26 in TXSD Page 5 of 9

6
time the request is made. Persons or entities making such calls (or on
whose 	behalf 	such 	calls 	are 	made) 	must 	honor 	a 	residential
subscriber’s do-not-call request within a reasonable time from the
date such request is made. This period may not exceed ten (10)
business days from the receipt of such request.
. . . .
(6) Maintenance of do-not-call lists. A person or entity making
. . . any call for telemarketing purposes must maintain a record of a
consumer’s request not to receive further calls. A do-not-call request
must be honored for 5 years from the time the request is made.
47 C.F.R. § 64.1200(d). These requirements extend to “any person or entity making
telephone 	solicitations 	or 	telemarketing 	calls 	or 	text 	messages 	to 	wireless
telephone numbers.” Id. § 64.1200(e). “[T]elemarketing means 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)(13).
Villanueva easily satisfies the basic pleading requirements. She alleges
receiving telemarketing calls and/or text messages from Community Honda
promoting auto sales on March 4, 2025, March 10, 2025, March 13, 2025, and April
1, 2025. See Dkt. 1 at 4–7. Villanueva also alleges that (i) she “made requests to
Defendant not to receive calls from Defendant”; (ii) “received more than one text
message in a 12-month period made by or on behalf of [Community Honda]”; and
(iii) Community Honda “has not instituted procedures for maintaining a list of
persons who request not to receive telemarketing calls made by or on . . . their
behalf.” Id. at 13. Taking Villanueva’s well-pleaded facts as true, as I must, she
sufficiently states a claim for violations of the TCPA.
Community Honda contends that Villanueva’s claims must be dismissed
because 	she 	fails 	to 	plead 	a 	“telephone 	solicitation” 	under 	the 	TCPA. 	As
Community 	Honda 	puts 	it, 	Villanueva 	“invited 	[Community 	Honda’s]
communications,” which takes her outside of the TCPA’s protections. Dkt. 17 at 13.
In making this argument, Community Honda fails to consider Villanueva’s
allegation that she revoked her consent to receive messages from Community
Case 3:25-cv-00139 Document 30 Filed 06/16/26 in TXSD Page 6 of 9

7
Honda on March 10, 2025, and that Community Honda continued to contact
Villanueva after she revoked her consent. The FCC regulations provide that “[a]
called party may revoke prior express consent, . . . by using any reasonable method
to clearly express a desire not to receive further calls or text messages from the
caller 	or 	sender.” 	47 	C.F.R. 	§ 64.1200(a)(10); 	see 	also 	id. 	§ 64.1200(a)(11).
Villanueva’s text message reading “STOP” on the morning of March 10, 2025,
“constitutes a reasonable means per se to revoke consent.” Id. § 64.1200(a)(10).
Thus, Villanueva states a TCPA claim.3
C. 	M OTION TO S TRIKE CLASS A LLEGATIONS
Community Honda’s central argument in its motion to dismiss is that
Villanueva has failed to satisfy the Rule 23(a) prerequisites for a class action.
Plaintiffs 	seeking 	class 	certification 	must 	satisfy 	four 	elements:
(1) numerosity, 	(2) 	commonality, 	(3) 	typicality, 	and 	(4) 	adequacy 	of
representation. See Fed. R. Civ. P. 23(a). Numerosity requires that “the class is so
numerous that joinder of all members is impracticable.” Id. 23(a)(1). Commonality
requires that “there are questions of law or fact common to the class.” Id. 23(a)(2).
Typicality requires that “the claims or defenses of the representative parties are
typical of the claims or defenses of the class.” Id. 23(a)(3). Adequacy requires that
the representative party and the named class counsel “will fairly and adequately
protect the interests of the class.” Id. 23(a)(4).
Once Villanueva satisfies the Rule 23(a) factors, she must demonstrate that
this is a case in which “questions of law or fact common to class members
predominate over any questions affecting only individual members, and that a
class action is superior to other available methods for fairly and efficiently
adjudicating 	the 	controversy.” 	Id. 	23(b)(3). 	When 	Villanueva 	seeks 	class
3 Both parties attach evidence in support of their motion to dismiss briefing. None of the
evidence, however, is attached to the complaint, referenced in the complaint, or central
to Villanueva’s claim. See Lone Star Fund, 594 F.3d at 387. Thus, I will not consider the
evidence in deciding the motion to dismiss. Even if I considered the evidence, this case is
riddled with fact issues that render summary judgment inappropriate.
Case 3:25-cv-00139 Document 30 Filed 06/16/26 in TXSD Page 7 of 9

8
certification, she will “bear the burden of proof to establish that the proposed class
satisfies the requirements of Rule 23.” M.D, ex rel. Stukenberg v. Peny, 675 F.3d
832, 837 (5th Cir. 2012). We are not, however, at the class certification stage of this
proceeding.
Villanueva brings this action on behalf of the proposed class, defined as:
National Internal Do Not Call Class: All persons within the
United States who, within the four years prior to the filing
of this Complaint, were sent a text message from Defendant
or 	anyone 	on 	Defendant’s 	behalf, 	to 	said 	person’s
residential telephone number after making a request to
Defendant to not receive future text messages.
Dkt. 1 at 9.
I will not strike Villanueva’s class allegations. Motions to strike should be
“sparingly used.” Augustus v. Bd. of Pub. Instruction of Escambia Cnty., 306 F.2d
862, 868 (5th Cir. 1962) (quotation omitted). This case is at the pleading stage.
Villanueva has not had the opportunity to flesh out her class claims in discovery.
Although a district court may dismiss class allegations “[w]here it is facially
apparent from the pleadings that there is no ascertainable class,” John v. Nat’l Sec.
Fire and Cas. Co., 501 F.3d 443, 445 (5th Cir. 2007), this is not one of those cases.
Villanueva alleges facts that make it plausible she can satisfy each of Rule 23’s
requirements after discovery is conducted. This renders dismissal improper.
Community Honda offers several reasons as to why Villanueva will fail to
establish a class. Community Honda’s “arguments do not establish that it is
‘facially apparent’ from the complaint that [Villanueva’s] proposed class[] [is]
uncertifiable.” Siringi, 349 F.R.D. at 646. For example, Community Honda argues
that “whether a plaintiff consented to a telephone solicitation under the TCPA [is
an issue that] must be determined on an individual basis and not a class-wide
basis.” Dkt. 17 at 11. “That [Community Honda] may have valid affirmative
defenses against some unknown number of class members does not defeat
certification.” Siringi, 349 F.R.D. at 646 (collecting cases denying motions to strike
TCPA class allegations based on alleged individualized issues of consent). Overall,
Case 3:25-cv-00139 Document 30 Filed 06/16/26 in TXSD Page 8 of 9

9
I find Community Honda’s “arguments regarding the legality of [Villanueva]’s
class claims more appropriately addressed after the parties engage in discovery
and further develop the nature of [Villanueva]’s claims.” Delarue v. State Farm
Lloyds, No. 1:09-cv-237, 2010 WL 11530499, at *4 (E.D. Tex. Mar. 10, 2010).
Community Honda can challenge the viability of the class once Villanueva moves
for class certification.
CONCLUSION
For the reasons discussed above, I recommend that Community Honda’s
motion to dismiss (Dkt. 17) be denied. I further recommend that Villanueva be
ordered to file a class certification motion within 30 days after the date this
Memorandum and Recommendation is adopted.
The 	parties 	have 	14 	days 	from 	service 	of 	this 	Memorandum 	and
Recommendation to file written objections. See 28 U.S.C. § 636(b)(1)(C); Fed. R.
Civ. P. 72(b)(2). Failure to file timely objections will preclude appellate review of
factual findings and legal conclusions, except for plain error.
SIGNED this 	day of June 2026.
______________________________
ANDREW M. EDISON
UNITED STATES MAGISTRATE JUDGE
Case 3:25-cv-00139 Document 30 Filed 06/16/26 in TXSD Page 9 of 9