Parroting the Elements of the Statute—Without Pleading Any Substantive Facts—Isn’t Good Enough Under Rule 8 for the District of Connecticut

The United States District Court for the District of Connecticut recently granted a Defendant’s motion to dismiss Plaintiffs’ TCPA claims because Plaintiffs failed to adequately allege facts supporting an inference that Defendant (1) used an automatic telephone dialing system (“ATDS”) and (2) failed to maintain an internal do-not-call list. Sterling v. Securus Technologies, Inc., 2020 WL 2198095 (D. Conn. May 6, 2020). Plaintiffs originally sued multiple Defendants for negligent and willful violations of the TCPA. Id. at *1. Defendants removed the case to federal court and filed motions to dismiss the original Complaint. Id. Plaintiff amended, and Defendants again moved to dismiss. Id. The Court dismissed all claims against Defendants. Id. The Court then granted Plaintiffs’ motion for leave to file a Second Amended Complaint. Id. at *2. Plaintiffs’ Second Amended Complaint only named Defendant Securus, and Defendant again moved to dismiss. Id.

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District of Massachusetts Grants Dismissal of Threadbare ATDS Claims

The U.S. District Court for the District of Massachusetts recently granted a TCPA defendant’s motion to dismiss, in part, because the plaintiff failed to allege plausible facts supporting an assertion that the defendant, QuoteWizard, used an ATDS to send two text messages to his phone. Mantha v. QuoteWizard.com, LLC, No. 19-cv-12235, 2020 WL 1274178 (D. Mass. Mar. 16, 2020). The case highlights an important point, namely that defendants can still prevail on ATDS-related claims at the motion to dismiss stage, even despite a recent decision from the jurisdiction applying the expansive definition of an ATDS from the Ninth Circuit’s opinion in Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1043 (9th Cir. 2018). See, e.g., Gonzalez v. HOSPO Corp., 371 F. Supp. 3d 26, 34 (D. Mass. 2019) (applying the Marks definition of an ATDS).

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Florida Federal Court Rejects ATDS Allegations, Grants Motion to Dismiss

In a text message case, the U.S. District Court for the Southern District of Florida recently granted Atlantic Coast Enterprise, LLC’s (“Ace”) motion to dismiss upon finding that the plaintiff had failed to plausibly allege Ace’s use of an automatic telephone dialing system (“ATDS”). See Turizo v. Jiffy Lube International, Inc., et al., No. 19-61140, 2019 WL 4737696 (S.D. Fla. Sept. 27, 2019) (available here).

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From the Four Corners of the Pleading: Plaintiffs Cannot Rely On Factual Allegations Outside the Pleadings To Defeat a Motion to Dismiss

The Northern District of Texas recently dismissed a TCPA claim because “the Complaint nowhere alleges that he was called or texted using an ATDS.” The Court’s opinion emphasized that simply asserting that “the text messages were ‘automated’” was not sufficient to state a TCPA claim, and that plaintiffs cannot casually add new factual allegations in their oppositions to a motion to dismiss.

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N.D. Ohio Court Dismisses TCPA Claim, Finding Insufficient Allegations Regarding Consent

The Northern District of Ohio recently granted a motion to dismiss a TCPA claim because the plaintiff failed to allege plausibly that he had not consented to receive the calls.  Whiteacre v. Nations Lending Corp., et al., No. 19-CV-809, 2019 WL 3477262 (N.D. Ohio Jul. 31, 2019).  The decision reinforces the requirement that to plead a TCPA claim, the plaintiff cannot rely on conclusory allegations that he never consented (or revoked any consent that was previously provided).  To state a plausible claim, the complaint must provide factual allegations, not mere labels or legal conclusions.

Plaintiff alleged that defendants Nations Lending Corporation and its alleged loan servicer, LoanCare, violated the TCPA when LoanCare called him through an automated voice messaging system.  Id. at *2.  The Plaintiff alleged that he “expressed his lack of consent to automated calls,” but the court noted that “Plaintiff does not describe how he ‘expressed his lack of consent,’ nor does he give any other details about the prerecorded calls.”  Id. at *3 (emphasis added).  Defendants moved to dismiss the TCPA claim, arguing that Plaintiff’s conclusory allegations failed as a matter of law.

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Northern District of Illinois Finds Plaintiff Failed to Adequately Allege Use of an ATDS

In a recent Northern District of Illinois case, a plaintiff’s TCPA claim was dismissed after the court found that the complaint did not contain sufficient facts to plausibly allege the defendant had used an ATDS. See Bader v. Navient Solutions, LLC, No. 18-1367, 2019 WL 2491537 (N.D. Ill. June 14, 2019). This is yet another example of a case in which a plaintiff failed to plead the use of an ATDS under post-ACA International v. Federal Communications Commission, 885 F.3d 687, 693 (D.C. Cir. 2018) standards. Continue reading   »

Court Dismisses TCPA Claim, Finds Plaintiff’s Arguments Waived

The Central District of California recently dismissed claims arising from allegedly unsolicited calls using an ATDS, finding that the plaintiff had waived her arguments by failing to address the defendant’s arguments in her response to the defendant’s motion to dismiss. See Hollis v. LVNV Funding, No. 18-1866, 2019 WL 1091336 (C.D. Cal. Jan. 2, 2019). The court found the dismissal justifiable given the plaintiff’s failure to plead her claim with specificity and her failure to cite to the specific portion of the TCPA that she believed had been violated. Id. at *5.

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California District Court Sends Plaintiff Back to the Drawing Board to Clarify Which of Six Defendants Actually Called Him

Plaintiffs often employ the spaghetti-against-the-wall tactic of asserting every conceivable claim against every conceivable defendant. But as a recent decision from the Southern District of California confirms, this strategy is not without risk.

In Ewing v. Encor Solar, LLC, No. 18-2247, 2019 WL 277386 (S.D. Cal. Jan. 22, 2019), the court dismissed a TCPA claim with leave to amend because the plaintiff had failed to allege a fundamental fact: which of the six named defendants actually called him. Continue reading   »

Northern District of California Rejects First Amendment Challenge to the TCPA

A federal judge in the Northern District of California recently denied a motion to dismiss a putative class action accusing Facebook of violating the TCPA by sending text messages reminding users about their friends’ birthdays. In so doing, the court rejected Facebook’s First Amendment challenge and found that the TPCA survived strict scrutiny. Brickman v. Facebook, Inc., No. 16-0751, 2017 U.S. Dist. LEXIS 11849 (C.D. Cal. Jan. 27, 2017).  Continue reading   »

Court Dismisses TCPA Suit for Failure to Adequately Allege Seller’s Vicarious Liability

The Northern District of Ohio recently dismissed a TCPA action because the plaintiff failed to allege any facts from which the court could conclude that the defendant was directly or vicariously liable for the alleged calls. See Seri v. CrossCountry Mortgage, Inc., No. 16-01214, 2016 WL 5405257 (N.D. Ohio Sept. 28, 2016).

In Seri, the plaintiff alleged that defendant Direct Source – a telemarketing vendor – made at least twenty unsolicited telemarketing calls to the plaintiff’s cellular telephone using an ATDS.  He further alleged that defendant CrossCountry Mortgage, Inc. (“CrossCountry”) regularly had third-party telemarketers make telemarketing calls on its behalf and had an “extensive relationship” with Direct Source. Continue reading   »