Florida Federal Court Grants Rule 12(b)(6) Motion For Failure To Satisfy Twombly/Iqbal Pleading Standard In TCPA Case

In a TCPA action involving allegedly unsolicited cellular telephone calls made using an automated telephone dialing system (“ATDS”), the Middle District of Florida ruled that plaintiff had merely recited the elements for a claim under the TCPA rather than allege adequate factual support, and dismissed plaintiff’s complaint without prejudice. See Hunter v. Diversified Consultants, Inc., No. 8:14-cv-2198, 2014 U.S. Dist. LEXIS 165355 (M.D. Fla. Nov. 26, 2014). The complaint contained only the following factual allegations: First, that “[d]uring the past 48 months prior to the filing of this complaint, Defendant contacted Plaintiffs’ [sic] cell phone without express permission with an automated dialing system”; and second, “Defendant called Plaintiffs’ [sic] cell phone intentionally and repeatedly, without express permission and with an automated telephone dialing system…” Id. at *2.

Although the Court acknowledged it must accept all factual allegations set forth in the complaint and view them in the light most favorable to the plaintiff, it also noted that conclusory allegations, unwarranted factual deductions, and legal conclusions will not prevent dismissal. Id. (citing Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009); Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003)). The Court then held that the meager factual allegations included in the complaint did not “create any inference supporting the allegation that calls were made using an automatic dialing system,” and were not sufficient to state a facially plausible claim. Id. (citing Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012) (“Factual allegations that are merely consistent with a defendant’s liability fall short of being facially plausible.”)).

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