The U.S. District Court for the Eastern District of Michigan recently dismissed a TCPA complaint upon finding the plaintiff’s factual allegations insufficient to satisfy the pleading standards imposed by both Rule 8(a) and the Supreme Court’s opinions in Twombly and Iqbal. The Court’s order provides useful guidance concerning the oft-litigated issue of whether a complaint contains sufficient facts to plausibly allege a defendant’s use of an ATDS.
In Aikens, Plaintiff alleged that Defendant used an ATDS to place at least 101 calls to her cellular phone over a ten-week period. Defendant moved to dismiss for failure to state a claim, arguing that Plaintiff did not “identify the times of day she received these calls, the content of the calls or anything else to indicate that these calls originated from an [ATDS].” Plaintiff, in response, contended that she alleged the calls were “intended for an individual named Sam,” that Defendant “continued to call [her] cell phone even after being advised that she was not the intended recipient,” and that she received “an average of over 1.4 calls per day” during the time period at issue. Plaintiff added that it was essentially “impossible” for her—or indeed any TCPA plaintiff—to obtain specifics as to a defendant’s telephone dialing system before discovery had commenced.
The Court (Magistrate Judge Patricia T. Morris) disagreed: it found Plaintiff’s conclusory allegation that Defendant used an ATDS could not, by itself, render Plaintiff’s claim plausible because it did not explain “why or how Plaintiff knows that an ATDS was used.” The Court rejected as inapposite several district court decisions relied upon by Plaintiff, in which the complaints, by contrast, were found to contain plausible allegations concerning the defendant’s use of an ATDS. See, e.g., Cunningham v. Kondaur Capital, No. 3:14-1574, 2014 WL 8335868, at *6 (M.D. Tenn. Nov. 19, 2014) (plaintiff alleged the text messages at issue were “repeated within a short span of time and consisted of the same content”); Buslepp v. B & B Entm’t, LLC, No. 12-60089-CIV, 2012 WL 1571410, at *1 (S.D. Fla. May 3, 2012) (plaintiff alleged at least some detail regarding the content of the calls to plausibly suggest the use of an ATDS); De Los Santos v. Millward Brown, Inc., No. 13-80670-CV, 2014 WL 2938605, at *3 (S.D. Fla. June 30, 2014) (same).
Magistrate Judge Morris then recommended to the District Judge that Defendant’s motion to dismiss be granted and that Plaintiff’s complaint be dismissed without prejudice because Plaintiff had not stated a plausible claim for relief under the TCPA. As the Court reasoned: “[T]he Court may not accept an assertion that an ATDS was used simply because Plaintiff states as much…. Plaintiff has not provided any details about the content of the calls she received beyond noting that the caller attempted to reach someone named ‘Sam,’ and that she asserted to the caller (whether pre-recorded or live, Plaintiff does not say) that she was not the ‘Sam’ they were looking for.” The Court continued:
[Plaintiff] has provided no factual allegations regarding the nature and character of the calls. While plaintiffs cannot be expected to provide specific details about the type of dialing systems used to deliver the calls …, it is entirely reasonable to demand that plaintiffs provide sufficient information about the timing and content of the calls they receive to give rise to the reasonable belief that an ATDS was used. Plaintiff has not provided sufficient contextual details to determine whether she spoke to a human or merely heard a recording upon picking up the phone. If she spoke to a human, she has not indicated whether she heard a human voice immediately upon picking up her phone, or whether there was a significant period of “dead air,” which is generally indicative of the use of an automatic dialer. Plaintiff’s allegations permit the Court to infer that she received a great number of calls from Defendant’s number, but no allegations in the complaint permit an inference that Defendants used an ATDS to accomplish these calls. To surmount this threshold, Plaintiff could plead those facts which are likely within her knowledge, but which she has not included in her complaint: the content of Defendant’s calls, whether she spoke to a human, whether there was dead air prior to a human picking up the line, or any other facts which may tend to make the use of an ATDS more likely.
A month after this opinion was issued, the District Judge wholly adopted the Magistrate’s recommendation. See Aikens v. Synchrony Financial, No. 15-cv-10058, 2015 U.S. Dist. LEXIS 115023 (E.D. Mich. Aug. 31, 2015) (noting neither party had objected). Aikens thus serves as a helpful illustration of the baseline pleading requirements for claims brought under the TCPA, particularly with respect to allegations concerning the use of an ATDS.
