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.

The plaintiff had alleged that the defendant “placed repeated and harassing telephone calls to [her] cell phone” using “an automatic telephone dialing system or pre-recorded message” to collect a debt. Id at *1. She further alleged that the calls either “began with a noticeable pause or delay” or were “immediately disconnected upon being answered.” Id. She added that, despite her instructions to the defendant to stop calling her, the defendant continued to make calls that were “upsetting, harassing, and disruptive.” Id.

The defendant moved to dismiss, arguing that the plaintiff’s allegations were “nothing more than a formulaic recitation of a cause of action.” Id. at *5 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The court agreed, finding that the complaint was “almost entirely devoid of specific factual allegations.”  Hollis, 2019 WL 1091336 at *5. The court also noted that, although the plaintiff was aware of the defendant’s arguments, she had failed to address them either in her opposition or by amending her complaint. Id. Accordingly, the court found the plaintiff waived her TCPA claim and dismissed it without prejudice. Id. at *5-6.

Michael P. Daly

About the Author: Michael P. Daly

Mike Daly has spent two decades defending, counseling and championing clients that interact with consumers. His practice focuses on defending class actions, handling critical motions and appeals, and maximizing the defensibility of marketing and enforceability of contracts. Clients large and small have trusted him to protect their businesses, budgets and brands in complex cases across the country.

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