Recently, a federal judge in the United States District Court for the Western District of Washington granted in part a motion to dismiss a TCPA claim in a putative class action. The Court found that although the plaintiff plausibly alleged that he received multiple calls using a prerecorded voice, he did not sufficiently allege facts to support his request for either treble damages or injunctive relief. Blair v. Assurance IQ LLC, No. 2:23-00016-KKE, 2023 WL 6622415 (W.D. Wash. Oct. 11, 2023).
The plaintiff claimed that he received 12 unsolicited calls, one of which he answered, and three of which resulted in voicemails. He alleged that the latter four calls used a prerecorded voice “because of the tone, cadence, and timing of the speaker, which sounded unnaturally perfect,” and because all of the voicemails were “identical.” In its motion to dismiss, the defendant argued that the Court could not reasonably infer that the voice the plaintiff allegedly heard was either prerecorded or live because the plaintiff failed to specify “what about the tone, cadence, and timing” indicated that the call was prerecorded. The Court rejected this argument, however, finding that the allegation of an “unnaturally perfect” voice was enough at the pleadings stage to infer that it was artificial or prerecorded. The Court also held that although the plaintiff “could have expounded more” on how the voicemails were identical (e.g., the tone and cadence of the voice), the fact that the voicemails had “suspicious timing” (they were left at the exact same time on three separate days) and contained “generic content” (identical sales pitches) was enough to infer the use of an artificial or prerecorded voice.
Nevertheless, the Court dismissed the plaintiff’s claims for treble damages and injunctive relief. The plaintiff had requested treble damages only “to the extent [defendant’s] misconduct is determined to be willful and knowing,” but, critically, he never alleged that the defendant’s conduct was actually “willful” or “knowing.” The Court found this insufficient.
As for injunctive relief, the plaintiff attempted to support his request for this remedy by arguing that it merely requires a sufficiently alleged statutory violation. The Court disagreed, citing Supreme Court precedent that a plaintiff must demonstrate Article III standing for each claim and each form of relief sought—and holding that for an injunction, a plaintiff must allege either (1) “continuing, present adverse effects due to … exposure to … past illegal conduct” or (2) “a sufficient likelihood that [the plaintiff] will again be wronged in a similar way.” The Court determined that the plaintiff could not satisfy either standard. When the plaintiff had filed his amended complaint, three months had already passed since the last alleged call. The plaintiff also had framed his injury in the past tense; he did not even mention the possibility of future calls, much less allege continuing, present adverse effects from past calls. As such, the Court found that he lacked standing to seek injunctive relief individually or on behalf of a class.1
Blair serves as a helpful reminder that defendants should not only consider pleadings challenges in cases where a plaintiff fails to allege facts to support each element of a substantive claim, but also assess whether a plaintiff’s claimed remedies—in this case both treble damages and injunctive relief—may also be rejected on a motion to dismiss under Rule 12(b)(6).
Footnotes
[1] The Court gave the plaintiff leave to amend to allege facts that might support treble damages and injunctive relief, if he could do so. Separately, the Court rejected the defendant’s request to stay discovery or, in the alternative, to bifurcate individual and class discovery.
