The Sixth Circuit recently affirmed the dismissal of a serial pro se litigant’s TCPA claims for failure to allege enough factual support. The case provides a useful primer on what a plaintiff must allege to state a claim under the TCPA’s autodialer or artificial/prerecorded voice provisions.
In Fluker v. Ally Fin., Inc., 2025 WL 1827747, at *1 (6th Cir. July 2, 2025), the plaintiff alleged violations of the TCPA arising from hundreds of debt collection calls that had allegedly been placed without his prior consent. The trial court held that Fluker had “fail[ed] to plausibly allege that Ally [Financial] made the phone calls using either (1) an automatic telephone dialing system, or (2) an artificial or prerecorded voice.” Id. at *2 (citing Fluker v. Ally Fin. Inc., 2023 WL 8881154, at *2 (E.D. Mich. Dec. 21, 2023)). The Sixth Circuit reviewed that dismissal de novo, finding that neither claim had been properly pleaded.
First, the Court held that Fluker had “failed to state a plausible entitlement to relief” based on the alleged use of “an automatic telephone dialing system.” Id. at *2-3. To begin, Fluker’s claim was not sufficiently plausible. Id. at *2-3 (explaining that, while pro se litigants “enjoy the benefit of a liberal construction of their pleadings,” such leniency “has its limits”). Specifically, the Court found that “Fluker’s statement that ‘Ally called [his] cell phone using an automatic telephone dialing system’ was a mere recitation of the elements of his claim, unsupported by further facts.” Id. at *3 (“And so the complaint doesn’t allow a reasonable inference that an automatic telephone dialing system was used.”).
Although Fluker did not need to plead the technical specifications of the system that had been used to call him, he did need to at least indicate what about the calls led him to infer that Ally Financial was using an automatic telephone dialing system. And the one fact Fluker had alleged — that Ally placed a high volume of calls, more than 800 in total over the span of 20 months — did not make it probable that Ally had used an ATDS. Rather, it was merely consistent with this fact. Id. (“A complaint that only pleads facts that are ‘merely consistent with a defendant’s liability . . . stops short of the line between possibility and plausibility. And none of the remaining factual allegations bridge this gulf between the possible and the plausible.”).
Second, the Court held that Fluker’s prerecorded voice claim failed for the same reason. See id. at *4 (“Fluker has not alleged sufficient facts to allow a reasonable inference in his favor.”). Noting once again that his only non-conclusory alleged fact was the over 800 placed calls, the Court again found this allegation was “merely consistent with the defendant’s liability rather than probative of it.” Id.; see also id. (“[T]his allegation might get Fluker close. But while close might be enough in horseshoes and hand grenades—the same doesn’t go for federal pleading standards. Fluker still needs more supporting facts to make his version of events more than a remote possibility.”).
Moreover, the Court clarified that these factual allegations need not be technical, but rather, could be “simple observations about the nature of the call.” Id. The Court rejected the suggestion that this requirement might heighten a plaintiff’s burden, explaining that “no one needs the benefit of discovery to explain what in a call led them to infer that they were listening to an artificial or prerecorded voice.” Id.
In TCPA cases no less than others, Plaintiffs must allege facts that make their claims not just possible but plausible. TCPA defendants would do well to assess whether complaints actually allege facts that would establish the essential elements of their claims or — as in the Fluker case — simply ask the court to infer those facts from things like the volume or frequency of calls.
