District Court Says TCPA Plaintiffs Are Not Required To Plead Their Phone Numbers; Allows Plaintiff’s Negligence Claim Premised On Existence of Statutory Duty Of Care Under The TCPA To Move Forward

The District of South Carolina recently rejected the argument that TCPA claims must be dismissed if a plaintiff does not specify the telephone number that was allegedly called. See Williams v. Bank of America, No. 14-4809-RBH (D.S.C. June 19, 2015).

Bank of America moved to dismiss on the grounds that the complaint parroted the elements of the TCPA rather than alleging facts that would establish a TCPA violation. Specifically, Bank of America argued that the plaintiff failed to (1) specify the telephone number it allegedly called, (2) plead facts showing that she received the calls from an ATDS, and (3) plead facts showing that it placed the alleged calls without her consent. With respect to the first issue, Bank of America relied on the Western District of Michigan’s decision in Strand v. Corinthian Colleges, Inc., No. 13-1235 (W.D. Mich. Apr. 17, 2014), which as we discussed last year dismissed the claim of a plaintiff who refused to plead her telephone number. The Strand court agreed with the defendant’s argument that “if a plaintiff is not required to provide her cellular telephone number,” defendants could not “reasonably determine if a violation occurred” and plaintiffs could “extort settlements from defendants by imposing asymmetric discovery costs on them, contrary to the policy aims of Iqbal and Twombly.”

The Williams court disagreed. It noted that the Fourth Circuit has yet to address the question of whether Rule 8 requires plaintiffs to include their phone number in their complaints, and then rejected Strand and held that a mere “allegation that [d]efendant called her cellular telephone provides adequate notice to [d]efendant of its conduct alleged to have violated the TCPA. Defendant may obtain information regarding the telephone number it allegedly called through discovery; the phone number is not necessary to put [d]efendant on notice of its alleged conduct.”

Also noteworthy is that the Williams court permitted plaintiff to move forward with a seemingly redundant state law claim for failure to train and supervise that is “premise[d] [on the argument] that [d]efendant owed her a statutory duty of care under the TCPA.” The court explained that plaintiff’s “claims indicate that the TCPA is designed to prevent automated telephone calls made without the recipient’s consent and that she belongs to the broad class of citizens the federal statute is designed to protect.” Accepting the truth of plaintiff’s allegations for purposes of the motion, the court found that “[p]laintiff’s complaint includes plausible factual statements that reasonably support the existence of a statutory duty of care owed by [de]fendant to [p]laintiff.”

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