In Ellis v. Phillips and Cohen Associates, Ltd., 2015 WL 4396375, at *4 (N.D.Cal., 2015), Judge Davila found Plaintiff’s FDCPA and TCPA claims adequately pleaded, but dismissed part of the FDCPA claims based on the statute of limitations. Judge Davila found that the Defendant’s Motion to Dismiss had not sufficiently proved that the Plaintiff’s debt was a commercial debt.
Defendant has failed to prove—at least at this stage—that the subject of this lawsuit is a commercial debt rather than one for personal, family, or household purposes. Defendant first argues that “the calls at issue were made to, and received by, Lifeblossoms, Inc., a California corporation, and each call related to a commercial—business to business—account,” and cites to an account record from CitiBank and to voicemail transcripts. These documents are not properly considered in the manner presented, however. Despite Defendant’s representation to the contrary, it is not clear that the allegations in the FAC are based on the same account referenced in the Citibank record. The identity of the subject account is apparently in dispute and will require further factual development before the issue can be finally decided. It is therefore inappropriate to consider the record as an incorporated supplement to the FAC. See United States ex rel. Lee v. Corinthian Colleges, 655 F.3d 984, 999 (9th Cir.2011) (“[W]e may also consider unattached evidence on which the complaint ‘necessarily relies’ if: (1) the complaint refers to the document; (2) the document is central to the plaintiff’s claim; and (3) no party questions the authenticity of the document.”). And, in any event, the record reveals nothing about how any funds were used for the purposes of debt classification. Davis, 968 F.Supp.2d at 1077. The voicemail transcripts are similarly insufficient. While the calls that resulted in these records are referenced in the FAC, their content does not prove the alleged collection activity was related to a commercial debt. If anything, the transcripts show that “Lifeblossoms and Team Synergy,” rather than Plaintiff, were referenced in the recorded voicemail message. They also notably show that Defendant’s representatives did not ask to speak with someone from Lifeblossoms or mention the collection of a commercial debt; they requested that Plaintiff return their calls. Lifeblossoms was never mentioned in the messages left for Plaintiff. In short, simply identifying the recipient of a debt collection call does not prove anything about the nature of the debt at issue.
Judge Davila found the TCPA adequately pleaded.
Plaintiff alleges in the FAC that “Defendant used an automatic telephone dialing system (ATDS) to place the calls” it made to her. See FAC, at ¶ 19. Defendant argues this allegation is conclusory. However, when coupled with the next allegation—that Defendant operates an ATDS registered with the Texas Public Utility Commission under permit number 070108—it is plausible that Defendant may have used that ATDS to place calls to Plaintiff.3 Whether or not an ATDS was, in fact, used to place the calls to Plaintiff, and whether or not that equipment functions like the type of equipment described in § 227(a)(1), are questions better suited to investigation through discovery and disposition on summary judgment. Plaintiff has alleged enough to prevent a dismissal for failure to state a claim. Defendant also argues, based on the CitiBank account record previously discussed, that Plaintiff provided her cell phone number and thereby consented to Defendant’s calls. See Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 955 (9th Cir.2009) (observing the TCPA’s exemption for calls made with prior express consent). But as already explained, the CitiBank record cannot be considered as part of the FAC. Nor does it, on its own, prove that Plaintiff voluntarily provided her cell phone number to CitiBank or consented to calls on that number. Id. (defining “express consent” under the TCPA as “consent that is clearly and unmistakably stated.”). All it shows is that the number was in CitiBank’s system, but not why it was there.