In Flores v. Adir International, LLC, 2015 WL 4340020, at *2-5 (C.D.Cal., 2015), Judge Birotte dismissed a TCPA class action with prejudice because he believed Plaintiffs could not plead facts to support their contention that text messages were sent by an ATDS.
Defendant moves to dismiss both of Plaintiff’s claims under the TCPA for failure to allege that Defendant contacted Plaintiff using an ATDS. “The three elements of a TCPA claim are: (1) the defendant called a cellular telephone number; (2) using an automatic telephone dialing system; (3) without the recipient’s prior express consent.” Meyer v. Portfolio Recovery Associates, LLC, 707 F.3d 1036, 1043 (9th Cir.2012). A text message to a cellular telephone constitutes a “call” under the TCPA. Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir.2009). As used in the TCPA, “ ‘automatic telephone dialing system’ means equipment which has the capacity–(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). Under the plain language of the statute, “a system need not actually store, produce, or call randomly or sequentially generated telephone numbers, it need only have the capacity to do it.” Satterfield v. Simon & Schuster, Inc., 569 F.3d at 951. Plaintiff alleges that Defendant used an ATDS to send text messages to him. . . . Such a naked assertion need not be taken as true,” however. Kramer v. Autobytel, Inc., 759 F.Supp.2d 1165, 1171 (N.D.Cal.2010) (standing alone, plaintiff’s allegation that defendant “us[ed] equipment that, upon information and belief, had the capacity to store or produce telephone numbers to be called, using a random or sequential number generator” insufficient to allege defendant used an ATDS). Plaintiff’s “formulaic recitation of the elements” of his TCPA claims “will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. at 555. Without more, Plaintiff’s conclusory allegation that Defendant used an ATDS is little more than speculation, and cannot support a claim for relief under the TCPA. Huricks v. Shopkick, Inc., No. C–14–2464 MMC, 2014 WL 3725344, at *2 (N.D.Cal. July 24, 2014); accord Kazemi v. Payless Shoesource, Inc., 2010 WL 963225, at *2 (N.D.Cal. March 16, 2010). Plaintiff’s allegation that Defendant used an ATDS to contact him is based, in part, on the claim that the text messages he received were “generic.” Plaintiff alleges that “none of the text messages mention Plaintiff directly.” However, the fact that none of the text messages Plaintiff received included his name does not mean that they were “generic” and “impersonal.” To the contrary, Plaintiff affirmatively alleges Defendant’s text messages to him all included the same “Ref # ” to identify Plaintiff if he called Defendant back. (Dkt. No. 30, ¶¶ 7, 9.) Although these text messages do not refer to Plaintiff by name, they refer to Plaintiff indirectly, suggesting that Defendants attempts to contact him were anything but “random.” See Ibey v. Taco Bell Corp., Case No. 12–cv–583–H–WVG, 2012 WL 2401972, *1, 3 (S.D. Cal. June 18, 2012) (allegation that message was sent using ATDS was insufficient where message “did not appear to be random”). Indeed, Plaintiff’s counsel conceded at the hearing on this motion that Defendant knew who Plaintiff was and that Defendant was specifically targeting Plaintiff about a debt when Defendant sent the text messages at issue.. . .To be sure, it is at least possible that Defendant utilized a system that is capable of storing or generating a random or sequential list of telephone numbers and then dialing them – i.e., none of Plaintiff’s allegations affirmatively rule it out. But Plaintiff must do more than point to “a sheer possibility that [ ] defendant has acted unlawfully.” Iqbal, 556 U.S. at 678. Plaintiff must allege facts that, if true, would take his claims “across the line from conceivable to plausible.” Twombly, 556 U.S. at 680. Plaintiff’s own allegations suggest direct targeting that is inconsistent with the sort of random or sequential number generation required for an ATDS. As in the original complaint, Plaintiff’s FAC again alleges that Defendant is a debt collector that sent Plaintiff a number of text messages for the purpose of collecting on a specific debt, all of which included the same reference number. See Daniels v. Comunity Lending, Inc., No. 13CV488–WQH–JMA, 2014 WL 51275, at *5 (S.D.Cal. Jan. 6, 2014), appeal dismissed (Feb. 26, 2014) (dismissing complaint because the defendant’s “alleged calls to Plaintiffs do not appear to have been ‘random,’[citation]; instead, the calls are alleged to be directed specifically toward Plaintiffs.”); Knutson v. ReplyA, Inc., No. 10–CV–1267 BEN WMC, 2011 WL 291076, at *2 (S.D.Cal. Jan. 27, 2011) (dismissing TCPA claim where “[t]here [was] nothing in the complaint that allow[ed] the court to infer the calls were randomly generated or impersonal”). . . The Court agrees that “[p]laintiffs alleging the use of a particular type of equipment under the TCPA are generally required to rely on indirect allegations such as the content of the message, the context in which it was received, and the existence of similar messages, to raise an inference that an automated dialer was utilized. Prior to the initiation of discovery, courts cannot expect more.” Robbins v. Coca–Cola–Co., No. 13–CV–132–IEG NLS, 2013 WL 2252646, at *3 (S.D.Cal. May 22, 2013) (quoting Gragg v. Orange Cab Co., Inc., 2013 WL 195466, at *2 n.3 (W.D.Wash.Jan.17, 2013).) Unlike the authorities Plaintiff relies upon, however, “the content of the message, the context in which it was received, and the existence of similar messages” all weigh against an inference that Defendant used an ATDS. The content of the messages, even if drawn from a template, included a unique reference number that remained consistent in every text message. (Dkt. No. 30, ¶¶ 7, 9.) The context of the messages was Defendant’s desire to collect on a specific debt, not mass marketing. (Id., at ¶¶ 19a, 20.) And the existence of similar messages to the same person, containing the same reference number, and sent for the purpose of debt collection only supports the inference that Defendant expressly targeted Plaintiff. That sort of specificity belies Plaintiff’s claims of randomness and does not, by itself, support a reasonable inference that Defendant used an ATDS. Rule 8 may be “generous,” but “it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 556 U.S. at 678; accord Huricks v. Shopkick, Inc., supra, 2014 WL 3725344, at *2 (dismissing TCPA claim where “plaintiffs’ complaint [was] devoid of any facts that could support a reasonable inference that [defendant] used an ATDS to send the subject text messages”). “Because [Plaintiff’s FAC] is deficient under Rule 8, he is not entitled to discovery, cabined or otherwise.” Iqbal, 556 U.S. at 686.