In Smith v. NCO Financial Systems, Inc.,  2015 WL 2185252 (E.D. Cal. 2015), Judge Delaney dismissed an in pro per’s TCPA complaint.

Defendant moves to dismiss the TCPA claim on three grounds: (1) plaintiff’s exhibit attached to the complaint shows that the phone number called (916–929–4665) was different than that alleged in the complaint (916–918–9481) and plaintiff does not allege that the former number was cellular; (2) plaintiff fails to allege any facts supporting the conclusory allegation that the call was placed using an automatic dialing system; and (3) plaintiff consented to receiving calls on her cell phone by providing her cell phone to her medical provider.1 The second contention appears to be dispositive.  “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. 47 U.S.C. § 227(b)(1). The term ‘automatic telephone dialing system’ means ‘equipment that 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).” Meyer v. Portfolio Recovery Associates. LLC, 707 F.3d 1036, 1043 (9th Cir.2012). In the second amended complaint, plaintiff makes the conclusory allegation that the call at issue “was placed using equipment that had the capacity to store or produce telephone numbers to be called, using a random or sequential number generator and/or a predictive dialer; with the capacity to dial such numbers. Plaintiff alleges no facts supporting this allegation. Moreover, the exhibits attached to the complaint appear to contradict plaintiff’s conclusory allegation. The voicemail message references a specific identification code that appears to be unique to the debt in dispute. The specificity of the message left on plaintiff’s answering machine contradicts any assertion made by plaintiff that this is a case where a series of telephone calls were made to randomly generated telephone numbers with an identical message left for each phone number dialed. In the absence of any facts supporting plaintiff’s conclusory allegations, which are simply a “formulaic recitation” of the elements of a claim for violation of the TCPA, the claim should be dismissed. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiff proffers no facts which would cure this deficiency. The claim should therefore be dismissed without leave to amend.