In Brickman v. Facebook, Inc., No. 16-cv-00751-WHO, 2021 U.S. Dist. LEXIS 175700, at *10-12 (N.D. Cal. Sep. 15, 2021), Judge Orrick dismissed a TCPA case at the pleadings stage.
I recognize that some courts have considered the determination of whether a plaintiff has plausibly shown the use of an ATDS covered by Duguid to be more appropriately resolved on summary judgment than at the pleading stage. But in many of those cases, the plaintiffs alleged that they had never provided defendant with their phone numbers in the first place, making it at least plausible that a prohibited number generator had been used to produce or store the numbers called. See Gross v. GG Homes, Inc., 2021 U.S. Dist. LEXIS 127596, 2021 WL 2863623, at *7 (S.D. Cal. July 8, 2021) (concluding, consistent that the “newly clarified definition of an ATDS is more relevant to a summary judgment motion than at the pleading stage,” but also noting that there was no allegation or evidence that plaintiff had provided her number to defendant); Miles v. Medicredit, Inc., 2021 U.S. Dist. LEXIS 131128, 2021 WL 2949565, at *4 (E.D. Mo. July 14, 2021) (the “Court agrees with Plaintiff that the ‘newly clarified definition of an ATDS is more relevant to a summary judgment motion than at the pleading stage'” in a case where the calls were placed to plaintiff’s number in an effort to collect a debt allegedly owed by an unknown third-party); see also Montanez v. Future Vision Brain Bank, LLC, 2021 U.S. Dist. LEXIS 67091, 2021 WL 1697928, at *2 (D. Colo. Apr. 29, 2021) (deferring issue to summary judgment, where defendant contended plaintiff had voluntarily provided her number to defendant, yet none of the messages received were “addressed specifically to Plaintiff.”); Jance v. Homerun Offer LLC, 2021 U.S. Dist. LEXIS 143145, 2021 WL 3270318, at *4 (D. Ariz. July 30, 2021) (allowing TCPA case to proceed past motion to dismiss stage, where “Plaintiff alleges he had no business relationship with Defendants, did not give Defendants his contact information, and did not consent to be contacted by Defendants”). I agree with Brickman that each case has to be addressed on its own alleged facts. Here, considering the facts Brickman alleges in his proposed SAC that I take as true, Brickman fails to plausibly allege the use of a prohibited ATDS following Duguid. Therefore, his motion for leave to file the proposed SAC is DENIED as futile.