In Keifer v. Hosopo Corp., No.: 3:18-cv-1353-CAB-(KSC), 2018 WL 5295011 (S.D. Cal. Oct. 25, 2018), the Court found that a TCPA Plaintiff adequately pleaded an ATDS after Marks.
Defendant’s contention that Plaintiff has failed to establish that it, or any agent, made any of the alleged 14 calls is unavailing. [Doc. No. 14-1 at 17-21.] For purposes of the motion to dismiss, the Court accepts as true the factual allegations of the FAC that Defendant placed multiple calls to Plaintiff trying to solicit his business and that it owned the telephone number from which Plaintiff was contacted. [Doc. No. 9 at ¶¶ 8 -11, 15, 18.] Furthermore, since the FAC alleges that the purpose of the calls was to sell HOSOPO’s services, the Court also finds it reasonable at this stage of the proceedings to infer that if the calls were not made by Defendant, they were made by entities utilized by Defendant, acting as its agents, to place the calls on its behalf. See, generally, Gomez, 768 F.3d at 877-79 (discussing the circumstances when liability can attach under the TCPA). Thus, Plaintiff has met the first element of the TCPA claim and adequately allegedly that Defendant called his cellular number. Turning to the question of whether an ATDS was used, Defendant dedicates five pages of briefing to discussing the case law and history surrounding the definition of an ATDS. Defendant argues that in light of the case law, Plaintiff’s claims should be dismissed because he does not allege that Defendant used equipment that had the ability to generate numbers randomly or sequentially. See Doc. No. 14-1 at 8-14. But, Defendant’s position that the dialing system at issue must create or develop numbers on its own is not supported by a recent Ninth Circuit decision published after briefing was submitted. In Marks v. Crunch of San Diego, __ F.3d__, 2018 WL 4495553 (9th Cir. Sept. 20, 2018), the Court of Appeals sought to clear up the ambiguity surrounding what constitutes an ATDS. Before considering the definition of an ATDS under the TCPA, the court clarified that “[b]ecause the D.C. Circuit vacated the FCC’s interpretation of what sort of device qualified as an ATDS,4 only the statutory definition of ATDS as set forth by Congress in 1991 remains.” Marks, __ F.3d__, 2018 WL 4495553, at * at 7. The Ninth Circuit read “§ 227(a)(1) to provide that the term automatic dialing system means equipment which has the capacity – (1) to store numbers to be called or (2) to produce numbers to be called, using a random or sequential number generator – and to dial such numbers.” Id. at *9.5 Thus, under this authority an ATDS need not create or develop the numbers dialed on its own. While Plaintiff does not specifically set forth allegations that are sufficient on their own to support his claims, the Court, accepts as true the factual allegations of the FAC, applies the definition of an ATDS set forth in Marks, and by drawing on the Court’s judicial experience and common sense, Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009), finds it is reasonable to infer that the equipment HOSOPO used was an ATDS and that on one or more occasions an artificial or pre-recorded voice was used. For the foregoing reasons, the Court has concluded that Plaintiff has either adequately alleged the elements necessary to state a TCPA claim, or stated enough facts from which a plausible inference can be drawn the Defendant was responsible for the calls being made to Plaintiff. See Abante Rooter & Plumbing, Inc. v Pivotal Payments, Inc., Case No. 16-cv-05486-JCS, 2017 WL 733123, at * 8 (N.D. Cal. Feb. 24, 2017) (at the pleading stage a TCPA plaintiff need only allege enough facts from which a plausible inference can be drawn that defendant was responsible for the calls being made to plaintiff).