In Scott v. Merchants Ass’n Collection Div., Inc., 2012 WL 4896175 (S.D.Fla. 2012), Judge O’Sullivan found that the Plaintiff’s pleading burden in a TCPA cell phone case did require the Plaintiff to plead an absence of consent because consent is an affirmative defense borne by the Defendant.
As explained by this Court: “to establish a TCPA violation, Plaintiff must demonstrate that the Defendant sent a text message to a number assigned to a cellular telephone service using an automatic dialing system …. Whether these text messages were sent to Plaintiff with his prior express consent is an affirmative defense. Accordingly, the burden of establishing that Plaintiff consented to receive the text messages falls upon Defendant.” Buslepp v. B & B Entertainment, LLC, No. 12–60089–CIV, 2012 WL 4761509, at *4 (S.D.Fla. Oct. 5, 2012) (internal citation omitted) (emphasis added). An “affirmative defense … may be considered in resolving a motion to dismiss when the complaint affirmatively and clearly shows the conclusive applicability of the defense to bar the action.” Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1274–75 (11th Cir.2004) (citations and internal quotation marks omitted). As the defendant notes, the issue of consent is not addressed in the Complaint filed in the instant action. For this reason, the Court cannot resolve the issue of consent on a Rule 12(b)(6) motion to dismiss. The undersigned has reviewed the allegations in the Complaint and concludes that they are sufficient to raise a right to relief above the speculative level and to state a plausible claim for relief against the defendant for violating the TCPA. Accordingly, the defendant’s motion to dismiss for failure to state a claim upon which relief may be granted is DENIED.