In Schlotfeldt v. Wells Fargo Home Mortgage, Inc., 2016 WL 406341, at *5 (N.D.Ill., 2016), Judge Gettlemen dismissed a TCPA case because Plaintiff did not plead adequate “use” of an ATDS.
As evidenced from the cases cited by each party, courts in this district are split concerning what is required to state a claim under the TCPA. See Martin v. Direct Wines, Inc., No. 15-C-757, 2015 WL 4148704, at *2 (N.D. Ill. July 9, 2015) (dismissing the plaintiff’s TCPA claim where all he alleged was that the defendant used a “Five9 or similar dialer technology”); compare with Lozano v. Twentieth Century Fox Film Corp., 702 F. Supp. 2d 999, 1010-11 (N.D. Ill. 2010) (holding that the plaintiff sufficiently stated a claim for violation of the TCPA by alleging that the defendant used an ATDS). Notwithstanding this disagreement, as Dusty’s TCPA claim currently stands, the allegations do not plausibly suggest, above the speculative level, that U.S. Bank used an ATDS. See Twombly, 550 U.S. at 555. While it is indeed possible, as Dusty contends, “[g]iven the technological advances of our era,” that U.S. Bank used an ATDS to place the calls at issue, Dusty’s allegations do not make it plausible. Contrary to Dusty’s arguments, it might be possible for him to provide additional details at this time to support his conclusory allegation regarding U.S. Bank’s use of an ATDS. For example, Dusty could have described what happened when he attempted to answer one of the calls, such as a distinctive click and pause or lack of human response. Consequently, U.S. Bank’s motion to dismiss Count III of Dusty’s complaint is granted.