In McDonald v. Navy Fed. Fin. Grp., LLC, No. 223CV01325ARTEJY, 2023 WL 8084850, at *5–6 (D. Nev. Nov. 21, 2023), Judge Youuchah dismissed a TCPA case at the pleadings stage.
Congress enacted the Telephone Consumer Protection Act (“TCPA”) “to protect the privacy interests of telephone subscribers.” Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009). The TCPA prohibits making calls with an automatic telephone dialing system or an artificial prerecorded voice to any telephone number assigned to a cellular telephone service unless the call is made for emergency purposes or with the prior express consent of the called party. 47 U.S.C. § 227(b)(1)(A). The TCPA defines “automatic telephone dialing system” (“ATDS”) as “equipment which 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.” Id. § 227(a)(1). Plaintiff alleges Defendant (her credit union) called her using an ATDS in an attempt to collect debts she allegedly owed to Defendant. ECF No. 14 at 15 ¶¶ 91-93. Plaintiff says to the extent she ever gave consent to call her, she withdrew that consent telling Defendant to cease its calls. Id. at 16 ¶ 94. As previously explained to Plaintiff (see ECF No. 4), Plaintiff’s allegation renders implausible her contention that she was called randomly or using a sequential number generator as required to state a TCPA claim. Instead, Plaintiff says Defendant repeatedly called her cell phone attempting to collect a debt she owed. These allegations are insufficient to state a claim under the TCPA. See Mehl v. Green, Case No. 2:21-cv-01861-TLN-JDP (PS), 2022 WL 4056269, at *5 (E.D. Cal. Sept. 2, 2022) citing Hufnus v. DoNotPay, Inc., Case No. 20-cv-08701-VC, 2021 WL 2585488, at *1 (N.D. Cal. June 24, 2021) (finding that numbers specifically provided by the consumer did not meet the TCPA’s “random or sequential number generator” to qualify under TCPA). Indeed, several courts hold that when a plaintiff provides a phone number to a defendant the only logical explanation is, as is true in this case, that “a TCPA claim does not lie even if the plaintiff claims that the defendant used an autodialer.” Id. citing Brickman v. Facebook, Inc., Case No. 16-cv-00751-WHO, 2021 WL 4198512, at *2 (N.D. Cal. Sept. 15, 2021); Franco v. Alorica Inc., Case No. 2:20-cv-05035-DOC-(KESx), 2021 WL 3812872, at *3 (C.D. Cal. July 27, 2021) (“[w]hen a defendant randomly makes calls from a curated list, it is not randomly or sequentially generating phone numbers”) (emphasis in original). Plaintiff’s TAC adds no new allegations that change this analysis. *6 The Court finds Plaintiff again fails to state a TCPA claim. The Court recommends Plaintiff’s TPCA claim be dismissed with prejudice.