District Court (Pa.) Denies denied a Motion to Dismiss Brought on the basis that the TCPA Plaintiff had not Pleaded that She Actually Answered the Autodialed Calls to her Cellular Telephone

In Forrest v. Genpact Services, LLC, — F.Supp.2d —-, 2013 WL 4516479 (M.D.Pa. 2013), Judge Nealon denied a Motion to Dismiss that was brought on the basis that the TCPA plaintiff had not alleged that she actually answered the autodialed calls to her cellular telephone.

Defendant argues that Plaintiff’s TCPA claims must fail because she fails to allege that she actually answered the calls, which is required under 47 U.S.C. § 227(b)(1)(A)(iii). A claim under said statute has three elements: (1) “to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party)”; (2) “using any automatic telephone dialing system or an artificial or prerecorded voice”; and (3) “to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call.” 47 U.S.C. § 227(b)(1)(A)(iii). Plaintiff alleges that “Defendant called FN2 Plaintiff’s cell phone number” “for which Plaintiff incurs a charge for incoming calls” “using either an automatic telephone dialing system … or an artificial or prerecorded voice.” (Doc. 1, ¶¶ 10, 14–15) (emphasis added). Accordingly, Plaintiff has set forth a cause of action under the TCPA. Judicial economy requires the Court to determine legal issues as they are ripe. Following discovery, a factual determination can be made as to whether the calls to Plaintiff’s cell phone were answered or went to voicemail and, at that time, a decision as to whether section 227(b)(1)(A)(iii) distinguishes between answered and unanswered calls to cellular phones will be more appropriate. FN3 Because Plaintiff has set forth a cause of action under the TCPA in the complaint, Defendant’s motion will be denied.  [FN2. At this summary stage the Court is reading the pleadings in the light most favorable to the nonmovant, accordingly “called” in paragraph 14 of the complaint will be construed to mean to have made a call. Plaintiff refers to the 225 calls as “calls made to Plaintiff’s cell phone.” (Doc. 1, ¶ 15) (emphasis added).  FN3. Notably, the Ninth Circuit Court of Appeals in defining the phrase “to make any call” under 47 U.S.C. § 227(b)(1)(A), determined this includes “to communicate with or try to get into communication with a per-son by a telephone.” Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir.2009).]  Lastly, Defendant moves for judgment on the pleadings regarding Plaintiff’s claim under the FDCPA. (Doc. 7, p. 9). Specifically, Defendant argues that Count 4 is a conclusory allegation which recites the statutory language verbatim. In response, Plaintiff argues that the volume of calls alleged, 225 calls in a 54–day time-period, is sufficient to allege a violation of 15 U.S.C. § 1692d(5) and that courts have found that the intent to annoy or harass may be inferred by the number of calls. (Doc. 10, pp. 14–16). In its response brief, Defendant argues and cites case law holding that a high number of calls by itself, when the debtor fails to respond or answer, does not constitute a violation of the FDCPA as a matter of law. However, it cannot be inferred from the pleadings that Plaintiff never answered or responded to any of the alleged 225 calls. Reading the complaint in its entirety and making all reasonable inferences in the light most favorable to the nonmovant, including the allegation that Defend-ant called Plaintiff 225 times in a 54–day time-period, it is determined that the complaint adequately pleads a cause of action under the FDCPA. A summary dismissal on the pleadings would be inappropriate based on the facts alleged.