In Izsak v. Draftkings, Inc., 2016 WL 3227299, at *3-5 (N.D.Ill., 2016), Judge Wood found that a TCPA Plaintiff pleaded enough to get past the pleadings stage. This Court agrees with the view that where a fact—here, use of an ATDS—is itself an element of the claim, “it is not sufficient to recite that fact verbatim without other supporting details.”… Read More
In Waterbury v. A1 Solar Power Inc., 2016 WL 3166910, at *3 (S.D.Cal., 2016), Judge Anelo found that a TCPA plaintiff had not adequately pleaded the use of an ATDS. Defendants contend Plaintiff Bell has not stated a claim under the TCPA because she has not adequately alleged that Defendants used an ATDS. Plaintiff Bell alleges Defendants violated a provision… Read More
In Lundstedt v. Deutsche Bank National Trust Company, 2016 WL 3101999, at *5 (D.Conn., 2016), Judge Meyer allowed a TCPA case past the pleading stage where the Plaintiff could allege facts supporting the use of an ATDS. Plaintiff did state at oral argument, however, that “you could tell it was a computer because you would be waiting and waiting and… Read More
In Oleos v. Bank of America, 2016 WL 3092194, at *2 (S.D.Cal., 2016), the District Court found that a TCPA Plaintiff pleaded enough. Courts facing a motion to dismiss on the grounds that the allegations of use of an ATDS are insufficient have taken two approaches. Maier, at *3. Under the first approach, courts allow a plaintiff to make minimal allegations… Read More
In Brown v. Collections Bureau of America, Ltd., 2016 WL 1734013, at *1-2 (N.D.Cal., 2016), Judge Seaborg allowed a TCPA class action past the pleading stage based on, well, almost nothing.In this putative class action, named plaintiff Malik Brown complains that defendant Collections Bureau of America, Ltd. has violated the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. (“TCPA”).… Read More
In Stavrinides v. Pacific Gas and Electric Company, 2016 WL 1598744, at *2 (N.D.Cal., 2016), Judge Alsup held: As an initial matter, plaintiff has not alleged that he was charged for the call, which he must allege to state a claim under the TCPA. Moreover, the complaint does not, in anything other than conclusory fashion, allege that PG&E used an… Read More
In Reo v. Caribbean Cruise Line, Inc., 2016 WL 1109042, at *4 (N.D.Ohio, 2016), Judge Nugent held that a TCPA Plaintiff must plead some threshold facts to demonstrate that an ATDS was used. Review of TCPA cases confirms that district courts are split as to the sufficiency of a plaintiff's pleadings on the ATDS issue. See Aikens, supra; Padilla v.… Read More
In Hensarling v. Wells Fargo Bank, N.A., 2016 WL 775950, at *3-4 (E.D.Cal., 2016), Judge Mueller held that a TCPA Plaintiff must plead more that the definition of an ATDS -- it must plead that it was used somehow, as in the existence of pauses or clicks. Here, plaintiffs' TCPA claim can advance only if plaintiffs have alleged sufficient facts… Read More
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… Read More
In Ananthapadmanabhan v. BSI Financial Services, Inc., 2015 WL 8780579, at *4 (N.D.Ill. 2015), Judge Leinenweber held that a TCPA Plaintiff must plead more than formulaic recitation of the TCPA in order to prove the “use” of an ATDS. The Court agrees that Plaintiffs' Complaint is insufficient. Use of an ATDS and the pre-recorded nature of the messages are not… Read More
In Curry v. Synchrony Bank, N.A., 2015 WL 7015311, at *2-3 (S.D.Miss.,2015), Judge Guirola found that a TCPA plaintiff did not plead facts to suggest that an ATDS was used under the TCPA. The Court has found no binding precedent within the Fifth Circuit with respect to the types of allegations required to raise a right to relief above the speculative… Read More
In Williams v. T-Mobile USA, Inc., 2015 WL 5962270, at *2 (N.D.Cal., 2015), Judge White held that Plaintiff must plead more than conclusory allegations regarding use of an ATDS. Williams argues that her allegations that T-Mobile made a “barrage” of calls and that the “frequency and pattern of the calls” provide the necessary factual support to conclude that the calls were made… Read More
In Ellis v. Phillips and Cohen Associates, Ltd., 2015 WL 4396375, at *4 (N.D.Cal., 2015), Judge Davila found Plaintiff's FDCPA and TCPA claims adequately pleaded, but dismissed part of the FDCPA claims based on the statute of limitations. Judge Davila found that the Defendant's Motion to Dismiss had not sufficiently proved that the Plaintiff's debt was a commercial debt. Defendant has… Read More
In Flores v. Adir International, LLC, 2015 WL 4340020, at *2-5 (C.D.Cal., 2015), Judge Birotte dismissed a TCPA class action with prejudice because he believed Plaintiffs could not plead facts to support their contention that text messages were sent by an ATDS. Defendant moves to dismiss both of Plaintiff's claims under the TCPA for failure to allege that Defendant contacted Plaintiff… Read More
In Mogadam v. Fast Eviction Service, 2015 WL 1534450 (C.D. Cal. 2015), Judge Selna found use of an ATDS and a class action under the TCPA adequately pleaded. No single fact in particular must necessarily be present or absent to meet the sufficiency requirement for pleading the use of an ATDS in a TCPA claim; courts have considered the nature… Read More
In Harnish v. Frankly Co., 2015 WL 1064442 (N.D.Cal. 2015), Judge Davila found that a text-message class action under the TCPA could proceed past the pleading stage. Plaintiff alleged that on May 15, 2014, he received an unsolicited text message from Defendan, where the “from” field of the text message was identified as short code “27367,” and the message read:… Read More
In Meyer v. Bebe Stores, Inc., 2015 WL 431148 (N.D.Cal. 2015), Judge Rogers found that a TCPA plaintiff stated a claim for a class-wide TCPA violation. Plaintiff is a California resident. (FAC ¶ 6.) FN1 Defendant, a California corporation, operates retail clothing stores throughout the United States. (Id.¶¶ 7–8, 15.) On or about December 10, 2013, plaintiff visited one of… Read More
In Nunes v. Twitter, Inc., 2014 WL 6708465 (N.D.Cal. 2014), Judge Chhabria, found that Plaintiff adequately had pleaded use of an ATDS and an absence of consent under Soppett. At least two district courts have held that the FCC, in the above-referenced orders, unlawfully expanded the statute's definition of an automatic telephone dialing system. See Marks v. Crunch San Diego,… Read More
In McKenna v. WhisperText, 2014 WL 4905629 (N.D.Cal. 2014), Judge Grewal required a TCPA plaintiff to plead more as to whether an ATDS was used, and refused to stay the case based on the Primary Jurisdiction Doctrine. Plaintiff Tony McKenna filed a class action complaint pursuant to the federal Telephone Consumer Protection Act, 47 U.S.C. 227(b)(1)(A)(iii) (TCPA). McKenna brought suit against Defendants… Read More
In Strand v. Corinthian Colleges, Inc., 2014 WL 1515494 (W.D.Mich. 2014), Judge Bell found that a TCPA Plaintiff must plead and identify the telephone number called in order to state a claim under the TCPA. Plaintiff cites one case for the proposition that Rule 8 and the cases governing its application do not require her to plead the cellular telephone… Read More
