In Zean v. Fairview Health Services, 2016 WL 740412, at *3 (D.Minn., 2016), Judge Magnuson found that lack of consent was part of a TCPA Plaintiff's pleading obligation, and then found that the Plaintiff's providing his cell phone number constitute express consent to receive telemarketing calls. Elkins found support in the decisions of “one circuit court and many district courts,”… Read More
In Zilveti v. Global Marketing Research Services, Inc., 2016 WL 613010, at *3 (N.D.Cal., 2016), Judge Chesney allowed a TCPA claim to proceed, despite intervention in the action by the United States of America. Second, contrary to GMRS's argument that Zilveti has failed to state a claim, the TCPA covers “noncommercial speech,” see Gomez v. Campbell-Ewald Co., 768 F.3d 871,… Read More
In Yount v. Midland Funding, LLC, 2016 WL 554851, at *7-8 (E.D.Tenn., 2016), Judge Greer granted summary judgment to a TCPA plaintiff who received calls to her cellular telephone by use of an ATDS, even though she was not charged for the calls. There is no dispute of fact that FKSC made the six telephone calls to plaintiff's cellular telephone… 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 Abella v. Mozea, LLC, , 2015 WL 6599747, at *4 (E.D.Pa. 2015), Judge Dalzell allowed a TCPA text-message class action past the pleading stage, based on allegations that Defendant SAC is a student loan consolidation and forgiveness service that offers assistance to consumers hoping to alleviate their student loan debt burden. Compl. at ¶ 10. Defendant Mozeo is an… 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 Luna v. SHAC, LLC dba Sapphire Gentlemen's Club, here, Judge Lloyd granted summary judgment to a TCPA defendant who was accused of violating the TCPA for sending text messages to customers. Shac operates the Sapphire Gentlemen’s Club in Las Vegas, Nevada. Shac engaged CallFire, a third-party mobile marketing company, to provide a web-based platform (here, EXTexting.com) for sending promotional text messages to… Read More
In Rouse v. Delta Air Lines, Inc., 2015 WL 4636726 (D.Minn.,2015), Judge Magnuson held that a TCPA Text-Message Plaintiff survived a Motion to Dismiss on whether the Complaint adequately pleaded use of an ATDS. The facts were as follows: In late 2014, Plaintiff Kevin Rouse received a text message on his personal cell phone from Defendant Delta Air Lines, asking… 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 Sacchi v. Care One, LLC, 2015 WL 3966034 (D.N.J.,2015), Judge Wigenton dismissed a TCPA class action when discovery revealed that Plaintiff's counsel was the primary user of the telephone number at issue. On February 3, 2014, Plaintiff, John Sacchi, filed a putative class-action complaint against Defendant Care One alleging that Care One maintained an illegal telephone solicitation practice in violation… Read More
In Williams v. Bank of America, Nat. Ass'n, 2015 WL 3843251, at *2-4 (D.S.C.,2015), Judge Harwell denied a TCPA Defendant's motion to dismiss. The Court finds Plaintiff has alleged sufficient facts to state a claim under the TCPA. Plaintiff claims Defendant began calling her cellular telephone after January 2013, and upon answering Defendant's calls, Plaintiff heard an automated message telling her… Read More
In Smith v. NCO Financial Systems, Inc., 2015 WL 2185252 (E.D. Cal. 2015), Judge Delaney dismissed an in pro per's TCPA complaint. Defendant moves to dismiss the TCPA claim on three grounds: (1) plaintiff's exhibit attached to the complaint shows that the phone number called (916–929–4665) was different than that alleged in the complaint (916–918–9481) and plaintiff does not allege that the… 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 Shupe v. Bank of America NA, 2015 WL 1120010 (D.Ariz. 2015), Judge Zipps affirmed a Magistrate’s recommendation that a plaintiff’s TCPA claim be dismissed because the calls were to land-lines and not cellular telephones. In addition to the foregoing argument, the Plaintiffs assert once again that the TCPA not only prohibits calls to residential lines using artificial or prerecorded… 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 Telephone Science Corp. v. Trading Advantage, LLC, 2015 WL 672266 (N.D.Ill. 2015), Judge Guzman found that the TCPA was not limited to consumer protection only; it applied to autodialed calls made to a commercial business' cellular telephones, too. Telephone Science Corporation (“TSC”) brings this case under the Telephone Consumer Protection Act (“TCPA”) seeking relief for telemarketing calls defendants made to… Read More
In McKenna v. WhisperText, 2015 WL 428728 (N.D.Cal. 2015), Judge Grewal found that a TCPA plaintiff pleaded himself out of a TCPA claim because there was no allegation of an absence of human intervention. A little over a year ago, Plaintiff Tony McKenna got a text he did not expect from “16502412157.” The text was an invitation to download the… Read More
