Pleading

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 Gesten v. Stewart Law Group, LLC, --- F.Supp.3d ----, 2014 WL 7243330 (S.D.Fla. 2014), Judge Cohn denied a TCPA defendant’s Motion to Dismiss the Plaintiff’s complaint, rejecting the argument that the Plaintiff must plead that she was charged for the call. Defendant first argues that Plaintiff lacks standing to sue under the TCPA because Plaintiff has not alleged that… Read More

In Morse v. Allied Interstate, LLC, --- F.Supp.3d ----, 2014 WL 7004036 (M.D.Pa. 2014),  Judge Nealon granted Plaintiffs' Motion for Partial Summary Judgment on a TCPA case, finding that the defendant had used an ATDS. Here, the parties agree there was no human intervention at the time the calls were placed. The calls were made without a human contemporaneously dialing the number… Read More

In Ott v. Mortgage Investors Corp. of Ohio, Inc., 2014 WL 6851964 (D.Or. 2014), Judges Steward found that Plaintiffs had adequately pleaded a TCPA class action and allowed it to proceed beyond the pleadings stage.  The facts were as follows: Plaintiffs, Kelly Ott, Nancy Luebben, and Benjamin Gesler, filed this class action against defendants for violations of the Telephone Consumer Protection… 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 Bank v. Independence Energy Group LLC, 2014 WL 4954618 (E.D.N.Y. 2014), Judge  Gleeson held that a Plaintiff's holding out his residential telephone line as a "business line" might disqualify it from protection under the TCPA.  Defendants had placed a call to Bank's residential telephone line using an artificial or prerecorded voice that advertised electricity-related services provided by the Defendants. The TCPA,… Read More

In Lynn v. Monarch Recovery Management, Inc.--- Fed.Appx. ----, 2014 WL 4922451 (4th Cir. 2014), the 4th Circuit Court of Appeals found that a debt collector could not rely on the TCPA's land-line/EBR exemption where the debtor was charged for the call. The TCPA specifically prohibits “mak[ing] any call ... using any [ATDS] or an artificial or prerecorded voice ... to any… 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 Neptune v. Whetstone Partners, LLC, --- F.Supp.2d ----, 2014 WL 3734549 (S.D.Fla.,2014), the District Court found:  Upon consideration, the Court concludes that Plaintiff's Complaint includes sufficient allegations that support his claim that the calls were autodialed or the messages were prerecorded. Plaintiff alleges that Defendant made approximately forty-five (45) calls to Plaintiff's cellular telephone from November 2013 through April… Read More

In De Los Santos v. Millward Brown, Inc., 2014 WL 2938605 (S.D.Fla. 2014), Judge Marra found that a TCPA Plaintiff had standing to pursue a TCPA claim despite the fact that the Plaintiff was not charged for the call. Defendant moves to dismiss Plaintiff's complaint for lack of standing, arguing that the TCPA requires a plaintiff to be charged for… Read More

In Taylor v. Universal Auto Group I, Inc., 2014 WL 2987395 (W.D.Wash. 2014), Judge Strombom rejected the argument that the TCPA requires the Plaintiff to have incurred a cost for the call, but agreed that Plaintiff’s providing his cellular telephone number to a predecessor business constituted consent to be called by the successor business. Tacoma Dodge Chrysler Jeep (Tacoma Dodge)… 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

In Sojka v. DirectBuy, Inc., 2014 WL 1304234 (N.D.Ill. 2014), Judge Feinerman found a TCPA class action adequately pleaded.  The facts were as follows: In this consolidated suit, Stephanie Sojka, Daniel Hartowicz, and Kenyatta Gilliam, on behalf of three putative classes, and Mark Sojka, individually, allege that DirectBuy, Inc. violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227… Read More

In Baker v. Caribbean Cruise Line, Inc.,  2014 WL 880634 (D.Ariz. 2014), Judge Rosenblatt held that the Plaintiff adequately pleaded the use of an ATDS under the TCPA. Defendant asserts that Plaintiff's complaint fails to support the allegation that the calls were automated or used an artificial or prerecorded voice, and omits facts about the time, length, and content of the calls.… Read More

Yes, you read it right. In Gragg v. Orange Cab Co., Inc., --- F.Supp.2d ----, 2014 WL 494862 (W.D.Wash. 2014), Judge Lasnik held that a TCPA did not use an ATDS within the meaning of the TCPA.  The facts were as follows: Defendant Orange Cab Company, Inc. (Orange Cab) utilizes TaxiMagic, a Ridecharge, Inc. product, as a means of remaining… Read More

In Wills v. Optimum Outcomes, Inc., 2014 WL 220707 (D.Utah 2014), Judge Warner found that a TCPA Plaintiff failed to state a claim against a medical debt collector because the Plaintiff had given his cellular telephone number in a letter to the Creditor. At some point in the past, Plaintiffs received services from InterMountain Healthcare, which in turn hired Defendant to collect… Read More

In Daniels v. Comunity Lending, Inc., 2014 WL 51275 (S.D.Cal. 2014), Judge Hayes found Plaintiff’s FDCPA and TCPA claims not adequately pleaded. The FDCPA applies to debt collectors, but not to creditors. See Mansour v. Cal–Western Reconveyance Corp., 618 F.Supp.2d 1178, 1182 (D.Ariz.2009). Under the FDCPA, a “debt collector” is “any person who uses any instrumentality of inter-state commerce or… Read More

In Legg v. Voice Media Group, Inc., --- F.Supp.2d ----, 2014 WL 29594 (S.D.Fla. 2014), Judge Cohn found that a TCPA Plaintiff adequately pleaded use of an autodialer as well as that the Plaintiff could and did revoke consent to receive text messages.  This putative class action arose from the allegedly improper transmission of text messages by Defendant Voice Media… Read More

In Murphy v. DCI Biologicals Orlando, LLC, 2013 WL 6865772 (M.D.Fla. 2013), Judge Honeywell found that a blood bank did not violate the TCPA by sending text messages to a prior blood donor who had provided his cellular telephone number in connection with giving blood.  Murphy was paid for donating his blood through a blood plasma center in Orlando, DCI… Read More

In Markovic v. Appriss, Inc., 2013 WL 6887972 (S.D.Ind. 2013), Judge Magnuss-Stinson found that a Plaintiff properly pleaded a TCPA case by alleging that calls used up minutes on his plan. Appriss contends that Mr. Markovic's Complaint must be dismissed because he has failed to allege that he was specifically charged for the allegedly unlawful call he received from Appriss.… Read More