ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
Re: Dkt. No. 14
EDWARD J. DAVILA, District Judge.
Plaintiff Roosevelt Priester ("Plaintiff") alleges in this putative class action that Defendant eDegreeAdvisor, LLC ("Defendant") violated the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227 et seq., by making marketing calls to his cellular telephone. Presently before the court is Defendant's motion to dismiss the First Amended Complaint ("FAC") under Federal Rule of Civil Procedure 12(b)(6). Dkt. No. 14. Plaintiff opposes the motion.
Federal jurisdiction arises under 28 U.S.C. § 1332. Having carefully reviewed the parties' pleadings, the court has determined that Defendant's dismissal argument is meritorious.
Accordingly, its motion will be granted for the reasons explained below.
Plaintiff alleges Defendant "provides online and campus-based colleges and universities with highly engaged leads of consumers of have express an interest to enroll." FAC, Dkt. No. 1, at ¶ 5. Beginning in around August, 2015, Plaintiffs alleges Defendant contacted him on his cellular telephone in an attempt to solicit Defendant's services.
On the issue of consent, Plaintiff alleges that during one Defendant's calls, Plaintiff spoke to a representative and asked to be placed on a "do not call" list.
Plaintiff asserts two causes of action under the TCPA, once for negligent violations and one for knowing and/or willful violates. These motions followed the filing of the FAC.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead each claim with sufficient specificity to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests."
When deciding whether to grant a motion to dismiss, the court must generally accept as true all "well-pleaded factual allegations."
Also, the court usually does not consider any material beyond the pleadings for a Rule 12(b)(6) analysis.
Defendant argues the Complaint fails to state a violation of the TCPA because it does not plausibly establish Defendant made calls to Plaintiff using an "automated telephone dialing system," or "ATDS." The court agrees.
A. Governing Authority
"[T]he TCPA generally prohibits making nonemergency, unsolicited calls advertising `property, goods, or services' using automatic dialing systems and prerecorded messages to telephones and cellular phones."
47 U.S.C. § 227(b)(1)(A)(iii).
Thus, "[t]he three elements of a TCPA claim are: (1) the defendant called a cellular telephone number; (2) using an automatic telephone dialing system; (3) without the recipient's prior express consent."
B. Application to FAC
Defendant's purported use of an ATDS when calling Plaintiff is only addressed once in the FAC. Plaintiff alleges: "Defendant used an `automatic telephone dialing system", as defined by 47 U.S.C. § 227(a)(1) to place its call to Plaintiff seeking to solicit its services." FAC, at ¶ 7. That statement is a classic conclusory allegation. Nonetheless, Plaintiff argues the court can infer that Defendant utilized an ATDS from other allegations in the FAC. To that end, Plaintiff notes the allegation that Defendant "persistently" continued to call after Plaintiff told Defendant to stop and revoked any consent provides "sufficient indirect or contextual facts to support Plaintiff's allegation that called were placed using an ATDS." The court is not persuaded.
At the outset, the court rejects any contention that a TCPA plaintiff's pleading obligation is satisfied by generically alleging the use of an ATDS by a defendant, in a manner that simply parrots the statutory language. Finding otherwise would eviscerate the plausibility standard to which complaint's allegations must adhere under Rule 8.
In his opposition to the motion to dismiss, Plaintiff represents that pleading a TCPA defendant's use of an ATDS can be a difficult task. The court appreciates this difficulty since that sort of information, peculiar to the defendant as a general matter, is not necessarily available when an action is filed and may only be confirmed through discovery. There is therefore some notable tension between the need for plausible allegations and the factual reality underlying a TCPA claim, and some leeway is warranted. In light of this challenge, courts have recognized that "[p]laintiffs alleging the use of a particular type of equipment under the TCPA are generally required to rely on indirect allegations, such as the content of the message, the context in which it was received, and the existence of similar messages, to raise an inference that an automated dialer was utilized."
Leeway aside, the problem for Plaintiff is that his sparse factual allegations are insufficient to plausibly suggest, even indirectly, that Defendant used an ATDS when it called him. The simple facts that calls were numerous,
In sum, the court finds the FAC fails to plausibly allege Defendant's use of an ATDS. Because the causes of action fails on an essential element of a claim under the TCPA, the FAC must therefore be dismissed.
Based on the foregoing, the Motion to Dismiss (Dkt. No. 14) is GRANTED. The causes of action asserted in the FAC are each DISMISSED WITH LEAVE TO AMEND. Any amended complaint must be filed on or before