United States District Court, D. Colorado
AMBER RALLO, on behalf of herself and all others similarly situated, Plaintiff,
PALMER ADMINISTRATIVE SERVICES, INC., and DOES 1-10, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE
Michael E. Hegarty, United States Magistrate Judge
the Court is Defendant Palmer Administrative Services,
Inc.'s Motion to Dismiss. ECF No. 18. Defendant argues
that Plaintiff's Complaint fails to state a claim for
relief under the Telephone Consumer Protection Act
(“TCPA”), because it does not allege the phone
calls at issue were made using an “automatic telephone
dialing system” (“ATDS”) or an artificial
or prerecorded voice. For the reasons that follow, I
respectfully recommend that the Motion to Dismiss be
following are factual allegations made by Plaintiff in the
Complaint, which are taken as true for analysis under
Fed.R.Civ.P. 12(b)(6) pursuant to Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
began receiving calls from Defendant on her cellular
telephone on approximately August 7, 2017. ECF No. 1 ¶
8. Plaintiff received about five calls per day in which
Defendant would solicit its services. Id.
¶¶ 8-9. Plaintiff is not a customer of Defendant,
and she received these calls despite being registered on the
“Do-Not-Call Registry” for at least thirty days
before Defendant's calls began. Id. ¶ 12.
She also directed Defendant to stop calling her at least
once. Id. At no time did Plaintiff give her express
consent to receive these calls. Id.
on these facts, Plaintiff filed this action on June 15, 2018,
asserting two claims under the TCPA: (1) for negligent
violations; and (2) for knowing or willful violations.
Id. ¶¶ 24-31. Defendant filed the present
Motion on September 28, 2018, ECF No. 18, which was fully
briefed on November 2, 2018, ECF No. 21.
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Plausibility, in the context of a motion to dismiss,
means that the plaintiff pled facts which allow “the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
Twombly requires a two-prong analysis. First, a court
must identify “the allegations in the complaint that
are not entitled to the assumption of truth, ” that is,
those allegations that are legal conclusions, bare
assertions, or merely conclusory. Id. at 679.
Second, the Court must consider the factual allegations
“to determine if they plausibly suggest an entitlement
to relief.” Id. at 681. If the allegations
state a plausible claim for relief, such claim survives the
motion to dismiss. Id. at 680.
refers “to the scope of the allegations in a complaint:
if they are so general that they encompass a wide swath of
conduct, much of it innocent, then the plaintiffs ‘have
not nudged their claims across the line from conceivable to
plausible.'” Khalik v. United Air Lines,
671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)).
“The nature and specificity of the allegations required
to state a plausible claim will vary based on context.”
Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210,
1215 (10th Cir. 2011). Thus, while the Rule 12(b)(6) standard
does not require that a plaintiff establish a prima facie
case in a complaint, the elements of each alleged cause of
action may help to determine whether the plaintiff has set
forth a plausible claim. Khalik, 671 F.3d at 1191.
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678. The
complaint must provide “more than labels and
conclusions” or merely “a formulaic recitation of
the elements of a cause of action, ” so that
“courts ‘are not bound to accept as true a legal
conclusion couched as a factual allegation.'”
Twombly, 550 U.S. at 555 (quoting Papasan v.
Allain, 478 U.S. 265, 286 (1986)). “Determining
whether a complaint states a plausible claim for relief will
. . . be a context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679. “[W]here
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, ” the
complaint has made an allegation, “but it has not shown
that the pleader is entitled to relief.” Id.
(quotation marks and citation omitted).
seeks an order dismissing the Complaint, because Plaintiff
makes no allegation that it used an ATDS or an artificial or
prerecorded voice for the calls, which is an essential
element of a TCPA claim. ECF No. 18 at 3-6. Relevant here,
the TCPA states “[i]t shall be unlawful for any person
. . . . to make any call . . . using any automatic telephone
dialing system or an artificial or prerecorded voice . . .
.” 47 U.S.C. § 227(b)(1)(A). The statute defines
an ATDS as “equipment which has the capacity . . . to
store or produce telephone numbers to be called, using a
random or sequential number generator; and . . . to dial such
numbers.” § 227(a)(1). Thus to state a TCPA claim,
a plaintiff must allege the following three elements:
(1) “[a defendant made] any call . . .”; (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.”
Forrest v. Genpact Servs., LLC, 962 F.Supp.2d 734,
736 (M.D. Pa. 2013) (quoting 47 U.S.C. §