Rallo v. Palmer Administrative Services, Inc.

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Michael E. Hegarty, United States Magistrate Judge

         Before 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 granted.

         BACKGROUND

         The 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).

         Plaintiff 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.

         Based 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.

         LEGAL STANDARD

         “To 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.

         Plausibility 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.

         However, “[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).

         ANALYSIS

         Defendant 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. § ...