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From the Four Corners of the Pleading: Plaintiffs Cannot Rely On Factual Allegations Outside the Pleadings To Defeat a Motion to Dismiss

The Northern District of Texas recently dismissed a TCPA claim because “the Complaint nowhere alleges that he was called or texted using an ATDS.” The Court’s opinion emphasized that simply asserting that “the text messages were ‘automated’” was not sufficient to state a TCPA claim, and that plaintiffs cannot casually add new factual allegations in their oppositions to a motion to dismiss.

The complaint in Reed v. Quicken Loans, Inc., No. 18-3377, 2019 WL 4545010 (N.D. Tex. Sept. 3, 2019) made only one reference to the allegedly automated nature of the defendant’s text messages and calls:

[T]he Defendant has not only violated the Act through its barrage of calls to the Plaintiff, calls which were not made for emergency purposes and which were made without the prior express consent of Mr. Reed, as well as Defendant’s numerous automated text messages to Plaintiff’s private cell phone – but Defendant did so after being expressly instructed in writing to cease all such communications.

In ruling on the motion to dismiss, the Court quickly concluded that the Complaint had failed to plead facts that would have shown that the text messages or phone calls had been placed with equipment that “randomly or sequentially generated his number,” or even any indicia of an ATDS such as “dead-air time.”

To salvage his Complaint, the plaintiff argued that courts “recognize that words like ‘automated’ are sufficient . . . to describe in layman terms the . . . circumstances surrounding the calls that make it plausible that they were made using an ATDS.” He then offered additional facts—in his brief rather than an amended pleading—about the nondescript and impersonal nature of the messages. For example, he claimed that each text message was structured in the same way with only slight differences in their content – each related to an unsolicited loan, not identified as to any terms, and addressed to an unidentified party from an unidentified individual.

The Court declined to consider these facts because they had not been pleaded in the Complaint. It explained that, “if the Court is presented with matters outside the pleadings in deciding a 12(b)(6) motion and does not exclude them, the motion must be treated as one for summary judgment . . . . Otherwise, a court must limit itself to the contents of the pleadings . . . .” And as for the pleading itself, it did not “allow the Court to infer more than the mere possibility of misconduct.”

This case is another reminder that a bare-bones Complaint is insufficient to establish the legal and factual sufficiency for a TCPA claim, especially as it relates to whether an ATDS is in use. While courts have the authority to grant leave to amend, defendants should scrutinize allegations and challenge any new facts that have not been properly alleged in an amended pleading.

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About this Author

Michael Daly, Drinker Biddle Law Firm, Philadelphia, Litigation and Retail Attorney

Michael P. Daly defends class actions and other complex litigation matters, handles appeals in state and federal courts across the country, and counsels clients on maximizing the defensibility of their marketing and enforceability of their contracts. A recognized authority on class action and consumer protection litigation, he often speaks, comments, and writes on recent decisions and developments in the class action arena. He is also a founder of the firm’s TCPA Team; the senior editor of the TCPA Blog, which provides important information and insight...


Qiusi Y. Newcom assists clients with navigating emerging issues and regulatory compliance in telecommunications laws and international trade laws. She is an associate with the Telecommunications Team and the Customs and International Trade Team.

Prior to joining Drinker Biddle, Qiusi was an associate with a boutique employment law firm where she handled labor and employment matters before federal courts and federal agencies, including the Equal Employment Opportunity Commission. Qiusi also gained valuable litigation experience through public interest work involving personal injury and criminal matters. During law school, Qiusi was a member of and published an article in the Federal Communications Law Journal. Qiusi is fluent in Mandarin Chinese.