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.