While the precise functionalities required to constitute an ATDS in TCPAWorld remain elusive, yet another court has joined the chorus of decisions requiring that a Plaintiff plead more than the mere statutory elements of ATDS usage in order to state a plausible TCPA claim under Iqbal/Twombly.

In Naiman v. Freedom Forever, Case No.19-cv-00256-JSC, 2019 U.S. Dist. LEXIS 69728 (N.D. Cal. April 24, 2019) the court faced a standard fare motion to dismiss challenging the ATDS allegations in the Complaint. While every such motion affords an opportunity to the court to discuss the required functionalities of ATDS usage, the Maiman court declined and merely noted that the recitation of ATDS usage without supporting facts is insufficient to state a claim. As the Court put it: “[t]he complaint contains no further, factual allegations regarding the alleged use of an ATDS… [and] [s]uch ‘a formulaic recitation of the elements of a cause of action’ is insufficient to survive dismissal.”

Many courts have rejected ATDS recitation as sufficient to plead a plausible claim at the pleadings stage—even the formidable Morgan & Morgan saw one of their complaints nipped a few weeks back owing to this failure. Nonetheless, the Naiman decision is somewhat remarkable as it was decided within the Ninth Circuit’s footprint, where Marks is the law of the land and many courts have simply skipped over the ATDS issue at the pleading stage given how broad the Marks formulation is.

Notably, the Court also rejected the Plaintiff’s allegations as to who made the calls at issue for lack of factual pleading. In the Court’s view, allegations that a “Defendant” made the calls in question without allegations of “how the caller identified itself or what entity it was calling on behalf of” was insufficient to establish a defendant’s direct liability for the calls at issue. The Court also rejects the Complaint’s boilerplate recitation of agency as “wholly conclusory” and insufficient to state a plausible agency theory.

As such the Court granted Defendant Freedom Forever’s motion to dismiss with leave to amend. So whereas Defendant currently has freedom from this TCPA suit, it probably won’t last forever.