Lessons In TCPA Pleading: Parroting Statutory Language Won’t Fly
The general Federal pleading rule on its face would not seem to demand much to set forth a Telephone Consumer Protection Act (TCPA) claim. Rule 8 of the Federal Rules of Civil Procedure simply requires in relevant part “a short and plain statement of the claim showing that the pleader is entitled to relief.” However, as the United States District Court for the Southern District of California ruled on September 30, mere recitation of the statutory definition of an Automatic Telephone Dialing System (ATDS) and other TCPA provisions does not meet that standard.
In Eric Caruso v. Cavalry Portfolio SVCS et al., 2019 U.S. Dist. LEXIS 169377, Case No.:19-CV-1224-CAB-AHG, decided September 30, 2019, Mr. Caruso, proceeding pro se, brought a TCPA action against three credit bureaus for allegedly calling his cell phone using an ATDS about a debt he did not owe. All three moved to dismiss the complaint for failure to state a claim.
Judge Bencivengo’s decision afforded a lesson in TCPA pleading, noting that Mr. Caruso “merely repeats the language under the TCPA and alleges the violations were committed by all of the credit bureau defendants generally.” Moreover, the “complaint lacks any facts pertaining to the conduct of any specific credit bureau defendant and their actions against the [plaintiff] which could result in a sufficient TCPA claim.”
Outlining the requisite allegations for a successful TCPA complaint, the Court “defined” an ATDS as “‘equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator,’” citing the 2009 9th Circuit decision in Satterfield v. Simon. So, here is at least one judge in the 9th Circuit (at least in this case) that chose not to cite the more expansive definition adopted in 2018 in Marks v. Crunch San Diego, LLC. Perhaps something to remember if appearing before Judge Bencivengo where the ATDS definition is at issue.
In any case, she found that Mr. Caruso’s complaint “simply parrots the statutory definition of an ATDS and other provisions of the TCPA, but the Defendants would have no way of determining if they have any information in their possession with respect to such calls with Plaintiff’s conclusory and sweeping allegations.” For example, there were no allegations (1) that a phone number belonging to any of the defendants was used to make the calls to the plaintiff, (2) regarding the content of the calls, or (3) “any circumstances that could support an inference that the calls were placed with an ATDS or an artificial or prerecorded voice.”
More generally, the Court observed that “by submitting imprecise and sprawling claims, Plaintiff effectively ‘calls on the court to disentangle and interpret its allegations.’” No dice on that task – “[p]laintiff’s conclusory allegations fall short of what is required for plausibility.” Motion to dismiss granted, albeit with leave to amend.
TCPA pleading lesson delivered in TCPAWorld.