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Parroting the Elements of the Statute—Without Pleading Any Substantive Facts—Isn’t Good Enough Under Rule 8 for the District of Connecticut

The United States District Court for the District of Connecticut recently granted a Defendant’s motion to dismiss Plaintiffs’ TCPA claims because Plaintiffs failed to adequately allege facts supporting an inference that Defendant (1) used an automatic telephone dialing system (“ATDS”) and (2) failed to maintain an internal do-not-call list. Sterling v. Securus Technologies, Inc., 2020 WL 2198095 (D. Conn. May 6, 2020). Plaintiffs originally sued multiple Defendants for negligent and willful violations of the TCPA. Id. at *1. Defendants removed the case to federal court and filed motions to dismiss the original Complaint. Id. Plaintiff amended, and Defendants again moved to dismiss. Id. The Court dismissed all claims against Defendants. Id. The Court then granted Plaintiffs’ motion for leave to file a Second Amended Complaint. Id. at *2. Plaintiffs’ Second Amended Complaint only named Defendant Securus, and Defendant again moved to dismiss. Id.

Plaintiffs’ TCPA claims included (1) Defendant’s alleged use of an ATDS, (2) Defendant’s alleged failure to maintain an internal do-not-call list, (3) knowingly and willingly using an ATDS, and (4) knowingly and willingly failing to maintain an internal do-not-call list. Id. at *3. Plaintiffs alleged that Defendant contacted them on their cellular devices in an attempt to solicit the purchase of Defendant’s services. Id. at *1. Plaintiffs further alleged that Defendant called them collectively hundreds of times over the course of three years using an ATDS. Id. Plaintiffs claimed that none of the calls were for emergency purposes and that none were made with their prior consent. Id.

Granting Defendant’s motion to dismiss, the Court first explained that to pass scrutiny under Rule 8, Plaintiffs “must do more than simply parrot the statutory language.” Id. at *4 (quoting Baranski v. NCO Fin. Sys., Inc., 2014 WL 1155304, at *6 (E.D.N.Y. Mar. 21, 2014)). Accordingly, the Court concluded that Plaintiffs’ merely alleging the number from which the alleged automated calls originated and stating that Defendant used an “automatic dialing system” was insufficient to state a cognizable TCPA claim under Section 227(b) of the Act. Id. at *4–5.

Regarding Plaintiffs’ claim that Defendant failed to maintain an internal do-not-call list in violation of Section 227(c), Plaintiffs never alleged that they ever actually requested to be placed on the national do not call list, a failure fatal to a Section 227(c) claim. Id. at *5. Indeed, despite having an additional opportunity to amend their Complaint, Plaintiffs failed to provide any additional allegations regarding the maintenance or procedures for a do-not-call list. Id. Accordingly, Plaintiffs failed to state a claim under Section 227(c). Id.

Finally, because Plaintiffs failed to adequately plead any TCPA claims generally, the Court concluded that Plaintiffs’ “knowing and willful” claims also failed. Id. at *6. Because Plaintiffs previously had numerous opportunities to cure their defective pleading, the Court dismissed the Second Amended Complaint with prejudice. Thus, in Sterling, the District Court for the District of Connecticut joined the growing number of courts ready and willing to grant a defendant’s motion to dismiss where plaintiffs merely repeat the statutory language and offer only threadbare assertions that an ATDS was used.

© 2021 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume X, Number 135

About this Author

Laura Phillips, Drinker Biddle Law Firm, Washington DC, Communications Law Attorney

Laura H. Phillips is a partner in and chair of the firm's Government & Regulatory Affairs Practice Group and a member of the Telecommunications & Mass Media Team.  She has over 25 years of experience working in nearly every aspect of the telecommunications market.

Laura counsels wireless and wired technology entrepreneurs and represents these clients on issues related to the development of new technologies, including devoting substantive attention to the development of spectrum auctions, network...

William Wright, Drinker Biddle Law Firm, Floorham Park, Data Management and Litigation Attorney
Senior Attorney

William A. Wright assists clients with complex business disputes, consumer class actions, and emerging e-discovery and data management issues.

Bill’s litigation experience includes a broad range of representative matters, including consumer class actions, complex contract disputes, products liability and wrongful death defense. He defends large institutional clients in complex commercial litigation and routinely manages subject matter experts and consultants. Bill has appeared in numerous state and federal courts and before...

Ever M. Hess Litigation Attorney Faegre Drinker Biddle & Reath Florham Park, NJ

Ever Hess assists clients with various aspects of legal proceedings and trial preparation, including legal research and the drafting of motions and other legal memoranda.

Ever clerked for the Honorable Kathryn Grill Graeff, Court of Special Appeals of Maryland and interned for the Honorable Carol Ann Dalton of the District of Columbia Superior Court. She has researched an array of legal issues, drafted opinions, and supported attorneys in drafting and filing motions and petitions.

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