In Curry v. Synchrony Bank, N.A., No. 1:15CV322-LG-RHW, 2015 WL 7015311 (S.D. Miss. Nov. 12, 2015), Chief Judge Guirola granted Defendant Synchrony Bank, N.A.’s (“Synchrony”) motion to dismiss in its entirety because Plaintiff’s bare allegation that Synchrony used an automatic telephone dialing system (“ATDS”) to place calls to her cellular phone was not enough “to raise a right to relief above the speculative level in a TCPA action.” Id. at *1.
In doing so, the Court rejected Plaintiff’s argument that the mere volume of calls over a particular period of time was sufficient indicia of an ATDS to withstand a motion to dismiss. The Court held that a plaintiff must provide sufficient contextual details regarding the call or calls at issue. Id. at *2. The Court went on to suggest what those contextual details could be, including “the content of [the] calls, whether she spoke to a human, whether there was dead air prior to a human picking up the line, or any other facts which may tend to make the use of an ATDS more likely.” Id.
This decision further confirms that some courts are unwilling to accept conclusory allegations without any contextual backdrop regarding the use of an ATDS. Courts have raised the bar and require allegations to go beyond merely following the statutory definition of an ATDS under the TCPA. Defense counsel should keep a watchful eye on allegations that an ATDS was in play.