On February 29, 2016, U.S.D.J. Kimberly Mueller granted defendant Wells Fargo Bank, N.A.’s motion to dismiss in part with leave to amend.

Plaintiffs, Dale and Tonya Hensarling brought a suit against Wells Fargo, in part, for violations of the TCPA.  Plaintiffs alleged that Defendants made numerous calls to them to collect payments due on a mortgage loan.  Plaintiffs alleged that Defendant contacted them four or more times a day, and at times every day of the week using an automatic telephone dialing system (“ATDS”).

In response, Defendant filed a motion to dismiss based on Plaintiffs’ failure to allege sufficient facts to support their TCPA claim.  As the Court noted, a claim under the TCPA based on the use of an ATDS requires demonstrating that “(1) the defendant called a cellular telephone number (2) using an ATDS, or an artificial or prerecorded voice, (3) without the recipient’s prior express consent.” Hensarling v. Wells Fargo Bank, N.A., No. 1:15-cv-01555, 2016 WL 775950, *3 (E.D. Cal. Feb. 29, 2016) (citations omitted).  Here, Defendant argued that Plaintiffs merely restated the law in their pleading rather than alleging facts specific to show the use of an ATDS.  The Court agreed with Defendant and noted that Plaintiffs only “generally allege defendant called multiple times over several days, and, on occasions, multiple times within one day.”  Id.  Relying on Flores v. Adir Int’l, LLC, No. 15-00076, 2015 WL 4340020 (C.D. Cal. July 15, 2015) and its evaluation of Plaintiffs’ complaint, the Court concluded that Plaintiffs’ “First Amended Complaint does not allege facts that allow this court to draw reasonable inference regarding defendant’s use of an ATDS.”  Id. at *4 (citations omitted).  The Court, however, took into consideration that at the hearing Plaintiffs stated that if allowed to amend once more, they would provide more factual allegations to support the use of an ATDS.  As a result, the Court granted Defendant’s motion to dismiss, but allowed Plaintiffs leave to file an amended complaint.

This opinion once again highlights the importance of providing some factual details to overcome the pleading requirement for use of an ATDS.  A mere recitation of the law regarding ATDS use simply will not survive a motion to dismiss.