In a move that will help TCPA defendants to investigate claims brought against them, a federal court in Michigan held that a plaintiff failed to state a claim under the statute because she neglected to plead the telephone number at which she claimed to receive illegal calls.
Tiffany Strand alleged that she received multiple automated calls to her cell phone from Corinthian Colleges over a four-year period offering her the opportunity to enroll in classes. Even after she requested that the calls stop, she said the calls continued. One problem: Strand did not put her telephone number in the complaint.
Corinthian filed a motion to dismiss for failure to state a claim, arguing that a plaintiff in a TCPA action must plead her telephone number to state a plausible claim for relief. Without the telephone number and the time and date of the calls, a plaintiff has not stated sufficient grounds for a claim, Corinthian said. Basing its holding only on the need to supply a phone number as part of the complaint, the court agreed.
Under Rule 8 of the Federal Rules of Civil Procedure and the heightened pleading standards articulated by the U.S. Supreme Court in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, a defendant must be provided with fair notice of what the claim is and the grounds upon which it rests, U.S. District Court Judge Robert Holmes Bell explained. “Specifically, a plaintiff is required to plead facts that make a defendant’s liability plausible. This means going beyond factual allegations that are merely consistent with a defendant’s liability. … [T]he bare assertions in the complaint that the calls were placed to plaintiff’s ‘cellular telephone,’ are merely consistent with defendant’s liability, but do not serve to put defendant on notice of the grounds on which plaintiff’s claim lies.”
“The plain language of the statute refers to calls placed to a ‘telephone number assigned to a…cellular service.’ A plain reading of the statute then, shows that to prove her case a plaintiff must prove that a defendant called a specific telephone number and that the telephone number was assigned to a cellular telephone service,” the court wrote. “Notice pleading, therefore, under Twombly and Iqbal, necessarily requires that a plaintiff plead the telephone number in question to ‘raise a right to relief above a speculative level.’ Otherwise, as defendant argues, ‘[w]ithout the telephone number, TCPA defendants are forced to make educated guesses as to which telephone number belongs to a newly filed
Strand’s alternative argument for omitting her telephone number – “privacy reasons” – was similarly insufficient. “[I]f plaintiff is concerned about the privacy of her telephone number, she can easily file it as an attachment under seal,” the court said. The court declined to dismiss the complaint with prejudice, which allows the plaintiff to file an amended complaint that includes her cellular telephone number.
To read the opinion in Strand v. Corinthian Colleges, Inc., click here.
Why it matters: The decision provides defendants with case law as support for requiring plaintiffs to plead a phone number allegedly called in TCPA suits or face dismissal of the complaint, which is a boon to defendants that have been unable to investigate TCPA plaintiffs’ claims in advance of formal discovery.