Although, as we have previously covered, decisions from various courts have already established that a plaintiff must do more than simply allege that a TCPA defendant used an automatic telephone dialing system (“ATDS”) to make calls that allegedly violate the TCPA, two recent decisions help illustrate the level of specificity in pleading required to survive a motion to dismiss. Depending on the District Court, that level does not appear to be exceedingly high.
In Martin v. Direct Wines, the plaintiff alleged that the defendants used an ATDS to make two calls to his cell phone for the purpose of selling wine. No. 15 C 757, 2015 U.S. Dist. LEXIS 89015 (N.D. Ill. July 9, 2015). The plaintiff’s complaint alleged that the defendants used “Five9 or similar dialer technology” and that the technology “constitutes an automatic telephone dialing system . . . because it had the capacity to dial phone numbers without human intervention. The complaint further alleged that “discovery will show precisely what dialer technology was used.” The Northern District of Illinois found these allegations insufficient to survive a motion to dismiss because the plaintiff simply parroted the language of the TCPA and made conclusory allegations that the defendants used an ATDS. The court noted that in order to raise the right to relief above a speculative level, the plaintiff must include facts such as “a description of a ‘robotic sound of the voice on the other line,’ . . . a lack of human response when [the plaintiff] attempted to have a conversation with the caller, having heard a distinctive ‘click and pause’ after having answered the call, or anything else about the circumstances of the call that led him to believe that it was made with an ATDS.
On the other hand, in Isgett v. Northstar Location Services, LLC, the District of South Carolina found that the plaintiff had sufficiently pled that the defendant used an ATDS where the complaint alleged that “[a] number of calls placed to the Plaintiff’s cellular telephone by Defendant were made through the use of an automatic telephone dialing system as defined by 47 U.S.C. § 227” where the plaintiff also plead additional facts that would support a reasonable inference that the defendant used an ATDS. No. 4:14-cv-4810-RBH, 2015 U.S. Dist. LEXIS 89252 (D. S.C. July 2, 2015). The plaintiff alleged that the defendant “made several phone calls within a twenty-four hour period, used six different telephone numbers, placed calls from [a] telephone number . . . using an automated dialer, and made calls to collect an alleged debt.”
Although the plaintiff in Isgett pled more facts regarding the circumstances surrounding the allegedly infringing calls than the plaintiff in Martin, the complaint in Isgett did not contain any of the facts noted by the Martin court as being absent from the Martin plaintiff’s complaint. Thus, while a defendant should be successful in obtaining dismissal of a complaint that only offers a conclusory allegation about the use of an ATDS, the two recent decisions imply that the inclusion of a minimal level of other facts about the calls that could infer the use of an ATDS may be enough to defeat a motion to dismiss.