Defendant Synchrony Bank brought a Motion to Dismiss Plaintiff’s Amended Complaint in the U.S. District Court for the Middle District of Florida, which was denied in its entirety.  Plaintiff’s Complaint alleges, in part, that Defendant violated the TCPA based on numerous phone calls he received from Synchrony attempting to collect a debt from two credit cards.  Defendant argued that Plaintiff’s Complaint must be dismissed because it does not sufficiently allege the use of an automatic telephone dialing system (“ATDS”).  The basis of Synchrony’s argument was that (1) Plaintiff admitted to speaking to an employee during the calls and (2) Plaintiff failed to allege facts to support Defendant’s use of an ATDS.

With respect to the admission that Plaintiff spoke to an employee on each call, the Court held that Plaintiff “could have been called by a predictive dialer which would dial the number automatically and then connect the call to an employee.”   White v. Synchrony Bank , No. 8:15-cv-01205, 2015 WL 5821102, at *2 (M.D. Fla. Oct. 2, 2015) (citing In re Rules and Regs. Implementing the TCPA of 1991 , 18 FCC Rcd. 14014, 14093 (2003)).  The Court also recognized that the use of a predictive dialer is the equivalent of using an ATDS, and therefore, Plaintiff’s “claim is not negated simply because he spoke to a human being.”   Id. (citing Brown v. NRA Group, LLC , 14-cv-610, 2015 WL 3562740, at *2 (M.D. Fla. June 5, 2015)).

Next, the Court held that Plaintiff’s allegations were sufficient to draw a plausible inference that an ATDS was used to call him by providing facts “such as when the calls were made and the calls’ subject matter.”   Id.   Specifically, the Court noted that Plaintiff met the pleading requirements when he alleged “how many calls there were, when they took place, and their subject, which are sufficient factual allegations to create a plausible inference that the calls were made using an ATDS.”   Id. (citing Gardner v. Credit Mgmt. L.P. , No. 8:14-cv-1677, 2015 WL 1235037, at *2 (M.D. Fla. Mar. 17, 2015)).  The Court also concluded that Plaintiff’s allegation that “Synchrony ignored his requests to stop calling him supports an inference that the defendant was using an ATDS.”   Id. It is therefore reasonable to infer that Defendant “would not have called Mr. White three times a day for a month if an employee was manually dialing his number and repeatedly told to no longer call …” Id.

This case is important in that it illustrates how a plaintiff can style a complaint to avoid the pitfalls of not fully knowing about the equipment and process used by a defendant to place calls.  Here, we see a court looking to the number, timing, pattern, subject matter, and context in which a plaintiff received unwanted calls to determine whether an ATDS could have been used.