On April 17, Judge Robert Bell of the Western District of Michigan found that a plaintiff does not state a claim under the TCPA if she does not plead the telephone number at which she allegedly had been called. See Strand v. Corinthian Colleges, Inc., No. 13-1235, 2014 U.S. Dist. Lexis 52963 (W.D. Mich. Apr. 17, 2014). The decision is a welcome one for defendants who have encountered counsel who only disclose a plaintiff’s telephone number as part of reciprocal (and inevitably asymmetrical) discovery.
In Strand, the plaintiff alleged that the defendant used an ATDS to send prerecorded messages to her cellular telephone number in violation of the TCPA. See 47 U.S.C. § 227(b)(1)(A)(iii) (“It shall be unlawful for any person … to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice … to any telephone number assigned to a … cellular telephone service….”). In both her original and amended complaints, however, she omitted the number at which she allegedly had been called.
The defendant moved to dismiss, arguing that a TCPA complaint that omits the number called does not state a plausible claim or give fair notice of the grounds for relief as required by Rule 8, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). The court summarized the defendant’s argument as follows:
Defendant argues that if a plaintiff is not required to provide her cellular telephone number and the times and dates the alleged violations occurred, a defendant cannot reasonably determine if a violation occurred. Defendant asserts that to impose a more lenient pleading standard would allow plaintiffs in TCPA cases to extort settlements from defendants by imposing asymmetric discovery costs on them, contrary to the policy aims of Iqbal and Twombly. Defendant’s argument, at its core, is that without the telephone number and the time and date of the calls, it is not on sufficient notice of the grounds on which Plaintiff’s claim lies.
Strand, 2014 U.S. Dist. Lexis 52963, at *6. The plaintiff countered that the defendant was blurring the line between Rule 8’s plausibility standard and Rule 9’s particularity standard:
Plaintiff characterizes Defendant’s argument as requiring a ‘particularity’ standard akin to the standard imposed on fraud pleadings under Fed. R. Civ. P. 9(b). Plaintiff cites some ten unpublished district court cases from around the country … for the proposition that she need not plead specifically the date and time of each allegedly unlawful telephone call. The Court need not evaluate the persuasiveness of these decisions, as the present motion can be decided on the basis of Plaintiff’s failure to plead the cellular telephone number she alleges was called in violation of § 227(b)(1).
Id. at *7.
The court sided with the defendant. Although it acknowledged that the defendant “has not cited a specific authority on point that requires a plaintiff to plead her cellular telephone number,” it was nonetheless “convinced that proper application of Fed. R. Civ. P. 8, as applied in light of Iqbal and Twombly, supports such a requirement in TCPA cases.” Id. at *8. It held as follows:
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. Here, Plaintiff’s complaint alleges that Defendant made calls to her cellular telephone and that such calls were made, to her knowledge, from an ATDS. Plaintiff also alleges numerous facts to bolster her contention that Defendant utilizes ATDS technology, arguably raising that contention beyond the speculative level. However, the 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.
Id. at *8-9.
The court also quickly disposed of the “privacy reasons” that the plaintiff had offered as a secondary justification for withholding her telephone number. See id. at *10-11 (“However, if Plaintiff is concerned about the privacy of her telephone number, she can easily file it as an attachment under seal.”). It then gave her leave to file a further amended complaint that would cure her prior pleading deficiencies, which she did just a few days later. See id.(finding that granting leave to amend the pleading would be “more equitable and will be a more efficient use of the parties’ resources.”).
It is not uncommon for plaintiffs’ counsel to withhold their clients’ telephone numbers and use them as bargaining chips to try to obtain reciprocal discovery from defendants. If followed, the Strand decision could put an end to that tactic and put defendants in a better position to make the early assessment of claims that Rule 8 anticipates.