United States District Court, W.D. Arkansas, Fayetteville Division
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS, UNITED STATES DISTRICT JUDGE.
September 6, 2017, the Court held a hearing on a pending
motion, followed by an initial case management conference.
The parties presented oral argument on Defendant State Farm
Bank, F.S.B's ("State Farm") Motion to Dismiss
(Doc. 13). The Court ruled on the Motion from the bench, but
now issues the following Order to memorialize its decision.
To the extent anything in this Order differs from what was
stated from the bench, this Order will control. For the
reasons stated below, the Motion to Dismiss (Doc. 13) filed
by State Farm is DENIED.
First Amended Complaint, Mr. Ueckert alleges that State Farm
repeatedly violated the Telephone Consumer Protection Act 47
U.S.C. § 227 et seq., ("TCPA") by
attempting to collect an alleged credit card debt through a
series of collection calls to his cellular phone. State Farm
allegedly placed these calls through an automated telephone
dialing system ("ATDS"). Mr. Ueckert claims that
State Farm placed calls to his cellular phone using phone
numbers including, but not limited to, (888) 634-0012.
See Doc. 9, ¶ 11. On or about October 21, 2016,
Mr. Ueckert called State Farm phone number (888) 634-0012 and
was directed to an automated system before speaking with a
female representative. See Doc. 9, ¶ 18. He
requested that State Farm cease calling his cellular
telephone using an autodialer and revoked any and all consent
to do so. Id. at ¶ 20.
on October 24, 2016, Mr. Ueckert received two collections
calls from State Farm. Id. at ¶ 21. Thereafter,
he continued to receive calls on an almost daily basis
through February 9, 2017. Id. at ¶ 26. In
total, he claims that State Farm placed at least 125
automated collection calls to his cellular telephone.
Id. at ¶ 27. He further maintains that the
calls occurred at all hours of the day and could not be
predicted or anticipated, and would systematically terminate
when they were directed to voicemail. Id. at ¶
¶ 20, 25. Finally, Mr. Ueckert claims that State Farm
has the capacity to store or produce phone numbers using a
random or sequential generator and has the ability to call
those numbers. Id. at¶¶12, 13.
Farm argues in its Motion to Dismiss that Mr. Ueckert did not
provide well-pleaded factual allegations in his First Amended
Complaint in order to survive a Rule 12(b)(6) motion to
dismiss. To state a plausible cause of action under the TCPA,
Mr. Ueckert must allege that: (1) a call was made; (2) the
caller used an ATDS or artificial or prerecorded voice; (3)
the telephone number called was assigned to a cellular
telephone service; and (4) the caller did not have prior
express consent of the recipient. Hartley v. Green Tree
Servicing, LLC, 934 F.Supp.2d 977, 982 (N.D. III. 2013)
(citing 47 U.S.C. § 227(b)(1)(A)(iii)). The briefing by
both parties solely focuses on whether the First Amended
Complaint contains sufficient facts to establish a cause of
action as to the ATDS element. State Farm also argues that
Mr. Ueckert's request for attorneys' fees should be
dismissed because the TCPA does not provide for recovery of
attorneys' fees. See Doc. 14, p. 4, 10. However,
Mr. Ueckert's request for fees appears only in his
catch-all prayer for relief in one of the final paragraphs of
the Amended Complaint. Since the issue of fees is not yet
ripe, the Court will not address it further in this opinion.
See Doc. 9, ¶ 41.
survive a Rule 12(b)(6) motion to dismiss, a complaint must
provide "a short and plain statement of the claim that
[the plaintiff] is entitled to relief." Fed.R.Civ.P.
8(a)(2). The purpose of this requirement is to "give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests." Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The Court
must accept all of a complaint's factual allegations as
true, and construe them in the light most favorable to the
plaintiff, drawing all reasonable inferences in the
plaintiffs favor. See Ashley Cnty., Ark. v. Pfizer,
Inc., 552 F.3d 659, 665 (8th Cir. 2009). However, the
complaint "must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is
plausible on its face.'" Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
at 570). "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Id. "A
pleading that offers 'labels and conclusions' or
'a formulaic recitation of the elements of a cause of
action will not do.' Nor does a complaint suffice if it
tenders 'naked assertion[s]' devoid of 'further
factual enhancement."' Id. In other words,
while "the pleading standard that Rule 8 announces does
not require 'detailed factual allegations, ' . .. it
demands more than an unadorned, the
defendant-unlawfully-harmed-me accusation." Id.
subject of contention in the Motion to Dismiss is whether Mr.
Ueckert sufficiently pleaded the ATDS element of the TCPA
claim. While this Court has not previously reviewed this
issue, other district courts have concluded that merely
reciting elements-alleging there is an ATDS without any
supporting facts-is insufficient to state a claim. Martin
v. Direct Wines, Inc., 2015 WL 4148704, at *2 (N.D. III.
July 9, 2015) (dismissing TCPA claim where plaintiff's
complaint simply parroted the language of the statute and
included no pertinent facts); Hanley, 934 F.Supp.2d
at 983 (concluding that "merely recit[ing] naked facts
mimicking the elements of a cause of action under the
TCPA" is not sufficient to state a claim). When
supporting factual allegations are made, courts find that
plaintiffs have met the pleading burden. Izsak v.
Draftkings, Inc., 191 F.Supp.3d 900, 904 (N.D. III.
2016) (allowing TCPA claim to proceed where plaintiff
provided detailed accounts of automated voice and text
messages to establish use of an ATDS); Connelly v. Hilton
Grant Vacations Co., LLC, 2012 WL 2129364, at *4 (S.D.
Cal. June 11, 2012) (ruling that plaintiff's factual
allegations allowed the court to infer that the alleged calls
were generated by an ATDS); see also Kramer v. Autobytel,
Inc., 759 F.Supp.2d 1165, 1171 (N.D. Cal. 2010) (same).
Johansen v. Vivant, Inc., the court determined that
without the benefit of discovery, it was unreasonable to
require a plaintiff to elaborate on the specific technical
details of a defendant's alleged ATDS. 2012 WL 6590551,
at *3 (N.D. III. Dec. 18, 2012). However, it was not
unreasonable to require a plaintiff to provide the
circumstances surrounding the calls that led him to believe
the defendant had used an ATDS. Id. "This
approach does not burden plaintiffs unduly by requiring
pleading of technical details impossible to uncover without
discovery, rather it necessitates that they plead only facts
easily available to them on the basis of personal knowledge
and experience." Id.
instant case, while the factual allegations concerning the
alleged ATDS may be sparse, Mr. Ueckert has met the
reasonable pleading burden placed upon him. In his First
Amended Complaint, Mr. Ueckert alleges that State Farm placed
its calls with an automated telephone dialing system.
See Doc. 9, p. 2. He also provided factual support
by detailing the circumstances which led him to believe State
Farm used an ATDS. Id. at 4. Mr. Ueckert provided
details such as the frequency, unpredictability, and the
nature of State Farm's calls. Id. These facts
are enough to satisfy the pleading standard for the ATDS
element of a TCPA claim.
Farm suggests that the Court should look beyond the
allegations in the First Amended Complaint and dismiss the
case on a finding that State Farm employed a Human Call
Initiator ("HCI") phone system to make the alleged
calls, and several courts have ruled that this system is not
an ATDS for purposes of the TCPA. See Doc. 20, p. 2.
While that may prove to be the case, "simply presenting
an alternative explanation for the facts alleged in the
complaint is insufficient to demonstrate that the complaint
fails to plausibly suggest a right to relief."
Izsak, 191 F.Supp.3d at 905.