United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
BARBARA M. G. LYNN CHIEF JUDGE
the Court is Defendant Safe Home Security Inc.'s Rule
12(b)(6) Motion to Dismiss. [ECF No. 12]. For the following
reasons, the Motion is DENIED IN PART and
GRANTED IN PART.
Factual and Procedural Background
Mary Kathleen Adams brings this action against Safe Home
Security Inc. for alleged violations of the Telephone
Consumer Protection Act, 47 U.S.C. § 227
(“TCPA”) and the Texas Debt Collection Act, Tex.
Fin. Code Ann. § 392 (“TDCA”). The Complaint
[ECF No. 1] alleges that Plaintiff purchased a contract for
home security services from Defendant, and that following the
expiration of the contract, Plaintiff began to receive phone
calls from Defendant, attempting to collect on a debt claimed
to be past due. [Id. ¶¶ 14-16]. These
calls were all placed to Plaintiff's cell phone and most
originated from the phone number (860) 740-5378.
[Id. ¶ 11]. Plaintiff claims that each call
followed a similar pattern. After Plaintiff answered the
call, there would be a pause of several seconds before a live
representative spoke. [Id. ¶ 13]. Plaintiff
claims that she informed Defendant that these were erroneous
charges, for dates after Plaintiff terminated the contract,
and Plaintiff demanded, several times, that Defendant stop
calling. [Id. ¶¶ 18-20]. Nevertheless,
Defendant made at least 20 calls to Plaintiff's cell
phone following Plaintiff's demand. [Id.
¶¶ 6, 14-15].
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). It does not need to
include “detailed factual allegations.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Instead, it must provide a factual basis “to
‘state a claim to relief that is plausible on its
face.'” Id. (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). The Court will
accept all well-pleaded factual allegations as true
“with all reasonable inferences drawn in the light most
favorable to the plaintiff.” Causey v. Sewell
Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir.
2004). However, the Court will not credit “conclusory
allegations, unwarranted factual inferences, or legal
conclusions.” Ferrer v. Chevron Corp., 484
F.3d 776, 780 (5th Cir. 2007).
Plaintiff Has Sufficiently Pleaded a Violation of the
227(b) makes it unlawful for any person “to make any
call . . . using any automatic telephone dialing system . . .
to any telephone number assigned to a . . . cellular
telephone service for which the called party is charged for
the call.” 47 U.S.C. § 227(b). A violation occurs
if: “(1) the defendant called a cellular telephone
number; (2) using an automatic telephone dialing system; (3)
without the recipient's prior express consent.”
Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d
1036, 1043 (9th Cir. 2012).
Motion to Dismiss focuses on Defendant's alleged use of
an automatic telephone dialing system (“ATDS”).
An ATDS is “equipment which has the capacity . . . to
store or produce telephone numbers to be called, using a
random or sequential number generator; and . . . to dial such
numbers.” 47 U.S.C. § 227(a). “[C]ourts have
noted the difficulty a plaintiff faces in knowing the type of
calling system used without the benefit of discovery.”
Hickey v. Voxernet LLC, 887 F.Supp.2d 1125, 1129
(W.D. Wash. 2012) (internal quotation omitted). As a result,
a plaintiff can plead facts about the details and
circumstances of the calls, and a “description of the
calls as including dead-air time is sufficient to establish
use of an [ATDS].” Cunningham v. TechStorm,
LLC, No. 3:16-cv-02879-M, 2017 WL 721079, at *3 (N.D.
Tex. Feb. 23, 2017) (Lynn, C.J.). Plaintiff alleges that each
of the phone calls she received began with a pause of several
seconds. [Complaint ¶¶ 13, 20]. This is adequate to
plead the use of an ATDS.
Plaintiff's Complaint Remains Sufficient Even After
ACA Int'l v. Federal Commc'ns
contests that a mere pause only suggests the use of a
predictive dialer-a device that automatically dials stored
customer phone numbers. It argues that, as a matter of law,
these devices no longer qualify as an ATDS following the D.C.
Circuit's recent decision in ACA Int'l v. Federal
Commc'ns Comm'n, 885 F.3d 687 (D.C. Cir. 2018),
which invalidated a 2015 FCC Order regarding the scope of the
D.C. Circuit's decision was a consolidated appeal from
the D.C. and Seventh Circuits and is binding on the Court
because when petitions to review an FCC decision filed in
multiple circuits are consolidated and assigned to a specific
court of appeals, the decision is binding in all circuits.
Sandusky Wellness Ctr., LLC v. ASD Specialty Healthcare,
Inc., 863 F.3d 460, 467 (6th Cir. 2017).
The Impact of ACA Int'l v. Federal ...