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Adams v. Safe Home Security Inc.

United States District Court, N.D. Texas, Dallas Division

July 30, 2019

MARY KATHLEEN ADAMS, Plaintiff,
v.
SAFE HOME SECURITY INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          BARBARA M. G. LYNN CHIEF JUDGE

         Before 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.

         I. Factual and Procedural Background

         Plaintiff 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].

         II. Legal Standard

         A 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).

         III. Analysis

         a. Plaintiff Has Sufficiently Pleaded a Violation of the TCPA

         Section 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).

         The 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.

         b. Plaintiff's Complaint Remains Sufficient Even After ACA Int'l v. Federal Commc'ns Comm'n

         Defendant 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 TCPA.

         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).

         i. The Impact of ACA Int'l v. Federal ...


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