United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
REBECCA RUTHERFORD UNITED STATES MAGISTRATE JUDGE.
the Court is Defendant Quicken Loans, Inc.'s Rule
12(b)(6) Motion to Dismiss Plaintiffs Complaint. Mot. (ECF
No. 8). For the reasons stated below, the District Court
should GRANT Defendant's motion.
Jeremy Reed filed his lawsuit against Defendant Quicken
Loans, Inc. on November 28, 2018, in state court. Compl. 1
(ECF No. 1-4). Defendant removed Plaintiffs action to federal
court on December 21, 2018. Notice (ECF No. 1). Plaintiff
alleges that he registered his cell phone number with the
Federal Trade Commission's National Do Not Call Registry
(NDNCR) on December 29, 2011. Compl. 4. Even so, Plaintiff
asserts that Defendant sent unsolicited text messages, phone
calls, and voicemails to Plaintiffs personal cell phone to
market real estate services. Id. Plaintiff contends
he did not expressly invite, permit, or consent to
Defendant's text-message communications. Id.
Specifically, he alleges Defendant sent him a text message on
July 25, 2018, two on July 31, 2018, and one on August 9, 14,
and September 13, 2018. Id. 4-5. Plaintiff also
alleges that Defendant called him and left voicemails on July
25, 26, 27, 28, 30, 31, and August 1 and 2, 2018.
Id. In total, Plaintiff maintains he received six
unsolicited text messages and eight unsolicited phone calls
with voicemail messages from Defendant. Id. 5.
Defendant's text messages indicated Plaintiff could opt
out of future messages; Plaintiff replied "STOP" to
Defendant's second text message sent on July 31, 2018,
and its text message sent on August 9, 2018. Id.
asserts Defendant's communications violated the Telephone
Consumer Protection Act (TCPA). Defendant moves to dismiss
Plaintiffs Complaint for failure to state a claim. Mot. The
Motion is fully briefed and ripe for determination.
Standards and Analysis
deciding a 12(b)(6) motion for failure to state a claim, the
court "accepts all well-pleaded facts as true, viewing
them in the light most favorable to the plaintiff."
In re Katrina Canal Breaches Litig., 495 F.3d 191,
205 (5th Cir. 2007) (quotation marks and citation omitted).
To survive Defendant's Motion to Dismiss, therefore,
Plaintiffs Complaint must contain sufficient factual matter
to state a claim for relief that is plausible on its face.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). "To be plausible, the complaint's
'[f]actual allegations must be enough to raise a right to
relief above the speculative level.'" In re
Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 210
(5th Cir. 2010) (quoting Twombly, 550 U.S. at 555).
This pleading standard does not require "'detailed
factual allegations, '" but it does demand more than
an unadorned accusation devoid of factual support.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 555). "A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw a reasonable inference that the
defendant is liable for the misconduct alleged."
Id. at 678 (citing Twombly, 550 U.S. at
556). "[A] formulaic recitation of the elements of a
cause of action will not do." Twombly, 550 U.S.
at 555 (citing Papasan v. Allain, 478 U.S. 265, 286
(1986)). "While legal conclusions can provide the
framework of a complaint, they must be supported by factual
allegations." Iqbal, 556 U.S. at 679. Where the
facts do not permit the Court to infer more than the mere
possibility of misconduct, the Complaint has stopped short of
showing that Plaintiff is plausibly entitled to relief.
Id. at 678 (citing Twombly, 550 U.S. at
deciding a Rule 12(b)(6) motion, a court may not look beyond
the pleadings. Spivey v. Robertson, 197 F.3d 772,
774 (5th Cir. 1999). However, the pleadings, for the purpose
of determining a Rule 12(b)(6) motion, include documents
attached to the pleadings and to the motion to dismiss so
long as they "are referred to in the plaintiffs
complaint and are central to [his] claim." Causey v.
Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th
Cir. 2004) (citing Collins v. Morgan Stanley Dean
Witter, 224 F.3d 496, 498-99 (5th Cir. 2000)).
brings a claim against Defendant under 47 U.S.C. §
227(b)(3)(B), which provides for a private right of action
under the Telephone Consumer Protection Act. The TCPA
within the United States, or... outside the United States if
the recipient is within the United States- . . . [from]
mak[ing] 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 paging service, cellular telephone service,
specialized mobile radio service, or other radio common
carrier service, or any service for which the called party is
charged for the call, unless such call is made solely to
collect a debt owed to or guaranteed by the United States.
47 U.S.C. § 227(b)(i)(A)(iii). Thus, "[a] [TCPA]
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.'" Adams v. Safe Home Sec.
Inc., 2019 WL 3428776, at *1 (N.D. Tex. July 30, 2019)
(Lynn, C.J.) (quoting Meyer v. Portfolio Recovery
Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir. 2012)). An
"automatic telephone dialing system" (ATDS) is
defined as "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)(1). "A text message to a
cellular telephone, it is undisputed, qualifies as a
'call' within the compass of §
227(b)(i)(A)(iii)." Campbell-Ewald Co. v.
Gomez, 136 S.Ct. 663, 667 (2016).
moves to dismiss Plaintiffs Complaint "because the
Complaint nowhere alleges that he was called or texted using
an ATDS." Def.'s Br. Support 3 (ECF No. 9).
"Simply alleging the use of an ATDS, without more, is
insufficient to sustain a TCPA claim." Cunningham v.
Nationwide Sec. Sols., Inc., 2017 WL 10486988, at *3
(N.D. Tex. Nov. 2, 2017) (Lynn, C.J.) (citing Cunningham
v. TechStorm, LLC, 2017 WL 721079, at *3 (N.D. Tex. Feb.
23, 2017) (Lynn, C.J.)). Nonetheless, "'[c]ourts
have noted the difficulty a plaintiff faces in knowing the
type of calling system used without the benefit of
discovery," and have found allegations of calls
including "dead-air time" sufficient to allege the
use of an ATDS. Adams, 2019 WL 3428776, at *i
(quoting Hickey v. Voxernet LLC, 887 F.Supp.2d 1125,
1129 (W.D. Wash. 2012); TechStorm, LLC, 2017 WL
721079, at *3) (finding plaintiffs allegation "that each
of the phone calls she received began with a pause of several
seconds" sufficient to plead the use of an ATDS). In his
Complaint, Plaintiff alleges that Defendant "violated
the Act through its barrage of calls ... [and] numerous
automated text messages to Plaintiffs private cell phone . .
. after being expressly instructed in writing to cease all
such communications." Compl. 6. Though Plaintiff avers
the text messages were "automated" he does not
plead that the text messages or phone calls were "placed
with an ATDS that randomly or sequentially generated his
number," nor does he assert that the phone calls
included "dead-air time" indicative of use of an
includes additional factual allegations describing the nature
of the calls and text messages in his Response. See
Pl.'s Resp. 5-6 (ECF No. 10). "Generally, if the
Court is presented with matters outside the pleadings in
deciding a 12(b)(6) motion and does not exclude them, the
motion must be treated as one for summary judgment."
TechStorm, 2017 WL 721079, at *2 (citing
Fed.R.Civ.P. 12(d)). "'Otherwise, a court must limit
itself to the contents of the pleadings, including
attachments thereto.'" Id. (quoting
Tornado BUS Co. v. BUS & Coach Am. Corp., 2015
WL 11120584, at *1 (Dec. 15, 2015) (Lynn, J.)). Because the
Court has not given notice that it would consider facts
outside the pleadings, it will only consider factual
allegations in the pleadings. See Id. ...