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Reed v. Quicken Loans, Inc.

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

September 3, 2019

JEREMY REED, Plaintiff,
v.
QUICKEN LOANS, INC., Defendant.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          REBECCA RUTHERFORD UNITED STATES MAGISTRATE JUDGE.

         Before 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.

         Background

         Plaintiff 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.

         Plaintiff 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.

         Legal Standards and Analysis

         When 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 557).

         In 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)).

         TCPA

         Plaintiff 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 prohibits persons:

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).

         Defendant 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 ATDS.

         Plaintiff 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. ...


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