United States District Court, W.D. Texas, Austin Division
PITMAN UNITED STATES DISTRICT JUDGE.
the Court are Plaintiff Gloria Salas's
(“Salas”) Opposed Motion for Leave to File a
Second Amended Complaint, (Dkt. 25), and Ford Motor Credit
Company, LLC's (“Ford”) response, (Dkt. 26).
Having considered the parties' briefs, the evidence, and
the relevant law, the Court finds that the motion should be
a debt collection case involving an undisputed debt owed by
Salas to Ford. (Compl., Dkt. 1, at 1). Salas entered into an
agreement with Ford to finance the purchase of a car.
(Id. at 2). When Salas failed to make payments on
the loan, she began to receive regular phone calls from Ford.
(Id.) Salas alleges she received at least 125 phone
calls in less than two years and that these phone calls
continued even after she requested Ford stop calling her.
(Id. at 3). According to Salas, these calls would
begin with “a recorded message and noticeable pause,
lasting several seconds in length” before a live
representative would begin to speak. (Id.). In its
answer, Ford states that Salas consented to receive cell
phone calls from Ford in her loan contract, including calls
by “prerecorded or artificial voice messages . . .
and/or automatic telephone dialing systems.” (Answer,
Dkt. 6, at 56). While Ford acknowledges that it did receive a
request from Salas to stop calling her on August 16, 2018, it
maintains that it honored this request and made no further
calls to Salas's cell phone after that date. (Resp., Dkt.
26, at 4). Meanwhile, Salas contends she asked Ford to stop
calling her as early as January 2018 and made at least two
additional demands for the calls to cease. (Am. Compl., Dkt.
25-2, at 3).
originally sued Ford for violations of the Telephone Consumer
Protection Act (“TCPA”) and the Texas Deceptive
Trade Practices Act (“DTPA”). (Compl., Dkt. 1, at
1). Salas now seeks leave to amend her original complaint to
remove her claim under the DTPA and to add a claim under the
Texas Debt Collection Act, Tex. Fin. Code § 392.302(4),
(“TDCA”). (Mot. Leave, Dkt. 25, at 2). Ford
opposes Salas's motion for leave to file the amended
complaint, contending such an amendment would be futile and
would not survive a 12(b)(6) motion to dismiss. (Resp, Dkt.
26, at 4).
Federal Rules of Civil Procedure permit a party to amend its
pleading “once as a matter of course, ” but
afterwards “only with the opposing party's written
consent or the court's leave.” Fed.R.Civ.P.
15(a)(1)-(2). “The court should freely give leave when
justice so requires.” Fed.R.Civ.P. 15(a)(2). Rule 15(a)
“requires the trial court to grant leave to amend
freely, and the language of this rule evinces a bias in favor
of granting leave to amend.” Lyn-Lea Travel Corp.
v. Am. Airlines, 283 F.3d 282, 286 (5th Cir. 2002). But
leave to amend “is by no means automatic.”
Davis v. United States, 961 F.2d 53, 57 (5th Cir.
1991). A district court may deny leave to amend if it has a
“substantial reason” to do so. Lyn-Lea Travel
Corp., 283 F.3d at 286. The futility of amendment is one
such substantial reason to deny leave to amend. Stripling
v. Jordan Prod. Co., LLC, 234 F.3d 863, 872-73 (5th Cir.
2000). A proposed amendment is futile if it fails to state a
claim upon which relief could be granted. Id. at
873. Therefore, in determining futility, this Court will
apply the “the same standard of legal sufficiency as
applies under Rule 12(b)(6).” Id.
to Rule 12(b)(6), a court may dismiss a complaint for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). In deciding a 12(b)(6)
motion, a “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) (quoting
Martin K. Eby Constr. Co. v. Dall. Area Rapid
Transit, 369 F.3d 464, 467 (5th Cir. 2004)). “To
survive a Rule 12(b)(6) motion to dismiss, a complaint
‘does not need detailed factual allegations,' but
must provide the plaintiff's grounds for entitlement to
relief-including factual allegations that when assumed to be
true ‘raise a right to relief above the speculative
level.'” Cuvillier v. Taylor, 503 F.3d
397, 401 (5th Cir. 2007) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). That is, “a
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. “The tenet that
a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions.
Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not
determine whether Salas's proposed amendment would be
futile, the Court must decide whether Salas has sufficiently
pleaded a TDCA violation. Ford argues Salas's amendment
would be futile because Salas has not plausibly alleged that
its calls were made with the intent to harass. (Resp., Dkt.
26, at 4). Under the TDCA, “a debt collector may not
oppress, harass, or abuse a person by . . . causing a
telephone to ring repeatedly or continuously, or making
repeated or continuous telephone calls, with the intent to
harass a person at the called number.” Tex. Fin. Code
§ 392.302(4). In finding that a debt collector has acted
“with the intent to harass, ” call volume alone
is insufficient. See Robinson v. Wells Fargo Bank,
N.A., 576 Fed.Appx. 358, 362 (5th Cir. 2014). The Fifth
Circuit has required “both a great volume of phone
calls and extenuating circumstances, such as making those
calls at odd hours or threatening personal violence.”
Salas has not alleged sufficient facts to support a claim
that Ford acted with “the intent to harass” and
has therefore failed to state a claim for relief under the
TDCA. Tex. Fin. Code § 392.302(4). Salas alleges only
that Ford called her “continuously” and that she
received “not less than 125 phone calls” after
she demanded Ford stop calling her. (Am. Compl., Dkt. 25-2,
at 3, 5). Although Salas alleges that the “frequency
and volume of calls” shows Ford acted “with the
intent of annoying and harassing her, ” (id.
at 5), facts pertaining to call volume must be accompanied by
“extenuating circumstances, such as making those calls
at odd hours or threatening personal violence” to show
Ford acted with the requisite intent to harass.
Robinson, 576 Fed.Appx. at 362. Salas has not
pleaded any facts to show Ford made calls at odd hours or
that any of these calls threatened personal violence. Merely
asserting that Ford acted “with the intent of annoying
and harassing her” absent such facts is not enough.
Iqbal, 556 U.S. at 678 (“Threadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”). Because Salas
has failed to sufficiently plead a TDCA violation in her
proposed amendment, granting Salas leave to amend her
original complaint to add such a claim would be futile.
reasons given above, IT IS ORDERED that
Salas's motion for leave to amend her ...