United States District Court, W.D. Oklahoma
L. PALK, UNITED STATES DISTRICT JUDGE
the Court is Defendant USAA Savings Bank's Motion to
Dismiss [Doc. No. 11]. Plaintiff has responded [Doc. No. 12]
and Defendant has replied [Doc. No. 13]. Both parties have
also filed Notices of Supplemental Authority [Doc. Nos.
18-23]. For the reasons set forth, Defendant's Motion is
brings this action alleging violations of the Telephone
Consumer Protection Act, 47 U.S.C. § 227 et seq. (TCPA).
Plaintiff's claims are premised on certain calls
Defendant placed to Plaintiff's cell phone for debt
collection purposes. Defendant moves for dismissal of the
action on the basis that Plaintiff has failed to allege
Defendant placed the calls with an automated telephone
dialing system as required to state a violation of the TCPA.
following factual allegations of the First Amended Complaint
[Doc. No. 9] are taken as true for purposes of analysis under
Rule 12(b)(6) of the Federal Rules of Civil Procedure.
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
placed collections calls to Plaintiff on her cell phone to
collect on alleged debts incurred through purchases made on
credit issued by Defendant. First Am. Compl., ¶¶
8-10. Per its prior business practices, Defendant's calls
were placed with an automatic telephone dialing system.
Id., ¶ 11. Defendant placed the calls with
equipment that has the capacity to store or produce phone
numbers using a random or sequential number generator and has
the ability to call those numbers. Id., ¶ 12.
Sophisticated debt collectors, like Defendant, require
“sophisticated phone systems that are capable of
storing large amounts of phone numbers and data regarding
each phone number, assuring that their employee debt
collection agents are being fully utilized, managing the
large numbers of debt collection calls made during each day,
and keeping track of each call as well as the performance and
outcome of each call for future collection purposes.”
Id., ¶ 13.
about December 19, 2017, Plaintiff spoke with a
representative of Defendant, provided the representative her
social security number, and requested that Defendant stop
calling her cell phone, thus revoking any consent to
placement of the calls. Id., ¶¶ 17-19.
Nonetheless, on December 20, 2017, Defendant placed two more
collection calls to Plaintiff. Id., ¶ 20.
Defendant then continued to place collection calls via auto
dialer to Plaintiff's cell phone up to seven times a day,
and up to six days a week through April 2018. Id.,
¶ 21. The calls were placed at various times of the day.
Id., ¶ 22. Plaintiff did not pick up
Defendant's calls to her cell phone and Defendant did not
leave any voicemails. Plaintiff observed that the calls would
“systematically terminate” once they would be
directed to voicemail. Id., ¶¶ 23-24.
Defendant placed at least 119 automated calls to
Plaintiff's cell phone. Id., ¶ 25.
survive a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, a plaintiff must plead
sufficient factual allegations “to state a claim to
relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is
facially plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that they defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
evaluate the sufficiency of the allegations of the complaint
under the “Twombly/Iqbal pleading
standard” the court undertakes a “two-prong
approach.” Alpenglow Botanicals, LLC v. United
States, 894 F.3d 1187, 1195 (10th Cir. 2018) (citation
omitted). Under the first prong, the court determines which
allegations are not entitled to the assumption of truth and
includes “legal conclusions” and
“threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements.”
Id. (citation omitted). The second prong requires
the court to assume the truth of the well-pleaded factual
allegations and determine whether they state a plausible
claim for relief. Id. (citation omitted).
TCPA prohibits “any person within the United
States” from “mak[ing] any call (other than a
call for emergency purposes or made with the prior express
consent of the called party) using any automatic telephone
dialing system . . . to any telephone number assigned to a .
. . cellular telephone service.” 47 U.S.C. §
227(b)(1). The statute defines “automatic telephone
dialing system” (ATDS) 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.” Id., § 227(a)(1).
state a claim under the TCPA, Plaintiff must allege that: (1)
a call was made; (2) the caller used an ATDS or artificial or
prerecorded voice; (3) the telephone number called was
assigned to a cellular telephone service; and (4) the caller
did not have prior express consent of the recipient. See,
e.g., Hanley v. Green Tree Servicing, LLC, 934 F.Supp.2d
977, 982 (N.D. Ill. 2013) (citing 47 U.S.C. §
227(b)(1)(A)(iii); see also Rallo ...