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Hill v. USAA Savings Bank

United States District Court, W.D. Oklahoma

July 15, 2019

MACHELLE HILL, Plaintiff,
v.
USAA SAVINGS BANK, Defendant.

          ORDER

          SCOTT L. PALK, UNITED STATES DISTRICT JUDGE

         Before 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].[1] Both parties have also filed Notices of Supplemental Authority [Doc. Nos. 18-23]. For the reasons set forth, Defendant's Motion is denied.

         I. Introduction

         Plaintiff 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.

         II. Factual Background

         The 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).

         Defendant 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.

         On or 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.

         III. Governing Standard

         To 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 (2009).

         To 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).

         IV. Discussion

         The 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).

         To 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 ...


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