Polly Want Statutory Damages?: Court Confirms Parroting the Language of the TCPA Won’t Get You Far

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In Montinola v. Synchrony Bank, Civil Action No. 17-8963, 2018 U.S. Dist. LEXIS 146716 (D.N.J. Aug. 28, 2018), the District of New Jersey granted defendant’s Rule 12(b)(6) motion to dismiss based on Plaintiff’s failure to plausibly plead that defendant used an ATDS to call Plaintiff.

Plaintiff had alleged that starting in July 2017, defendant called her about a credit card account at least 133 times within a short period of time.  Id. at *2.  According to plaintiff, defendant called her on “consecutive days, at least twice per day, including mornings night and weekends.”  Id. at *1.  She also claimed that she believed defendant used an ATDS to place each of these calls  “based on the frequency, number, nature and character of [the] calls.”  Id. at *2.

Notably, without reaching the post ACA Int’l issues over ATDS functionality, the court found plaintiff’s allegations were not sufficient to plead the element of ATDS use.  The court stated that Plaintiff must “do more than simply parrot the statutory language.”  Id. at *4.  Although Plaintiff did not need to “provide precise details as to each of the telephone calls, she must provide enough information to put Defendant on notice of the allegedly offending messages.” Id. at **4-5.  And at the very least, Plaintiff must “describe in laymen’s terms,” some fact about the calls or the circumstances surrounding them that would show ATDS use was plausible.  Id. at *5.

This isn’t earth-shattering news.  As we have reported before threadbare recitals of ATDS usage at the pleadings stage are categorically improper.  In fact, the court’s ruling here is consistent with several other cases across multiple other jurisdictions holding that these sorts of conclusory allegations aren’t enough to plausibly allege ATDS use.  See, e.g., Mesa v American Express Educational Assur. Co. (SD Fla, May 18, 2017, No. 16–CV-24447–HUCK) 2017 US Dist Lexis 75764 (bare bones recital allegations of ATDS use not enough); Reo v Caribbean Cruise Line, Inc. (ND Ohio, Mar. 18, 2016, No 1:14 CV 1374) 2016 WL 1109042, *4 (noting that “majority” of cases now require “additional factual allegations, no matter how minor, in addition to parroting the language of the statute”).  But what it does show is that – regardless of the court’s view on the impact of ACA Int’l – there is at least some minimum threshold a plaintiff must pass in order to plead a claim for violation of the TCPA.


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