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Asher v. Quicken Loans Inc.

United States District Court, D. Utah

January 8, 2019

R. FLOYD ASHER, Plaintiff,
v.
QUICKEN LOANS, INC., Defendant.

          MEMORANDUM DECISION AND ORDER GRANTING MOTION TO DISMISS

          Jill N. Parrish District Judge

         Before the court is defendant's Motion to Dismiss the First Amended Complaint. (ECF No. 21). For the reasons below, the motion is granted. The court will, however, grant plaintiff leave to amend to address the deficiencies identified herein.

         I. BACKGROUND

         Plaintiff R. Floyd Asher filed the operative first amended complaint on April 18, 2018, alleging violations of the Telephone Consumer Protection Act (the “TCPA”). Defendant Quicken Loans, Inc. (“Quicken Loans”) filed this Motion to Dismiss on May 2, 2018. (ECF No. 21). Mr. Asher filed an opposition on May 30, 2018, (ECF No. 22), to which Quicken replied on June 13, 2018, (ECF No. 25).

         II. MOTION TO DISMISS STANDARD

         Under Rule 12(b)(6), a defendant may move to dismiss a claim when the plaintiff fails to state a claim upon which relief can be granted. The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties may present at trial but to “assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (quoting Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991)).

         “A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff.” Hall v. Bellmon, 935 F.2d 1106, 1108 (10th Cir. 1991) (citing Scheuer v. Rhodes, 416 U.S. 232 (1974)). “To survive a motion to dismiss, 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 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff has alleged facts that allow “the court to draw [a] reasonable inference that the defendant is liable for the misconduct alleged.” Id.

         III. ANALYSIS

         The TCPA prohibits the use of an automatic telephone dialing system (“ATDS”) or a prerecorded voice to place calls to a cellular phone number without the called party's prior express consent. 47 U.S.C. § 227(b)(1)(A)(iii). To state a cause of action under the TCPA, a plaintiff must allege (1) that the defendant called the plaintiff's cellular telephone (2) using an ATDS or an artificial or prerecorded voice (3) without the plaintiff's prior express consent. See Douek v. Bank of Am. Corp., No. CV 17-2313, 2017 WL 4882492, at *2 (D.N.J. Oct. 30, 2017).

         Quicken Loans seeks dismissal on two grounds. First, it argues that the amended complaint does not contain sufficient facts to provide the minimal notice required by Rule 8 of the Federal Rules of Civil Procedure. Second, it argues that the amended complaint fails to adequately allege the use of an ATDS. The court addresses each argument below.

         A. Failure to Provide Adequate Notice

         Quicken Loans first argues that Mr. Asher does not provide adequate notice by failing to “plead the phone number at which he allegedly received the calls, the phone number from which the calls originated, when the calls occurred, the identity of the callers, or what was said during the alleged calls.” Quicken Loans contends, and the court agrees, that without this information, the amended complaint fails to provide the minimal notice required by Rule 8 of the Federal Rules of Civil Procedure. Under Rule 8, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” The purpose of this rule is to provide sufficient notice to permit a defendant to investigate the allegations and ascertain available defenses. The complaint here contains no information from which Quicken Loans can even begin to conduct a factual investigation. Moreover, given that each violation of the TCPA entitles a plaintiff to statutory damages of $500, a complaint without even a preliminary indication of the number of such calls does not provide a defendant with adequate notice of the liability it faces.

         Mr. Asher requests leave to amend his complaint to add these facts. Under Rule 15, “[t]he court should freely give leave when justice so requires.” Fed.R.Civ.P. 15. Quicken Loans has not argued, and the court does not find, that amendment here would be futile. Accordingly, Mr. Asher will be granted leave to include the facts identified above. And as explained below, the remaining elements of Mr. Asher's TCPA claim are adequately pleaded. Thus, if he remedies the factual deficiencies noted above he will have stated a claim under the TCPA.[1]

         B. ATDS ...


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