Perry v. Pinnacle Recovery, Inc.

Filing 24

ORDER granting 17 motion to dismiss. Signed by Judge Roy B. Dalton, Jr. on 8/19/2015. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
LINDA PERRY,
Plaintiff,
v.

Case No. 6:15-cv-875-Orl-37TBS

PINNACLE RECOVERY, INC.,
Defendant.
ORDER
This cause is before the Court on Defendant’s Motion to Dismiss Plaintiff’s Claim
Under the Telephone Consumer Protection Act (Second Claim for Relief) for Debt
Collection Calls Made to Plaintiff’s Residence (Doc. 17), filed July 15, 2015. Plaintiff had
until August 3, 2015, to respond. See Local Rule 3.01(b) (allotting fourteen days to
respond); Fed. R. Civ. P. 6(d) (allotting an additional three days to respond). The August 3
deadline has passed, and Plaintiff has not filed a response in opposition to Defendant’s
Motion. Upon consideration, the Court considers Defendant’s Motion to be unopposed
(see Local Rule 3.01(b)) and finds that it is due to be granted. 1
Plaintiff brings this action to recover for alleged violations of, inter alia, the
Telephone Consumer Protection Act (“TCPA”), which are premised on Defendant’s use

1

On July 22, 2015, Plaintiff’s counsel notified the Court that he was separating
from his law firm and “may or may not remain [Plaintiff’s] attorney.” (Doc. 21, p. 1.) He
requested that the Court not set any hearings, including one for the Motion to Dismiss,
“until the issue of Plaintiff’s representation can be resolved.” (Id. at 2.) The Court denied
the request in accordance with Local Rule 2.03(b), but Plaintiff still has not filed a
response to the pending Motion. Although the Court could dispose of the Motion on purely
procedural grounds, it will reach the merits to avoid any assertion of prejudice to Plaintiff
for her counsel’s alleged unavailability and lack of response (see Doc. 21).

of an automatic telephone dialing system and prerecorded voice when calling Plaintiff's
cell phone (Doc. 6, ¶¶ 45-46 (alleging a violation of 47 U.S.C. § 227(b)(1)(A)(iii))), as well
as

when

calling

her

residential phone

(id.

¶

47

(alleging

a

violation

of

47 U.S.C. § 227(b)(1)(B)). Defendant moves to dismiss the TCPA claim only “to the extent
it seeks relief under the TCPA for debt collection telephone calls made to Plaintiff's
residence.” (Doc. 17, p. 4.) The Motion is well-taken.
Section 227(b)(1)(B) states that it is unlawful to initiate a call to a residential line
using an artificial or prerecorded voice “unless the call is exempted by rule or order by the
[Federal Communications] Commission [“FCC”].” Pursuant to 47 C.F.R. § 64.1200, the
FCC exempts calls “made for a commercial purpose but does not include or introduce an
advertisement or constitute telemarketing” from the TCPA’s statutory prohibition against
prerecorded calls. The FCC maintains that debt-collection calls fall under the “commercial
calls” exception. See In re: Rules & Regulations Implementing the Tel. Consumer Prot.
Act of 1991, 7 FCC Rcd. 8752, 8773, ¶ 39 (October 16, 1992). Accordingly, “prerecorded
debt-collection calls are exempt from the TCPA’s prohibitions on [automated or
prerecorded] calls to residences.”

Meadows v. Franklin Collection Serv., Inc.,

414 F. App'x 230, 235 (11th Cir. 2011); see also Gager v. Dell Fin. Servs., LLC, 727 F.3d
265, 274 (3d Cir. 2013) (acknowledging that there is an exemption for debt-collection calls
made to residential lines, but not to cell phones); Ashley v. Gen. Elec. Capital Corp.,
No. 2:13-cv-353-FtM-29UAM, 2013 WL 6133562, at *3 (M.D. Fla. Nov. 21, 2013) (same);
Hoover v. Monarch Recovery Mgmt., Inc., 888 F. Supp. 2d 589, 604 (E. D. Pa. 2012)
(same).

2

Plaintiff specifically alleges that Defendant made the violative calls to Plaintiff’s
residence for debt collection purposes. (Doc. 6, ¶¶ 20, 27, 35–37.) Thus, they are exempt
from the TCPA. See Meadows, 414 F. App’x at 235; see also Dayhoff v. Wells Fargo
Home Mortg., Inc., No. 6:13-cv-1132-Orl-37KRS, 2013 WL 6283583, at *2 (M.D. Fla.
Dec. 4, 2013).
Accordingly, it is hereby ORDERED AND ADJUDGED:
1.

Defendant’s Motion to Dismiss Plaintiff’s Claim Under the Telephone
Consumer Protection Act (Second Claim for Relief) for Debt Collection Calls
Made to Plaintiff’s Residence (Doc. 17) is GRANTED.

2.

Count Two (Doc. 6, ¶¶ 44–52) is DISMISSED WITHOUT PREJUDICE to
the extent that it seeks relief under the TCPA for debt collection calls made
to Plaintiff’s residence.

DONE AND ORDERED in Chambers in Orlando, Florida, on August 19, 2015.

Copies:
Counsel of Record

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