Wallack v. Mercantile Adjustments Bureau, Inc

Filing 9

OPINION and ORDER granting Defendant's 3 Motion to Dismiss and Granting Leave for Plaintiff to Amend His Complaint. Signed by District Judge Gerald E. Rosen. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
STEVEN WALLACK,
Plaintiff,
Case No. 14-10387
Hon. Gerald E. Rosen

v.
MERCANTILE ADJUSTMENTS
BUREAU, INC.,
Defendant.
______________________________________/

OPINION AND ORDER GRANTING
DEFENDANT’S MOTION TO DISMISS AND
GRANTING LEAVE FOR PLAINTIFF TO AMEND HIS COMPLAINT
At a session of said Court, held in
the U.S. Courthouse, Detroit, Michigan
on
April 18, 2014
PRESENT: Honorable Gerald E. Rosen
Chief Judge, United States District Court
I. INTRODUCTION
Plaintiff Steven Wallack commenced this action in a Michigan small claims court
on December 18, 2013, alleging in a pro se form affidavit and claim that Defendant
Mercantile Adjustments Bureau, Inc. violated the federal Telephone Consumer Protection
Act (“TCPA”), 47 U.S.C. § 227, by making “[h]ar[]assing calls” to his cellular phone.
Defendant removed the case to this Court on January 27, 2014, citing Plaintiff’s assertion
of a claim arising under federal law. See 28 U.S.C. §§ 1331, 1441(a).
In lieu of answering Plaintiff’s complaint, Defendant has filed a February 3, 2014

motion to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim or,
alternatively, for a more definite statement pursuant to Fed. R. Civ. P. 12(e). By order
dated February 3, 2014, Plaintiff was directed to file a response to Defendant’s motion on
or before March 7, 2014, but he has failed to do so. Accordingly, the Court will now
proceed to decide this pending motion.
Under Local Rule 7.1(f)(2) of this District, the Court may elect to dispense with
oral argument before ruling on a dispositive motion, and the Court concludes under the
circumstances that a hearing on Defendant’s motion is not warranted. For the reasons
stated below, the Court finds that Defendant’s request for dismissal should be granted, but
that Plaintiff should be given a limited 21-day opportunity to file an amended complaint
that cures the deficiencies in his initial pleading.
II. ANALYSIS
A.

The Standards Governing Defendant’s Motion
Through the present motion, Defendant primarily seeks the dismissal of Plaintiff’s

complaint under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can
be granted.1 When considering a motion brought under Rule 12(b)(6), the Court must
construe the complaint in a light most favorable to the plaintiff and accept all well-pled
factual allegations as true. League of United Latin American Citizens v. Bredesen, 500

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As noted earlier, Defendant moves in the alternative for a more definite statement pursuant
to Fed. R. Civ. P. 12(e). The Court need not reach this issue, in light of its ruling on the portion of
Defendant’s motion brought under Rule 12(b)(6).

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F.3d 523, 527 (6th Cir. 2007). Yet, “the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009).
Moreover, “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, a plaintiff’s obligation to provide the grounds
of his entitlement to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65 (2007) (internal quotation marks,
alteration, and citations omitted). Rather, to withstand a motion to dismiss, the
complaint’s factual allegations, accepted as true, “must be enough to raise a right to relief
above the speculative level,” and to “state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 555, 570, 127 S. Ct. at 1965, 1974. “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678,
129 S. Ct. at 1949.
B.

Plaintiff’s Form Complaint Lacks Sufficient Factual Allegations to Enable
Defendant to Meaningfully Respond to Plaintiff’s Claim of a Violation of the
TCPA.
As noted earlier, Plaintiff commenced this suit by filing a pro se “affidavit and

claim” form with a Michigan small claims court. Characteristically, this form does not
provide much insight as to the factual basis for Plaintiff’s TCPA claim; instead, Plaintiff
simply accuses Defendant of making “[h]ar[]assing calls to my cellular phone in violation
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of the TCPA.” (Aff. and Claim at ¶ 9.) In seeking the dismissal of this TCPA claim,
Defendant argues that Plaintiff has failed to meet the standards of Twombly and Iqbal by
pleading sufficient factual content to permit the reasonable inference that Defendant acted
in violation of the TCPA. The Court agrees.
Through his reference to harassing calls to his cellular phone, Plaintiff presumably
means to appeal to the TCPA provision that prohibits non-emergency calls to a cellular
phone without the consent of the recipient “using any automatic telephone dialing system
or an artificial or prerecorded voice.” 47 U.S.C. § 227(b)(1)(A); see also Mims v. Arrow
Financial Services, LLC, __ U.S. __, 132 S. Ct. 740, 745 (2012) (identifying this as one
of the four practices outlawed by the TCPA). Thus, to state a claim under this provision,
Plaintiff necessarily “must allege that: (1) a call was made; (2) the caller used an
[automatic telephone dialing system] 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.” Hanley v. Green Tree Servicing, LLC, 934 F.
Supp.2d 977, 982 (N.D. Ill. 2013). As the courts have recognized, to satisfy the
Twombly/Iqbal standard with respect to such a TCPA claim, a plaintiff must plead such
facts as (i) the number of allegedly unlawful calls received, (ii) the approximate dates and
times of these calls, and (iii) circumstances that would support the inference that these
calls were placed with a automatic telephone dialing system or an artificial or prerecorded
voice. See, e.g., Hanley, 934 F. Supp.2d at 983-84 (finding that a complaint was subject
to dismissal where the plaintiff failed to “plead how many calls [the defendant] allegedly
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made to him in violation of the [TCPA]” or “when the allegedly offending calls were
made”); Duran v. Wells Fargo Bank, N.A., 878 F. Supp.2d 1312, 1316 (S.D. Fla. 2012)
(dismissing the plaintiff’s TCPA claim where he “allege[d] in a conclusory manner that
Defendant placed ‘many’ non-emergency calls to his cellular phone” but pled “no facts
whatsoever about any automated or pre-recorded calls Defendant allegedly made”);
Johansen v. Vivant, Inc., No. 12-7159, 2012 WL 6590551, at *3 (N.D. Ill. Dec. 18, 2012)
(opining that “[i]t is not unreasonable . . .to require a plaintiff to describe the phone
messages he received in laymen’s terms or provide the circumstances surrounding them
to establish his belief that the messages were pre-recorded or delivered via” an automated
dialing system); cf. Aronson v. Generation Mortgage Co., No. 13-1702, 2014 WL
641622, at *1 (W.D. Pa. Feb. 19, 2014) (holding that the plaintiff had pled a viable TCPA
claim where he “provided sufficient details of the date, time and place . . . of the
offending call in support of his claim”).
The complaint here includes no such allegations that, if proven, would establish
Plaintiff’s entitlement to relief under the TCPA. As stated above, Plaintiff alleges only
that Defendant made “[h]ar[]assing calls to my cellular phone in violation of the TCPA.”
This assertion lacks any supporting details as to the number of calls made to Plaintiff’s
cell phone, the dates they were placed, or the basis for believing that the calls originated
from Defendant. Moreover, the mere placement of calls to a cellular phone without the
recipient’s consent, standing alone, does not violate the TCPA provision implicated by
Plaintiff’s complaint; rather, a plaintiff must allege that the calls were made “using any
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automatic telephone dialing system or an artificial or prerecorded voice.” 47 U.S.C. §
227(b)(1)(A). Again, Plaintiff’s complaint lacks any factual allegations that would
support a finding in his favor as to this element of his TCPA claim.
To be sure, Plaintiff has been proceeding pro se,2 and the form he used to
commence this action in a Michigan small claims court does not lend itself to a wealth of
supporting detail. Yet, while this may excuse Plaintiff’s initial bare-bones pleading of a
claim under the TCPA, matters have now changed in light of Defendant’s filing of a
motion to dismiss or, in the alternative, for a more definite statement. In response to this
motion, Plaintiff readily could have identified the more detailed factual allegations that
were lacking from his initial complaint, and could have sought leave to amend his
complaint to incorporate these additional facts. Instead, however, Plaintiff has failed to
respond in any way to Defendant’s motion, despite the Court’s February 3, 2014 order
expressly instructing him to do so. Under these circumstances, it is clear that Plaintiff’s
complaint is subject to dismissal for failure to plead sufficient facts to meet the standards
of Twombly and Iqbal.
Nonetheless, in an abundance of caution, the Court will grant Plaintiff one final
opportunity to augment his complaint with factual allegations that, if proven, could
establish a plausible claim to relief under the TCPA. Specifically, within 21 days of the

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Just as the Court was about to issue the present opinion, an attorney entered an appearance
on Plaintiff’s behalf. As discussed below, the Court has determined that Plaintiff should be given
an opportunity to file an amended complaint, and the appearance of counsel on his behalf is an
important factor in this decision.

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date of this opinion and order, Plaintiff (now with the assistance of counsel) may file an
amended complaint that addresses the deficiencies identified in the present ruling —
namely, the absence of any factual allegations in support of Plaintiff’s TCPA claim, such
as the number of calls received from Defendant on Plaintiff’s cell phone, the approximate
dates and times of these calls, and the grounds for Plaintiff’s belief that these calls were
made in violation of the TCPA. Plaintiff and his counsel are cautioned that this case will
be dismissed with prejudice if Plaintiff should fail to act within 21 days to advance
sufficient factual allegations to support a viable claim under the TCPA.
III. CONCLUSION
For the reasons set forth above,
NOW, THEREFORE, IT IS HEREBY ORDERED that Defendant’s February 3,
2014 motion to dismiss (docket #3) is GRANTED. IT IS FURTHER ORDERED, in
accordance with rulings in the present opinion and order, that Plaintiff is granted a period

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of twenty-one (21) days from the date of this opinion and order to file an amended
complaint that addresses the deficiencies identified in Defendant’s motion and in the
Court’s ruling. In the event that Plaintiff fails to act within this 21-day period, the Court
will dismiss this case with prejudice.

s/Gerald E. Rosen
Chief Judge, United States District Court
Dated: April 18, 2014
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on April 18, 2014, by electronic and/or ordinary mail.
s/Julie Owens
Case Manager, [phone]

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