Duchene v. OnStar, LLC

Filing 20

ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT'S 16 RENEWED MOTION TO DISMISS. Signed by District Judge Denise Page Hood. (DPar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DANIEL DUCHENE,
Plaintiff,
Case No. 15-13337
HON. DENISE PAGE HOOD

v.
ONSTAR, LLC,

Defendant.
_________________________________________/
ORDER DENYING IN PART AND GRANTING IN PART
DEFENDANT’S RENEWED MOTION TO DISMISS
I.

INTRODUCTION
On September 14, 2015, Plaintiff Daniel Duchene, individually and purportedly

on behalf of all others similarly situated, filed a two-count Complaint against
Defendant OnStar, LLC in the Western District of Michigan. Plaintiff’s cause of
action was transferred to the Eastern District of Michigan on September 22, 2015
(Doc. No. 1), and Defendant filed a Motion to Dismiss on November 25, 2015. (Doc.
No. 9). After Plaintiff filed an Amended Complaint on December 21, 2015 (Doc. No.
14), Defendant filed a Renewed Motion to Dismiss on January 7, 2016. (Doc. No. 16)
Plaintiff filed a response on January 29, 2016 (Doc. No. 18). Defendant did not file
a reply. A hearing on Defendant’s Renewed Motion to Dismiss was held on March
1

2, 2016.
For the reasons that follow, the Court denies Defendant’s Renewed Motion to
Dismiss with respect to Count I and grants Defendant’s Renewed Motion to Dismiss
with respect to Count II.
II.

STATEMENT OF FACTS
Plaintiff is an individual residing in Ada, Minnesota. (Amended Complaint ¶

4). Defendant is a Delaware business entity with a principal place of business in
Detroit, Michigan. (Amended Complaint ¶ 5)

Plaintiff’s two-count Amended

Complaint alleges that Defendant placed multiple unauthorized calls to his cellular
phone in violation of the Telephone Consumer Protection Act, 47 U.S.C. 227 et seq.
(“TCPA”).
In August of 2015, Plaintiff began receiving calls on his cellular telephone at
telephone number 218-xxx-0230. (Amended Complaint ¶ 9) The calls were from
telephone number 972-372-1723, a telephone number owned by Defendant.
(Amended Complaint ¶ 10) When Plaintiff answered the calls, no human being spoke
to him; instead, Plaintiff would hear complete silence before the call terminated
without anyone coming on the line. (Amended Complaint ¶ 11) Each time Plaintiff
did not answer a call from 972-372-1723, Plaintiff got a voicemail message consisting
of screeching and beeping sounds that lasted approximately thirty seconds. (Amended
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Complaint ¶¶ 12-13) None of the voicemails Plaintiff received from 972-372-1723
contained a human voice.
Plaintiff is not a customer of Defendant, and he has never provided Defendant
his number. (Amended Complaint ¶ 17) Other consumers have complained on the
internet of having received similar calls from Defendant and its 972-372-1723
telephone number, including such posts as:
•

“[S]omething that makes that electronic, high-pitched squawking noise[]
calls my cellphone then calls again about 6-10 minutes later. This
happens 2-3 times a day. Has been going on for about a month now.”

•

A consumer complained to Defendant regarding the calls, and Defendant
told the consumer that “eventually . . . the calls would stop, but, of
course, they did not.”

•

“I have received 4 calls from that [972-372-1723] number with high
pitched squeeling noise.”

•

“I’ve answered and only get the phone modem sound . . . . They call all
hours of the night now, like 3, 4, 5, AM. My number has been registered
on donotcall.gov since 2011.”

•

“Fax noise calls my cell all hours of day and night. When I call it, it is
On-Star.”

•

“Get this call daily and all I hear is what appears to be fax tones.”

(Amended Complaint ¶ 19) Plaintiff purports to bring this lawsuit on behalf of
himself and all others who received Defendant’s automatic dialing system calls.
(Amended Complaint ¶¶ 21-29)
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III.

APPLICABLE LAW & ANALYSIS
A.

Standard of Review

A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the plaintiff’s
complaint. Accepting all factual allegations as true, the court will review the
complaint in the light most favorable to the plaintiff. Eidson v. Tennessee Dep’t of
Children’s Servs., 510 F.3d 631, 634 (6th Cir. 2007). As a general rule, to survive a
motion to dismiss, the complaint must state sufficient “facts to state a claim to relief
that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). The complaint must demonstrate more than a sheer possibility that the
defendant’s conduct was unlawful. Id. at 556. Claims comprised of “labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not
do.” Id. at 555. Rather, “[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.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).
B.

Analysis
1.

Count I

In order to state a TCPA claim for calls made to a cellular phone, a plaintiff
must establish that: (1) a call was placed to a cell or wireless phone, (2) by the use
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of any automatic dialing system and/or leaving an artificial or pre-recorded message,
and (3) without prior consent of the recipient plaintiff. 47 U.S.C. § 227(b)(1)(A).
See also Pugliese v. Prof'l Recovery Serv., Inc., No. 09–12262, 2010 WL 2632562,
at **6–7 (E.D. Mich. June 29, 2010); Strand v. Corinthian Colls., Inc., No. 13-1235,
2014 WL 1515494, at *2 (W.D. Mich. Apr. 17, 2014). An automatic dialing system
(“ATDS”), as defined in the TCPA, is a device with “the capacity to store or
produce telephone numbers to be called, using a random or sequential number
generator” and “to dial such numbers.” 47 U.S.C. § 227(a)(1).
There is no dispute that Plaintiff adequately pleaded the first and third
requirements set forth above. Defendant argues Plaintiff has not sufficiently alleged
he was called by an ATDS. Defendant contends that Plaintiff’s sole allegation
regarding Defendant’s use of an ATDS is: “Upon information and belief, the dialing
system used to call the [p]laintiff had the capacity to dial sequentially or randomly
and at all times dialed without human intervention.” (Amended Complaint ¶ 15)
Defendant argues that Plaintiff does not satisfy Twombly and Iqbal because
Plaintiff alleges no facts showing how he arrived at this conclusory allegation. For
example, Defendant maintains, Plaintiff does not allege the basis for any belief that
the calls were made from a machine that has the “capacity to dial sequentially or
randomly and at all times dialed without human intervention.” Defendant also argues
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that Plaintiff does not allege the source of any “information and belief” that would
support such a conclusion. Defendant asserts that Plaintiff merely relies on the
statutory language of the TCPA, which provides:
(a) Definitions — As used in this section — (1) The term “automatic
telephone dialing system” means equipment which has the capacity—
(A) to store or produce telephone numbers to be called, using a
random or sequential number generator; and (B) to dial such numbers.
47 U.S.C. § 227(a)(1). Defendant points to Plaintiff’s allegations that “[a]t all times
mentioned herein, Defendant called Plaintiff’s cellular telephone using an ‘automatic
telephone dialing system’ (‘ATDS’) as defined by 47 U.S.C. § 227(a)(1).” (Amended
Complaint ¶ 14).
According to one court, “the vast majority of courts to have considered the
issue have found that ‘a bare allegation that defendants used an ATDS is not
enough.’” Snyder v. Perry, No. 14-2090, 2015 WL 1262591, at *8 (E.D.N.Y. Mar.
18, 2015) (quoting Baranski v. NCO Fin. Sys., Inc., No. 13-6349, 2014 WL 1155304,
at *6 (E.D.N.Y. Mar. 21, 2014) (dismissing the complaint after holding that
“[p]laintiffs must do more than simply parrot the statutory language” defining
ATDS)). Defendant cites more than 10 other cases with similar holdings. See, e.g.,
Aikens v. Synchrony Financial, No. 15-10058, 2015 WL 5818911, at *4 (E.D. Mich.
July 31, 2015) (Morris, M.J.) (threadbare facts alleged by plaintiff were insufficient

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to support inference plaintiff was called using an ATDS).1
Plaintiff states that he has asserted a plausible claim that Defendant called his
cell phone using an ATDS in violation of the TCPA because “the [TCPA’s] clear
language mandates that the focus be on whether the equipment has the capacity ‘to
store or produce telephone numbers to be called . . . .” Satterfield v. Simon & Schuster,
Inc., 569 F.3d 946, 951 (9th Cir. 2009) (emphasis in original). The “basic function
of such dialing equipment” is “the capacity to dial numbers without human
intervention.” See Rules and Regulations Implementing the Telephone Consumer
Protection Act of 1991, CG Docket No. 02–278, Report and Order, 23 FCC Rcd. 559,

1

See also Flores v. Adir Int’l, LLC, No. 15–00076, 2015 WL 4340020, at *4
(C.D. Cal. July 15, 2015) (dismissing complaint where “[p]laintiff’s TCPA
claims rest solely on his conclusory allegation that Defendant used an ATDS,
which will not support a plausible claim for relief”); Martin v. Direct Wines, Inc.,
No. 15-757, 2015 WL 4148704, at *2 (N.D. Ill. July 9, 2015) (“It is insufficient for
plaintiff to simply parrot the language of the TCPA and conclusorily allege that
defendants used an ATDS.”); Hunter v. Diversified Consultants, Inc.., No. 142198, 2014 WL 6747153, at *1 (M.D. Fla. Nov. 26, 2014) (dismissing complaint
where “[p]laintiff’s only factual allegations, that ‘during the past 48 months prior
to the filing of this complaint, [d]efendant contacted [p]laintiffs’ [sic] cell phone
without express permission with an automated dialing system’ and that
‘[d]efendant called [p]laintiffs’ [sic] cell phone intentionally and repeatedly,
without express permission and with an automated telephone dialing system ...’ do
not create any inference supporting the allegation that calls were made using an
automatic dialing system, and are insufficient to state a facially plausible claim.”);
Gragg v. Orange Cab Co., No. 12-0576, 2013 WL 195466, at *2 (W.D. Wash. Jan.
17, 2013) (dismissing TCPA claim for failure to properly plead the defendants
used an ATDS).
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¶ 13 (2008) (the “2008 TCPA Order”). The definition contemplates “autodialing
equipment that either stores or produces numbers,” then dials. Rules and Regulations
Implementing the Telephone Consumer Protection Act of 1991, CG Docket No.
02–278, Report and Order, 18 FCC Rcd. 14014, ¶ 132 (2003) (the “2003 TCPA
Order”).
A capacity to produce telephone numbers randomly or sequentially is not a
necessary capacity of an ATDS if the system (1) stores then (2) dials numbers (3)
without human intervention. See Rules and Regulations Implementing the Telephone
Consumer Protection Act of 1991, CG Docket No. 02–278, Report and Order, 27 FCC
Rcd. 15391, 15392 n.5 (2012) (the “2012 TCPA Order”); Glauser v. GroupMe, Inc.,
2015 WL 475111, at *6 (N.D. Cal. Feb. 4, 2015) (citing FCC’s 2008 and 2012 TCPA
Orders and concluding that “while the capacity for random/sequential dialing is not
required for TCPA liability, the capacity to dial numbers without human intervention
is required”); Sterk v. Path, Inc., 46 F. Supp. 3d 813, 818 (N.D. Ill. 2014) (collecting
cases and stating that “the [FCC] has issued decisions stating that an ATDS may
include equipment that automatically dials numbers from a stored list without human
intervention, even when the equipment lacks the capacity to store or produce
telephone numbers to be called, using a random or sequential number generator.”).
Plaintiff argues that his amended complaint and reasonable inferences taken
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from it compel the conclusion that Defendant’s system can, and as to Plaintiff did, (1)
store then (2) dial numbers (3) without human intervention, and is therefore an ATDS.
Plaintiff alleges that when he answered Defendant’s calls, there was no human being
on the line but instead there was a period of silence before the calls dropped.
(Amended Complaint ¶ 11) Plaintiff further alleges that when he did not answer
Defendant’s calls, Defendant left voicemail messages consisting of screeching and
beeping sounds, lasting approximately thirty seconds. (Amended Complaint ¶¶ 12-13)
Based on these allegations, Plaintiff argues that it can be plausibly determined that
Defendant obtained Plaintiff’s cell phone number and plugged Plaintiff’s cell phone
number into Defendant’s automated telephone system, which then stored and
automatically dialed Plaintiff’s number, repeatedly. Plaintiff also alleges Defendant
did the same to other consumers, as evidenced by their complaints online. (Amended
Complaint ¶ 19)
Plaintiff also contends that Defendant ignores Plaintiff’s specifically pled facts
regarding the nature of its calls when arguing that: (1) Plaintiff made only a single,
entirely conclusory and speculative sentence about an ATDS in the amended
complaint, and (2) such a “barebones allegation” means this case is indistinguishable
from Aikens and should be dismissed.

Plaintiff argues that Aikens is easily

distinguishable because that court found the extent of that plaintiff’s allegations
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regarding the calls was (1) “that the caller attempted to reach someone named ‘Sam,’”
and (2) “that [the plaintiff] asserted to the caller (whether prerecorded or live, Plaintiff
does not say) that she was not the ‘Sam’ they were looking for.” Aikens, 2015 WL
5818911, at *4. The court noted and distinguished cases denying motions to dismiss
where “the plaintiffs provided at least some . . . detail regarding the content of the
messages or calls, thereby rendering the claim that an ATDS was used more
plausible.” Id. at *3 (citations omitted). As Plaintiff notes, the Aikens court granted
the defendant’s motion to dismiss for plaintiff’s failure to allege use of an ATDS
because that plaintiff “provided no factual allegations regarding the nature and
character of the calls[.]” Aikens, 2015 WL 5818911, at *4 (emphases added).
Plaintiff asserts that he alleges sufficient facts regarding the nature and
character of the calls for the Court to infer that Defendant’s calls were automated
because Plaintiff alleges he either: (a) answered the call, no person spoke to him, and
he heard nothing, or (b) did not answer the call and received a robotic, automated
screeching and beeping voicemail. Plainitff argues such allegations establish that it
was plausible Defendant utilized an ATDS on the calls, thereby meeting the bar to
state a claim under Rule 12(b)(6). See, e.g., Cunningham v. Kondaur Capital, 2014
WL 8335868, at *6 (M.D. Tenn. Nov. 19, 2014) (finding plaintiff sufficiently alleged
use of ATDS where alleged “[text] messages were repeated within a short span of time
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and consisted of the same content”); Neptune, 34 F. Supp. 3d at 1250 (finding plaintiff
sufficiently alleged use of ATDS where he “describe[d] the generic content of the
messages, i.e., a prerecorded voice reminding Plaintiff that his payment was due”);
Mashiri, 2013 WL 5797584, at *5; Vaccaro v. CVS Pharmacy, Inc., 2013 WL
3776927, at *2 (S.D. Cal. July 16, 2013) (“In addition to the direct allegation of
ATDS use, it is reasonable to infer from the number of calls, the use of an artificial or
prerecorded voice, and the commercial nature of the calls, that Defendant used an
ATDS in calling Plaintiff.”).2
Plaintiff argues that the numerous cases cited by Defendant granting TCPA
defendants’ motions to dismiss are distinguishable for the same reason as Aikens: in
those cases, the plaintiffs did not allege facts regarding what they heard on the calls
(or saw on the text messages) that led them believe the calls were automated.3

2

See also Hickey v. Voxernet LLC, 887 F. Supp. 2d 1125, 1129 (W.D. Wash
2012) (plaintiff stated a claim where the plaintiff alleged “that Voxer transmit[ted]
automated text messages to lists of cell phone numbers that Voxer [was] given
access to,” and “the generic form of the message”); In re Jiffy Lube Intern., Inc.
Text Spam Litig., 847 F. Supp. 2d 1253, 1260 (S.D. Cal. 2012) (class action
plaintiffs sufficiently alleged use of ATDS where plaintiffs “stated that they
received a text message from an SMS short code and that the message was sent by
a machine with the capacity to store or produce random telephone numbers.”);
Kramer v. Autobytel, Inc., 759 F. Supp. 2d 1165, 1171 (N.D. Cal. 2010).
3

Plaintiff asserts that even though he alleges specific facts regarding the
nature of Defendant’s calls, some courts have held that the mere allegation that a
defendant used an ATDS is a factual allegation satisfying the standard set out in
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The Court finds that Plaintiff has specifically pled that he either: (a) answered
the call, no person spoke to him, and he heard nothing, or (b) did not answer the call
and received a robotic, automated screeching and beeping voicemail (Amended
Complaint ¶¶ 11-13). The Court further finds that Plaintiff sufficiently alleged facts
to support a finding that Defendant used an ATDS when calling Plaintiff’s cell phone.
The Court denies Defendant’s Renewed Motion to Dismiss as it relates to Count I.
2.

Count II

Count II of Plaintiff’s Amended Complaint alleges a claim for willfulness under
the TCPA. Section 227(b)(3) of the TCPA provides:
If the court finds that the defendant willfully or knowingly violated this
subsection or the regulations prescribed under this subsection, the court
may, in its discretion, increase the amount of the award to an amount
equal to not more than 3 times the amount available under subparagraph
(B) of this paragraph.
47 U.S.C. § 227(b)(3).
The TCPA does not define “willfully” and “knowingly.” There is a
split of authority as to what constitutes a willful or knowing violation.
The court in Texas v. Am. Blastfax, Inc., 164 F.Supp.2d 892
(W.D.Tex.2001), adopted a heightened standard because “[t]he
Federal Communications Commission has interpreted ‘willful or
knowing’ under the Telecommunications Act (of which the TCPA is
a part), as not requiring bad faith, but only that the person have reason

Twombly and Iqbal. See, e.g., De Los Santos v. Millward Brown, Inc., 2014 WL
2938605, at *3 (S.D. Fla. June 30, 2014); Buslepp v. B & B Entm’t, LLC, 2012 WL
1571410, at *1 (S.D. Fla. May 3, 2012).
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to know, or should have known, that his conduct would violate the
statute.” Id. at 899.[] Other courts, however, have interpreted willful
or knowing to mean volitional or intentional, requiring that a plaintiff
need only show that a defendant voluntarily made the impermissible
communication that violated the TCPA. See, e.g., Bridgeview Health
Care Ctr. Ltd. v. Clark, No. 09 C 5601, 2013 WL 1154206 at *7
(N.D.Ill. Mar.19, 2013) (“[T]he Court adopts the more common
interpretation that ‘willfully’ or ‘knowingly’ simply requires that the
act be intentional or volitional, as opposed to inadvertent, and not that
defendant must have known that the conduct would violate the
statute.”); Stewart v. Regent Asset Mgmt. Solutions, No. 10-CV-2552,
2011 WL 1766018 at *7 (N.D.Ga. May 4, 2011); Sengenberger v.
Credit Control Svcs., Inc., No. 09 C 2796, 2010 WL 1791270 at *6
(N.D.Ill. May 5, 2010), adhered to on reconsideration, 2010 WL
6373008 (N.D.Ill. June 17, 2010).
Echevvaria v. Diversified Consultants, Inc., No. 13 CIV. 4980 LAK AJP, 2014 WL
929275, at *9 (S.D.N.Y. Feb. 28, 2014) (footnote omitted).
Defendant first argues that, because Plaintiff failed to adequately plead an
essential element of his TCPA claim, the requisite elements of willful activity cannot
be supported and dismissal of Count II of the Amended Complaint is warranted. See
47 U.S.C. § 227(b)(3) (predicating a finding of willfulness on a finding of liability
under Section 227(b)(2)). For the reasons set forth above, the Court finds that this
argument fails.
Defendant next asserts that intent under the TCPA “does not require any
malicious or wanton conduct,” but it does require that the Plaintiff plead and prove
“‘knowing’ conduct.” Alea London Ltd. v. Am. Home Servs., Inc., 638 F.3d 768, 776
13

(11th Cir. 2011) (citation omitted). Defendant argues it is not sufficient for Plaintiff
merely to allege that Defendant intended to place calls to his cellular phone number.
Defendant argues that Plaintiff must plead that Defendant knew or should have known
that placing calls to Plaintiff was itself a violation of the TCPA. See, e.g., Harris v.
World Fin. Network Nat’l Bank, 867 F. Supp. 2d 888, 895 (E.D. Mich. 2012) (rejecting
plaintiff’s argument that “he must only demonstrate that [d]efendants intended to use
the autodialer to place the calls” to prove willfulness); Texas v. Am. Blastfax, Inc., 164
F. Supp. 2d 892, 899 (W.D. Tex. 2001) (“The Federal Communications Commission
has interpreted ‘willful or knowing’ under the [TCPA], as not requiring bad faith, but
only that the person have reason to know, or should have known, that his conduct
would violate the statute.”). Defendant asserts Plaintiff does not allege any facts to
show that Defendant: (a) knew it was calling Plaintiff without his consent, (b) knew the
calls were not made for emergency purposes, and/or (c) was aware that the alleged calls
were made in violation of the TCPA.
Plaintiff counters that Defendant continues to ignore the factual allegations of
Plaintiff’s complaint. Plaintiff states that “the Court [should] adopt[] the more
common interpretation that ‘willfully’ or ‘knowingly’ simply requires that the act be
intentional or volitional, as opposed to inadvertent, and not that defendant must have
known that the conduct would violate the statute.” Bridgeview Health Care Ctr. Ltd.
14

v. Clark, 2013 WL 1154206, at *7 (N.D. Ill. Mar. 19, 2013). Plaintiff asserts that
willful and knowing conduct can be inferred from his allegations that: (1) he has never
had any business with Defendant and has never provided Defendant his cell phone
number (Amended Complaint ¶ 17), (2) despite the lack of any relationship with
Plaintiff, Defendant placed numerous calls to Plaintiff’s cell phone (Amended
Complaint ¶ 16), and (3) Defendant knows about the problem of its errant calls but has
declined to fix it (Amended Complaint ¶ 19), as evidenced by, for example, an online
consumer complaint from November 15, 2007 (“Was told eventually [by Onstar] that
the calls would stop, but, of course, they did not.”). Plaintiff contends that his
allegations raise a plausible claim that Defendant knew it operated an ATDS that was
errantly calling Plaintiff’s and other consumers’ cell phone numbers.
Defendant also contends that Plaintiff’s allegations that “phone calls were made
without the prior express consent of [p]laintiff . . . and were not made for emergency
purposes,” such that the alleged calls “constitute[] a willful violation of the TCPA” are
not sufficient to satisfy Iqbal and Twombly. (Amended Complaint ¶¶ 40, 42)
Defendant argues Plaintiff must plead at least that Defendant knew it was calling the
wrong number. See Harris, 867 F. Supp. 2d at 892 (holding that prior to plaintiff
notifying the defendants, the defendants’ conduct could not be deemed willful or
knowing because they were unaware they were calling the wrong number). In this
15

case, Defendant argues, Plaintiff has not alleged that he notified Defendant that
Defendant was calling the wrong number—Plaintiff’s number—and that after that
notice, Defendant continued to place unauthorized calls to Plaintiff.
Plaintiff does not specifically address this issue; rather, Plaintiff generally
responds that Defendant knew it was operating an ATDS that was calling Plaintiff and
other consumers without permission. Plaintiff cites two cases, but one of them actually
supports Defendant’s argument that it has to be aware that Plaintiff did not consent to
the calls in order to have willfully or knowingly violated the TCPA (i.e., Plaintiff has
to provide notice to Defendant that Defendant was calling the wrong number or did not
have permission to call him). Plaintiff cites Echevvaria, 2014 WL 929275, at *9,
where the court’s finding of a willful/knowing violation of TCPA was based on the
allegation defendant “knew or should have known that Livevox was an ATDS” and
“knew or should have known that it was calling the wrong person” because plaintiff
contacted defendant and informed defendant that she was not the person they were
seeking, defendant had the wrong number, and it should cease contacting her. Plaintiff
also cites Stewart v. Regent Asset Mgmt. Sols., 2011 WL 1766018, at **6-7 (N.D. Ga.
May 4, 2011), in which the court found a violation where: (a) plaintiff “established that
Defendant . . . used an automated caller with a prerecorded message to call Plaintiff’s
cell phone on more than one occasion,” and (b) although there is no indication that
16

plaintiff contacted Defendant about the calls, there was “no evidence before the court
that Defendant did not know that it made the telephone calls.”
The Court first concludes that it does not need to decide whether Plaintiff had
to allege that Defendant willfully or knowingly violated the TCPA or just that
Defendant willfully and knowingly made the calls. The Court finds that the analysis
and rationale of the Echevvaria and Harris courts is persuasive on the issue of what
Plaintiff is required to allege with respect to Defendant willfully or knowingly violating
the TCPA. Accordingly, the Court holds that a willful or knowing violation of TCPA
requires that Plaintiff has to plead that Defendant was made aware of/notified that
Plaintiff did not consent to calls from Defendant. As Plaintiff did not plead that he
notified Defendant that he did not consent to the calls (or that Defendant was otherwise
aware that Plaintiff did not consent to the calls), the Court grants Defendant’s Renewed
Motion to Dismiss as it relates to Count II.

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IV.

CONCLUSION
For the reasons stated above,
IT IS ORDERED that Defendant’s Renewed Motion to Dismiss (Doc. No. 16)

is DENIED with respect to Count I and GRANTED with respect to Count II.
IT IS SO ORDERED.

s/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: July 26, 2016

I hereby certify that a copy of the foregoing document was served upon counsel of
record on July 26, 2016, by electronic and/or ordinary mail.
s/LaShawn R. Saulsberry
Case Manager

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