Curry v. Synchrony Bank, N.A.

Filing 10

MEMORANDUM OPINION AND ORDER granting defendant's 5 Motion to Dismiss. Ordered that Plaintiff, Christie Currys request to amend her Complaint is GRANTED. Plaintiff Curry is ordered to file an Amended Complaint within fourteen (14) days of the date of this Order. Signed by Chief District Judge Louis Guirola, Jr. on 11/12/15. (RLW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
CHRISTIE CURRY
v.

PLAINTIFF
CAUSE NO. 1:15CV322-LG-RHW

SYNCHRONY BANK, N.A.

DEFENDANT

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO
DISMISS AND GRANTING LEAVE TO FILE AMENDED COMPLAINT
BEFORE THE COURT is the [5] Motion to Dismiss filed by Defendant
Synchrony Bank, N.A. pursuant to Federal Rule of Civil Procedure 12(b)(6). The
Court has considered the submissions of the parties and the applicable law and
finds that the Motion should be denied. Plaintiff Christie Curry’s allegations do not
raise a right to relief above the speculative level under the Telephone Consumer
Protection Act (TCPA), 47 U.S.C. § 227. However, the Court will allow Curry to
amend her Complaint within fourteen days to attempt to cure the deficiencies
therein.
BACKGROUND
Curry claims that Defendant Synchrony Bank attempted to collect on a debt
by placing multiple calls to her cellular telephone. (See Compl. 2 (¶¶ 8-10), ECF
No. 1). She contends that “[b]ased upon the timing and frequency of [the Bank]’s
calls and per its prior business practices, [the] calls were placed with an automated
dialing system (‘auto-dialer’).” (See id. (¶11)). Curry alleges that she requested on
two occasions that the calls stop, and “revoked any consent, express or implied, to
receive automated collection calls from” the Bank, but the Bank continued to place

at least one hundred and ninety (190) automated collection calls to [her] on a neardaily basis between February, 2015 and June, 2015.” (See id. at 2-3 (¶¶ 12-15)).
She seeks statutory damages pursuant to the provisions of the TCPA.
The Bank argues that Curry has failed to allege sufficient facts to support a
TCPA claim, and, instead, that her “claims are based on nothing more than
conclusory allegations that [the Bank] engaged in prohibited conduct.” (Def. Mem.
1, ECF No. 6). The Bank contends that Curry’s allegations are insufficient to make
it plausible that the Bank used an automatic telephone dialing system, which is one
of the requirements to state a claim under the TCPA.
Curry has opposed the Motion to Dismiss, contending that other courts have
found allegations such as hers sufficient to state a claim for relief under the TCPA.
Alternatively, she requests that the Court allow her to amend her Complaint.
THE LEGAL STANDARD
In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the Court accepts
“as true the well-pleaded factual allegations in the complaint and construe[s] the
complaint in the light most favorable to the plaintiff.” Hermann Holdings Ltd. v.
Lucent Techs. Inc., 302 F.3d 552, 557 (5th Cir. 2002). To survive a 12(b)(6) motion,
“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) (citation and quotation marks omitted). “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.” Id. “While legal
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conclusions can provide the framework of a complaint, they must be supported by
factual allegations.” Id. at 679. “When there are well-pleaded factual allegations, a
court should assume their veracity and then determine whether they plausibly give
rise to an entitlement to relief.” Id.
DISCUSSION
The TCPA “makes it unlawful to use an automatic telephone dialing system
. . . without the prior express consent of the called party, to call any . . . cellular
telephone . . . .” See Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740, 745 (2012)
(citing 47 U.S.C. § 227(b)(1)(A)). For TCPA purposes, an automatic telephone
dialing system (ATDS) “means equipment which has the capacity . . . to store or
produce telephone numbers to be called, using a random or sequential number
generator[,] and to dial such numbers.” See 47 U.S.C. § 227(a)(1).
The Court has found no binding precedent within the Fifth Circuit with
respect to the types of allegations required to raise a right to relief above the
speculative level in a TCPA action. Curry argues that “numerous courts have held
that a plaintiff need not allege any facts to support an allegation that an ATDS was
used by a defendant; rather a plaintiff need only allege that the calls were placed
with an ATDS in order to sufficiently plead a claim.” (Pl.’s Mem. 3, ECF No. 8).
The majority of courts to have considered the issue, though, have found that a
plaintiff’s bare allegation that a defendant used an ATDS is not enough. See, e.g.,
Martin v. Direct Wines, Inc., No. 15 C 757, 2015 WL 4148704, at *2 (N.D. Ill. July 9,

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2015); Trumper v. GE Capital Retail Bank, 79 F. Supp. 3d 511, 513 (D.N.J. 2014);
Jones v. FMA Alliance Ltd., 978 F. Supp. 2d 84, 86-87 (D. Mass. 2013). The Court
finds these and similar cases to be more persuasive than those Curry cites for much
the same reasons as the district court in Aikens v. Synchrony Fin. d/b/a Synchrony
Bank, No. 15-10058, 2015 WL 5818911 (E.D. Mich. July 31, 2015), a case in which
the plaintiff was represented by the same law firm representing Curry in this
action, and in which the plaintiff made nearly identical arguments to those made
here. See id. at *2-4, report and recommendation adopted, 2015 WL 5818860, at *1
(E.D. Mich. August 31, 2015).
Regardless, Curry contends that she has done more than allege merely that
the Bank used an ATDS because she “alleged that she received one hundred and
ninety (190) automated collection calls from [the Bank] on a near-daily basis over
an approximate five-month period.” (Pl.’s Mem. 4, ECF No. 8). However, “[w]hile
plaintiffs cannot be expected to provide specific details about the type of dialing
systems used to deliver the calls they receive, it is entirely reasonable to demand
that plaintiffs provide sufficient information about the timing and content of the
calls they receive to give rise to the reasonable belief that an ATDS was used.” See
Aikens, 2015 WL 5818911, at *4 (emphasis added).
Curry “has not provided sufficient contextual details to determine whether
she spoke to a human or merely heard a recording upon picking up the phone.” See
id. “If she spoke to a human, she has not indicated whether she heard a human

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voice immediately upon picking up her phone, or whether there was a significant
period of ‘dead air,’ which is generally indicative of the use of a automatic dialer.”
Id. “[Curry]’s allegations permit the Court to infer that she received a great
number of calls from [the Bank]’s number, but no allegations . . . permit an
inference that [the Bank] used an ATDS to accomplish these calls.” See id. “To
surmount this threshold, [Curry] could plead those facts which are likely within her
knowledge, but which she has not included in her complaint . . . .” See id. This
would include “the content of [the] calls, whether she spoke to a human, whether
there was dead air prior to a human picking up the line, or any other facts which
may tend to make the use of an ATDS more likely.” See id.; see also, e.g., Martin,
2015 WL 4148704, at *2; Jones, 978 F. Supp. 2d at 86-87.
“Because these facts were not alleged in her complaint, [Curry] has not stated
a plausible claim for relief under the TCPA § 227,” and the Bank’s Motion will be
granted. See Aikens, 2015 WL 5818911, at *4; see also Crawford v. Target Corp.,
No. 3:14-cv-0090-B, 2014 WL 5847490, at *3-4 (N.D. Tex. Nov. 10, 2014) (denying
motion to dismiss TCPA action where, inter alia, the plaintiff “indicated the reasons
for her contention that [the d]efendant employed an ATDS in calling her”).
However, although the Bank requests a dismissal with prejudice, the Court will
allow Curry an opportunity to amend her Complaint to attempt to cure the
identified deficiencies. See, e.g., Martin, 2015 4148704, at *2. The Bank offers
little, if any, persuasive opposition to the request to amend, this action is in its

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early stages, and this is Curry’s first request to amend. See, e.g., Priester v. JP
Morgan Chase Bank, N.A., 708 F.3d 667, 678 (5th Cir. 2013) (discussing factors to
be considered for a request to amend). Furthermore, it is well-settled in this Circuit
that leave to amend should be freely given. See id.
IT IS THEREFORE ORDERED AND ADJUDGED that the [5] Motion to
Dismiss filed by Defendant Synchrony Bank, N.A. is GRANTED.
IT IS FURTHER ORDERED AND ADJUDGED that Plaintiff Christie
Curry’s request to amend her Complaint is GRANTED. Plaintiff Curry is ordered
to file an Amended Complaint within fourteen (14) days of the date of this Order.
SO ORDERED AND ADJUDGED this the 12th day of November, 2015.
s/

Louis Guirola, Jr.

Louis Guirola, Jr.
Chief United States District Judge

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