EVANS v. NATIONAL AUTO DIVISION, L.L.C. et al
OPINION filed. Signed by Judge Anne E. Thompson on 3/7/2016. (mmh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
FREDERICK EVANS, individually and on
behalf of all others similarly situated,
Civ. No. 15-8714
NATIONAL AUTO DIVISION, L.L.C.,
ARIEL FREUD, and DOES 1-25,
This matter appears before the Court on the Motion of Defendants National Auto
Division, L.L.C. and Ariel Freud (“Defendants”) to Dismiss the Complaint of Plaintiff Frederick
Evans (“Plaintiff”) pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 7). Plaintiff
opposes. (ECF No. 9). The Court has decided the Motion after considering the parties’ written
submissions and without oral argument pursuant to Federal Rule of Civil Procedure 78(b). For
the reasons stated below, Defendants’ Motion will be denied.
This case involves alleged violations of the Telephone Consumer Protection Act
(“TCPA”), 47 U.S.C. § 227. The TCPA prohibits the use of an automatic telephone dialing
system 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. Plaintiff’s allegations are as follows: Plaintiff has
received numerous telephone calls to his cellular telephone from Defendants using an automatic
telephone dialing system, including but not limited to the following dates: November 15, 2015;
November 16, 2015; November 17, 2015; and November 18, 2015. Plaintiff knew that the calls
were made using an automatic telephone dialing system based on the calls’ frequency and the
persistence of the calls, as well as the fact that on many of the calls, there was a brief and
unnatural period of silence after Plaintiff answered the call. The calls appeared to be attempts to
sell vehicle service contracts or extended warranties on vehicles. Plaintiff did not provide his
prior express consent to Defendants for the calls, and even after he asked Defendants to stop
calling him, the calls continued. Consequently, Plaintiff alleges that Defendants’ behavior
violates the TCPA.
Plaintiff asserts that Defendants have made and continue to make similar calls to
thousands of cellular telephones nationwide. Therefore, Plaintiff filed a class action lawsuit in
this Court on December 17, 2015 on behalf of all persons within the United States who received
similar calls from Defendant without having provided their prior, express consent. (ECF No. 1).
Defendants filed their Motion to Dismiss on February 11, 2016. (ECF No. 7). This Motion is
presently before the Court.
A. Legal Standard
A motion under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a
complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). The defendant bears the burden
of showing that no claim has been presented. Hedges v. United States, 404 F.3d 744, 750 (3d
Cir. 2005). When considering a Rule 12(b)(6) motion, a district court should conduct a threepart analysis. See Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). “First, the court must
‘take note of the elements a plaintiff must plead to state a claim.’” Id. (quoting Ashcroft v. Iqbal,
56 U.S. 662, 675 (2009)). Second, the court must accept as true all of a plaintiff’s well-pleaded
factual allegations and construe the complaint in the light most favorable to the plaintiff. Fowler
v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009); see also Connelly v. Lane Const.
Corp., No. 14-3792, 2016 WL 106159 (3d Cir. Jan. 11, 2016). However, the court may
disregard any conclusory legal allegations. Fowler, 578 F.3d at 203. Finally, the court must
determine whether the “facts are sufficient to show that plaintiff has a ‘plausible claim for
relief.’” Id. at 211 (quoting Iqbal, 556 U.S. at 679).
The TCPA prohibits the use of an automatic telephone dialing system 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. Defendants move to dismiss Plaintiff’s Complaint under Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim under the TCPA. First, Defendants argue that
Plaintiff’s Complaint only alleges a bare recitation of the element of the use of an automatic
telephone dialing system (“ATDS”). Second, Defendants argue that Plaintiff’s Complaint does
not state a claim because Plaintiff does not plead the telephone number at which he received the
alleged calls. The Court will address each argument in turn.
As to Defendants’ first argument, the Court finds that Plaintiff sufficiently pled that the
calls were made using an ATDS. Plaintiff states that the calls were made using an ATDS based
on “the frequency and persistence of the calls, as well as the fact that on many of the calls, there
was a brief and unnatural period of silence after Plaintiff answered the call.” (Compl. ¶ 18, ECF
No. 1). Plaintiff also describes the content of the calls, noting that they appeared to be attempts
to sell vehicle service contracts or extended warranties on vehicles. (Id. ¶ 19). Including this
level of detail distinguishes the present case from TCPA cases in which a motion to dismiss was
granted because the Complaint “says nothing about the calls [Plaintiff] received.” See Trumper
v. GE Capital Retail Bank, 79 F. Supp. 3d 511, 513 (D.N.J. 2014); see also Johansen v. Vivant,
Inc., No. 12-7159, 2012 WL 6590551, at *3 (N.D. Ill. Dec. 18, 2012) (granting motion to dismiss
where the plaintiff provided no other information about the messages he received other than
stating that the defendant left prerecorded messages on his cellular phone using an ATDS); cf.
Connelly v. Hilton Grant Vacations Co., LLC, No. 12-0599, 2012 WL 2129364, at *4 (S.D. Cal.
June 11, 2012) (holding that plaintiffs’ allegation that there was “a delay prior to a live person
speaking to Plaintiffs or [no] transfer to a live person” gives rise to a reasonable inference that
defendant used an ATDS, even though recitation of the statutory language alone might not have
Unlike these cases, Plaintiff’s allegations supply details beyond bare legal conclusions or
the recitation of statutory language, such as the frequency of the calls, their content, and the
period of silence heard during the call. See Connelly, 809 F.3d at 789. While Plaintiff could
have included more detail, Defendants’ use of an ATDS was sufficiently pled for purposes of the
Motion to Dismiss. Therefore, the Court will not dismiss the Complaint on this basis.
As to Defendant’s second argument, the Court finds that Plaintiff’s claims were
adequately pled without a specific telephone number. Whether a Plaintiff is required to plead a
specific telephone number to survive a motion to dismiss a TCPA claim appears to be an issue of
first impression in this Court. However, most district courts have held that a plaintiff need not
provide this detail at the pleading stage in order to provide adequate notice to a TCPA defendant.
See, e.g., Ott v. Mortg. Inv’rs Corp. of Ohio, 65 F. Supp. 3d 1046, 1059 (D. Or. 2014) (citing
Crawford v. Target Corp., No. 14-0090, 2014 WL 5847490, at *3-4 (N.D. Tex. Nov. 10, 2014);
Baker v. Caribbean Cruise Line, Inc., No. 13-8246, 2014 WL 880634, at *3 (D. Ariz. Mar. 6,
2014); Manfred v. Bennett Law, PLLC, No. 12-61548, 2012 WL 6102071, at *2 n.2 (S.D. Fla.
Dec. 7, 2012); Robinson v. Midland Funding, LLC, No. 10-2261, 2011 WL 1434919, at *3 (S.D.
Cal. Apr. 13, 2011); Reyes v. Saxon Mortg. Servs., Inc., No. 09-1366, 2009 WL 3738177, at *4
(S.D. Cal. Nov. 5, 2009)); see also Leon v. Target Corp., No. 15-0001, 2015 WL 1275918, at *3
(M.D. Pa. Mar. 19, 2015) (“[A] plaintiff's specific telephone number is not essential to providing
a defendant notice of the conduct charged, and the absence of a plaintiff's telephone number from
the pleadings does not detract from the TCPA claim’s plausibility and does not prevent a court
from drawing the reasonable inference that the defendant is liable for the misconduct alleged”)
(internal citation omitted). This Court declines to adopt the minority view advocated by
Defendants, requiring that a plaintiff plead a specific telephone number in order to state a claim.
Therefore, the Court will not dismiss the Complaint on this basis.
For the reasons stated herein, Defendants’ Motion to Dismiss the Complaint will be
denied. A corresponding Order follows.
/s/ Anne E. Thompson
ANNE E. THOMPSON, U.S.D.J.
Dated: March 7, 2016
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