DOUEK v. BANK OF AMERICA CORPORATION

Filing 10

OPINION filed. Signed by Judge Anne E. Thompson on 8/28/2017. (km)

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NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
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DISTRICT OF NEW JERSEY
JOSEPH DOUEK,
Plaintiff,
Civ. No. 17-2313

v.
OPINION
BANK OF AMERICA CORPORATION,
Defendant.
THOMPSON, U.S.D.J.

ilNTRODUCTION
This matter has come before thl Court upon multiple motions. Defendant Bank of
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America Corporation ("Defendant") 1 filed a motion to dismiss. (ECF No. 6). Plaintiff Joseph
. Douek ("Plaintiff') opposes. (ECF

N,. 7). Defendant also filed a motion to consolidate this ..

case-for pretrial purposes only-witll three other cases pending in this District. (ECF No. 9).
Plaintiff has not opposed. the motion tolconsolidate, and the time for response has expired. The
Court has decided the motions based o the written submissions of the parties and without oral
argument pursuant to Local Civil Rule 78.l(b). For the reasons stated herein, Defendant's
motion to consolidate is denied, and Defendant's motion to dismiss is granted. However,
·Plaintiff's Complaint will be dismissJ without prejudice and Plaintiff will be granted leave to
file an amended Complaint.

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The Court notes that Defendant claims that Plaintiff improperly named "Bank of America
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Corporation" as the Defendant. Defendant further claims that "Bank of America, National
Association," is the proper defendant.
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BACKGROUND

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This case involves alleged violations of the Telephone Consumer Protection Act
("TCPA"). Plaintiff's allegations are

follows: On aWroximately December 21, 2015,

Defendant began communicating with Plaintiff through phone calls and text messages to two of
Plaintiff's specifically identified cellult phone numbers. (Comp!., ECF No. 1at,6). On

December 24, 2015, Plaintiff called Defendant and spoke with one of Defendant's
representatives. (Id. at, 7). Plaintiff

~formed Defendant's representative that he did not want

to receive any text messages or autojted calls. (Id. at , 8). Despite this request, between
January 27, 2016 and April 6, 2017, Ptntiff received at least 73 auto-dialed telephone calls
(from two separate, identified telephJe numbers), and approximately 375 text messages. (Id. at

il 10).
On April 6, 2017, Plaintiff filed the Complaint in this matter. (See Compl.). On May 19,
2017, Defendant filed the instant motil to dismiss. (ECF No. 6). On July 27, 2017, Defendant
filed a motion to consolidate this cas+for pretrial purposes only-with three other cases

pending in this District, which also allege violations of the TCP A. The other three cases are: 1)
Osher Rotldn v. Bank ofAmerica (Civ. No. 17-2574-PGS-DEA) ("Rotldn"); 2) Saul Falack v.
Bank ofAmerica (Civ. No. 17-2992-PGS-TJB) ("Falac/C'); and 3) Michael Trenk v. Bank of
America (Civ. No. 17-3472-AET-TJB) ("Tren/C').
DISCUSSION
I.

Defendant's Motion to IDismiss

A motion under Federal Rule 1fCivil Procedure 12(b)(6) tests the sufficiency of a

complaint. Kost v. Kozaldewicz, 1F.3d176, 183 (3d Cir. 1993). The defendant bears the burden
of showing that no claim has been presLted. 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 three2

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part analysis. See Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). "First, the court must
'talce note of the elements a plaintiff mlst 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 plaintiffs well-pleaded
factual allegations and construe the complaint in the light most favorable to the plaintiff. Fowler
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v. UPMC Shadyside, 578 F.3d 203, 216--11 (3d Cir. 2009); see also Connelly v. Lane Const.
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Corp., 2016 WL 106159 (3d Cir. Jan. 11, 2016). However, the court may disregard any
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conclusory legal allegations. Fowler, 578 F.3d at 203. Finally, the court must determine
whether the "facts are sufficient to shor that plaintiff has a 'plausible claim for relie£"' Id. at
211 (quoting Iqbal, 556 U.S. at 679). If the complaint does not demonstrate more than a "mere
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possibility of misconduct,'' the compl,nt must be dismissed. See Gelman v. State Farm Mut.
Auto. Ins. Co., 583 F.3d 187, 190 (3d air. 2009) (quoting Iqbal, 556 U.S. at 679).
The TCPA prohibits the use of

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automatic telephone dialing system ("ATOS'') or a

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prerecorded voice to place calls to a cellular phone number without the called party's prior,
express consent. 47 U.S.C. § 227.

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TCPA's prohibition on automated dialing applies to

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both voice calls and text messages." lager v. Dell Fin. Servs. , LLC, 727 F.3d 265, 269 n.2 (3d
Cir. 2013) (citations omitted). The parties agree that, ''to state a cause of action under the TCPA,
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a Plaintiff must allege: "( 1) that the defendant called the plaintifr s cellular telephone; (2) using
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an ATOS; (3) without the plaintiff's prior express consent." (Def. 's Br. at 2, ECF No. 6-2; Pl. 's
Opp'n Br. at 3, ECF No. 7; Todd v. Cilbank, 2017 WL 1502796, at *6 (D.N.J. Apr. 26, 2017)).
Here, Defendant argues that

Pl~ntiff' s Complaint must be dismissed pursuant to Fed. R.

Civ. P. 12(b)(6) because it fails to alleJe any facts to support an alleged violation of the TCPA.
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Specifically, Defendant contends that ilaintiff' s Complaint merely parrots the language of the
TCP A, and that the Complaint does not allege any facts which show that the alleged calls were
made using an AIDS or an artificial Jprerecorded voice. (De£'s Br. at 2). In opposition,
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Plaintiff argues that the Complaint does contain sufficient factual allegations. Plaintiff argues
that the factual allegations regarding Je number of calls (73) and texts (375) that Plaintiff
allegedly received sufficiently allege Jat Defendant used an A IDS.
The Court agrees with Defendlt. The Complaint merely alleges that the 73 calls and
375 text messages that Plaintiff receiv1 over an approximately 15 month period were "autodialed" (Comp!.,

~ 10), but offers no fLs to support this allegation. The Complaint does allege

the two phone numbers from which Pl1ntiff allegedly received the 73 calls, but does not specify
if the 375 text messages came from thj same two phone numbers. (See Id.). Other than
generally alleging that Plaintiff receivf the calls and text messages over an approximate 15

month period, the Complaint does not allege when the calls and text messages were received.
Importantly, the Complaint mjes absolutely no factual allegations about the content of
the alleged calls and text messages, nol does the Complaint provide any factual allegation about
whether the calls and text messages wle automated or prerecorded. Other Courts, including
Courts

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wi~ this District, have.found ~at :·[a] bare allegation that defendants :sedan ATOS is.

not enough. See, e.g., Baranski v.

Ndlo Fm. Sys., Inc., 2014 WL 1155304, at

6 (E.D.N.Y.

Mar. 21, 2014) (noting that "the vast majority of courts to have considered the issue have found
that '[a] bare allegation that defendan1 used an ATOS is not enough"') (collecting cases);

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Trumper v. GE Capital Retail Bank, 7i F. Supp. 3d 511(D.N.J.2014); Curry v. Synchrony Bank.

N.4., 2015 WL 7015311, at *2 (S.D. Miss. Nov. 12, 2015); Brailey v. F.H Cann & Assocs., Inc.,
2014 WL 7639909, at *8 (W.D. La.

of.

5, 2014); but see Todd v. Citibank; 2017 WL 1502796,

at *6 (D.N.J. Apr. 26, 2017) (denying !Defendant's motion to dismiss and finding that Plaintifrs
allegations regarding the content of the alleged messages allow the Court to infer that calls were
place4 using an ATDS).

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Moreover, the four cases relied on by Plaintiff in his brief are not persuasive. In three of
those cases, the plaintiff made additional factual allegations beyond merely alleging that an

ATDS was used to make a specific n,ber of calls and text messages and the phone number
from which some of those calls and teJQt message were received. See Legg v. Voice Media
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Group, Inc., 990 F. Supp. 2d 1351, 135 4 (S.D. Fla. 2014) (Plaintiff alleged that Defendant sent

mass text messages from a "short code " that Defendant was present in over 50 major
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metropolitan areas, and that Defendant received ''voluminous" consumer complaints about

. similar text messages received from Difendant); Neptune v. Whetstone Partners, LLC, 34 F.
Supp. 3d 1247, 1250 (S.D. Fla. 2014) (Plaintiff alleged content of prerecorded message allegedly

used); Stewart v. T-Mobile USA, Inc., 1!24 F. Supp. 3d 729, 732 (D.S.C. 2015) (same). In Hashw
v. Dep't Stores Nat. Bank, 986 F. Supp.I 2d 1058 (D. Minn. 2013), the Court found that Plaintiff

sufficiently alleged the use of an ATDJ. There, the plaintiff alleged that he received 112 calls

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from the same telephone number over three month period and that the calls related to his debt
and/or telemarketing. See id. Here, horever, the calls and text messages occurred over a much
longer time period-approximately 15 months-and Plaintiff has not alleged the telephone
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number that the 375 text messages allegedly came from.
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The Court need not take Plaintiffs conclusory assertion that Defendant used autodialing

as true, Twombly, 550 U.S. at 555, and re Court is not persuaded that Plaintiff's Complaint
sufficiently sets forth factual allegations which allow the Court to infer that Plaintiff has a
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plausible claim for relief. Therefore, Plaintiffs Complaint fails to state a claim. However, the

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Third Circuit has instructed that where complaint is vulnerable to Rule 12(b)(6) dismissal "a

District Court must pennit a curative lendment, unless an amendment would be inequitable or
futile." Alston v. Parker, 363 F.3d 229] 235 (3d Cir. 2004). The Court is not persuaded that it

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would be inequitable or futile to do so here. Accordingly, the Court will grant Plaintiff leave to
file an amended Complaint within the lext twenty days.

II.

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Defendant's Motion to <Consolidate

Under Federal Rule of Civil Pjcedure 42(a), "[i]f actions before the court involve a
common question oflaw or fact, the coL may: ( 1) join for hearing or trial any or all matters at

issue in the actions; (2) consolidate the actions; or (3) issue any other orders to avoid
unnecessary cost or delay." "Rule 42 gives the district court 'broad powers to consolidate
actions involving common questions

04Ilaw or fact if, in its discretion, such consolidation would

facilitate the administration of justice.

TLiberty Lincoln Mercury, Inc. v. Ford Marketing Corp.,

149 F.R.D. 65, 80 (D.N.J~ 1993) (internal citations omitted). Thus, "[c]onsolidation is
appropriate to avoid unnecessary costs Ld/or delay, and to promote judicial economy." Id. at

8~ 1 (citations omitted). ''The mere Listence of common issues, however, does not require

consolidation." Id. at 81. •'The savinJ of time and effort gained through consolidation must be
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balanced against the inconvenience, delay or expense that might result from simultaneous
disposition of the separate actions."

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Here, Defendant seeks consoliltion of this caSe with Rotkin, Trenk, and Falack for
pretrial purposes only. It appears that
Defendant has filed a 12(b)(6) motion

~l four cases allege violations of the TCPA, and that

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dismiss in each of the cases. Defendant contends that

consolidation is appropriate because alJ four cases involve the same or substantially related
defendants, Counsel for the parties are le same in each of the four cases, the four cases involve

similar factual and legal questions, and consolidation would conserve judicial resources and limit
the parties' expense$. (ECF No. 9 at Sr).

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Defendant further argues that consolidation would prevent Defendant from being
"subjected to the potential ofinconsistLt rulings on the pleading standards for a TCPA case

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related to the use of an auto-dialer, whlch has been raised in each of Defendants' motions to
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dismiss." (Id.). However, Defendant rls to explain why that would be the case. Defendant

only seeks to consolidate theses four cases for pretrial purposes. Consolidation of these cases for
pretrial purposes would not affect the lerits of each case, nor would it prevent the Court from
engaging in an individual analysis of eLh of DefendaD.ts' motions to dismiss based on the facts
of that case. While it appears that therl are some common questions oflaw between the four

cases, disparate questions of fact exist, such as the manner and frequency with which Defendant
allegedly violated the TCPA. As a resalt, the Court is not persuaded that consolidation would
facilitate the administration of justice 1r promote judicial economy. Therefore, the Court

declines to exercise its discretion to consolidate these four cases for pretrial purposes.
Defendant's motion to consolidate is dLed.

CONCLUSION

For the foregoing reasons, Defendant's motion to consolidate is denied, and Defendant's
motion to dismiss is granted. Plaintiff'l Complaint will be dismissed without prejudice, and
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Plaintiff will be granted leave to amen, his complaint. If Plaintiff wishes to file an amended
Complaint consistent with the directivj of this Opinion, he must do so within 20 days of the

date of the accompanying Order. Should Plaintiff timely file an amended Complaint, Defendant
shall respond to the amended ComplJt within 21 days of the Complaint being filed on the
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docket. An appropriate order will follow.

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