DOUEK v. BANK OF AMERICA CORPORATION

Filing 14

OPINION filed. Signed by Judge Anne E. Thompson on 10/28/2017. (km)

NOT FOR PUBLICATION

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

v.
OPINION
BANK OF AMERICA CORPORATION,
Defendant.

RECEIVED

OCT l 0 2017

THOMPSON. U.S.D.J.

INTRODUCTION

AT 8:30
WILLIAM T. WALSH
CLERK

M

This matter has come before the Court upon a motion to dismiss brought by Defendant
Bank of America Corporation ("Defendant"). 1 (ECF No. 13.) Plaintiff Joseph Douek ("Plaintiff')
does not oppose. The Court has decided the motion based on the written submissions and without
oral argument pursuant to Local Civil Rule 78.l(b). For the reasons stated herein, Defendant's
Motion to Dismiss is granted.

BACKGROUND
This case involves alleged violations of the Telephone Consumer Protection Act
("TCPA"). Plaintiffs allegations are as follows. On approximately December 21, 2015,
Defendant began communicating with Plaintiff through phone calls and text messages to two of
Plaintiffs specifically identified cellular phone numbers. (Compl. <][ 7, ECF No. 1; Am. Compl. <][
7, ECF No. 12.) Plaintiff never gave Defendant prior express permission to contact him by call
or text via cell phone (Am. Compl. <][ 8) and had no wish to be contacted on his cell phone (id.<][

1

Defendant reiterates that Plaintiff improperly named "Bank of America Corporation" as the
defendant, and that "Bank of America, National Association," is the proper defendant. (Def.'s
Br. at 1 n.l, ECF No. 13-2.)
1

9). On December 24, 2015, Plaintiff called Defendant and spoke with one of Defendant's
representatives. (Id. <J[ 11.) Plaintiff informed Defendant's representative that he did not want to
receive any text messages or automated calls. (Id. <J[ 11.) Despite this request, between January
27, 2016 and September 22, 2017, Plaintiff received at least 102 auto-dialed telephone calls. (Id.
<J[

13.) Plaintiff believes Defendant used an auto-dialer to contact him because there was never a

live person on the line when Plaintiff would answer a call coming from Defendant. (Id. <J[ 10.)
On April 6, 2017, Plaintiff filed the Complaint in this matter. (See Compl.) On May 19,
2017, Defendant filed its first motion to dismiss. (ECF No. 6.) The Court granted that Motion,
giving Plaintiff leave to amend his Complaint. (ECF Nos. 10, 11.) Plaintiff filed his Amended
Complaint on September 22, 2017. (ECF No. 12.) Defendant filed the Motion to Dismiss
presently before the Court on October 10, 2017. (ECF No. 13.)

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 three-part
analysis. See Malleus v. George, 641F.3d560, 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, 556
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

v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009); see also Connelly v. Lane Const.
Corp., 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
2

(quoting Iqbal, 556 U.S. at 679). If the complaint does not demonstrate more than a "mere
possibility of misconduct," the complaint must be dismissed. See Gelman v. State Farm Mut.

Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir. 2009) (quoting Iqbal, 556 U.S. at 679).

ANALYSIS
In response to Plaintiffs Amended Complaint, Defendant renews its argument that
Plaintiff fails to allege sufficient facts to support a violation of the TCPA. The TCPA prohibits
the use of an automatic telephone dialing system ("ATDS") 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.
"The TCPA's prohibition on automated dialing applies to both voice calls and text messages."

Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 269 n.2 (3d Cir. 2013) (citations omitted). "[T]o
state a cause of action under the TCPA, a Plaintiff must allege: '(l) that the defendant called the
plaintiffs cellular telephone; (2) using an ATDS; (3) without the plaintiffs prior express
consent."' Todd v. Citibank, 2017 WL 1502796, at *6 (D.N.J. Apr. 26, 2017) (citation omitted).
The Court granted Plaintiff leave to amend to correct the following pleading defects,
which, if properly alleged, would establish the second element in the standard above: ( 1) facts
supporting that the calls were "auto-dialed," (2) facts about the content of the calls and text
messages, and (3) facts about whether the calls and text messages were automated or
prerecorded. (Op. at 2-5, ECF No. 10.) Because Plaintiff did not submit a red-lined complaint as
required by Local Civil Rule 15.l(b)(2), adopted in May 2017, the Court compared the original
Complaint to the Amended Complaint. Plaintiff added three paragraphs (Am. Compl. TJ[ 8-10),
omitted the total number of text messages he received (Am. Compl. CJ[ 13), increased the total
number of calls he received from 73 to 102 (Compare Compl. CJ[ 10, with Am. Compl. CJ[ 13), and
deleted the phone numbers from which the calls were received (Compare Compl. CJ[ 10, with Am.
Compl. CJ[ 13).

3

Plaintiffs alterations cure only one of the original Complaint's three chief defects.
Plaintiff newly alleges that he "believes Defendant used an autodialer to contact him because
there was never a live person on the line when Plaintiff would answer a call coming from
Defendant." (Am. Compl. <J[ 10.) This factual allegation supports Plaintiffs claim that the calls
were automated or prerecorded, and therefore supports an inference that Defendant used an
ATDS. Courts to have considered similar claims have found this type of allegation persuasive.

See, e.g., Todd, 2017 WL 1502796, at *6. However, Plaintiff otherwise fails to allege facts to
support that the calls were auto-dialed. Plaintiff also fails to make factual allegations about the
content or nature of the calls, maintaining only a vague reference that the calls were "for debt
collection" in language that tracks the statute. (Am. Compl. <J[ 19; see also Compl. <J[ 16.)
Beyond failing to fully respond to the Court's noticed pleading deficiencies, Plaintiffs
Amended Complaint creates new defects. Whereas the original Complaint specified two phone
numbers from which Defendant allegedly called Plaintiff, but did not specify if the text messages
came from the same two phone numbers, the Amended Complaint no longer includes those
phone numbers at all and makes no mention of the total number of text messages received.

(Compare Compl. <J[ 10, with Am. Compl. <J[ 13.)
Furthermore, as the Court suggested in its prior Opinion, the period of time during which
the calls were received and the total number of calls received are relevant to establish an
inference that Defendant used an ATDS based on the frequency of the calls. See, e.g., Hashw v.

Dep't Stores Nat. Bank, 986 F. Supp. 2d 1058, 1061 (D. Minn. 2013). Nevertheless, the
Amended Complaint still fails to allege when the calls and text messages were received and,
upon closer inspection, muddies the overall timeline and the total number of calls received. The
Court's prior Opinion calculated that Plaintiff received calls over a roughly 15-month period
stretching from January 27, 2016 to April 6, 2017. (Compl. <J[ 7; Am. Compl. <J[ 7.) However, the
4

.,
,,·

Court now sees that a later paragraph appearing in both the Complaint and Amended Complaint
alleges the relevant time period dates back to August 15, 2015. (Compl. <][ 13; Am. Compl. <][ 16)
Moreover, where in the original Complaint Plaintiff first alleged receiving a total of 73 calls
(Compl. <][ 10), the Amended Complaint raises that number to 102 calls (Am. Compl. <][ 13). In a
later paragraph appearing in both pleadings, Plaintiff alleges receiving a total of 402 calls (Am.
Compl. <][ 16; Compl. <][ 13). Construing the Complaint in the light most favorable to Plaintiff, the
Court cannot find that Plaintiffs Amended Complaint sets forth sufficient allegations
establishing a plausible claim for relief. Defendant's motion is granted.
The Third Circuit instructs that where a complaint is vulnerable to Rule 12(b)(6)
dismissal "a District Court must permit a curative amendment, unless an amendment would be
inequitable or futile." Alston v. Parker, 363 F.3d 229, 235 (3d·Cir. 2004). It would not be
inequitable or futile to do so here. Plaintiff should plead facts responsive to the deficiencies
outlined above-in particular, the nature and subject matter of the calls and/or text messages,
what numbers they were received from, and how many were received over what precise period.

CONCLUSION
For the foregoing reasons, Defendant's motion to dismiss is granted. Plaintiffs
Complaint is dismissed, but Plaintiff is granted leave to amend. An appropriate order will follow.

5