TRENK v. BANK OF AMERICA

Filing 14

AMENDED OPINION filed re 13 Order on Motion to Dismiss. Signed by Judge Anne E. Thompson on 9/18/2017. (km)

REC EI

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

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SEP 2 0 2017
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MICHAEL TRENK,
Plaintiff,

Civ. No. 17-3472

v.
AMENDED OPINION
BANK OF AMERICA,
Defendant.

THOMPSON, U.S.D.J.
This matter comes before the Court upon the motion to dismiss by Defendant Bank of
America 1 ("Defendant"). (ECF No. 7). Plaintiff Michael Trenk ("Plaintiff') opposes. (ECF No.
10). The Court has issued the opinion below based upon the written submissions of the parties
and without oral argument pursuant to Local Civil Rule 78.1 (b ). For the reasons stated herein,
Defendant's motion to dismiss will be granted, and Plaintiff will be granted leave to amend his
complaint.

BACKGROUND
This is an action brought pursuant to the Telephone Consumer Protection Act, 47 U.S.C.
§ 227, et seq. ("TCPA"). Plaintiffs allegations are as follows: On ot about August 30, 2016,
Defendant began placing autodialed phone calls to Plaintiffs cell phone numbers 917-708-1642,
917-708-1733, 917-708-1793, 917-708-1874 and leaving messages.

(Comp!.~

8, ECF No. 1).

On September 12, 2016, Plaintiff called Defendant to check the past due amount on his account

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

and to request not to be contacted by autodialer or text 4IL·''-"·"c.• ··;··· . future, only by live person. (Id.
in th_e

~~

9-11 ). The first representative said she would make the changes and placed him on hold. (Id. ~
12). Plaintiff was then transferred to a second representative, who asked Plaintiff if he wanted
his account placed on a "no call." (Id.

mf 13-15).

Plaintiff told the representative, "That is not

what I said." (Id.~ 16). The representative stated that Plaintiff had to decide "one or the other."2
(Id.

~

17). Plaintiff reiterated his request to have a live person call him only and not to receive

any autodialed calls or texts. (Id.

~

18). This conversation went back and forth and eventually

concluded. (Id.). Defendant continued to call Plaintiff on his cell phones. (Id.

~

19). Between

August 30, 2016 and March 9, 2017, Plaintiff received at least 235 calls, 6 voicemails, and 34
texts from Defendant. (Id.).
Plaintiff filed the present action in this Court on May 16, 2017 alleging violations of the
TCPA by placing autodialed calls after being requested not to. On June 23, 2017, Defendant
moved to dismiss the complaint for failure to state a claim. This motion is presently before the
Court.

LEGAL STANDARD
A motion under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a
complaint. Kost v. Kozaldewicz, 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 l 2(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 plaintiffs well-pleaded
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In his opposition to the present motion, Plaintiff clarified that this meant that the representative
informed Plaintiff that he had to choose either autodialed calls or no calls at all.
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factual allegations and construe the complaint in the light most favorable to the pl~intiff. 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 detennine
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). 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
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 TCP A'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). The parties agree that, "to state a cause of action under the TCPA,
a Plaintiff must allege: "(l) that the defendant called the plaintiffs celluiar telephone; (2) using
an ATDS; (3) without the plaintiffs prior express consent." (Def. 's Br. at 2, ECF No. 7; Pl. 's
Opp'n Br. at 3, ECF No. 10; Todd v. Citibank, 2017 WL 1502796, at *6 (D.N.J. Apr. 26, 2017)).
Here, Defendant argues that Plaintiffs complaint must be dismissed pursuant to Fed. R.
Civ. P. 12(b)(6) because it fails to allege any facts to support an alleged violation of the TCPA.
Specifically, Defendant contends that Plaintiffs complaint merely parrots the language of the
TCPA, and that the complaint does not allege any facts which show that the alleged calls were
made using "a system that could (a) store or produce telephone numbers to be called, (b) using a
random or sequential number generator, and (c) dialed such numbers." (De£'s Br. at 3).

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Defendant further claims that the complaint lacks sufficient specificity regarding the dates, times,
number of calls, cellphone numbers, or content of the calls and text messages received. Lastly,
Defendant argues thatPlaintiffhas made no allegation that the calls used a pre-recorded
message, came from the same number, or included other indicators of an autodialed call such as
a silence before the recording began. (Reply at 3, ECF No. 11).

In opposition, Plaintiff argues that the complaint does contain sufficient factual
allegations. Plaintiff argues that the factual allegations regarding the number of calls (275),
voicemails (6), and texts (34) that Plaintiff allegedly received over a six-month period
sufficiently allege that Defendant used an ATDS, because "[t]hat averages out to more than a call
a day." (Pl. 's Opp'n Br.

at~).

The Court agrees with Defendant. 3 The complaint merely alleges that the calls and
messages were "auto-dialed", but offers no facts to support this allegation. The complaint does
allege the four phone numbers where Plaintiff received the calls, but does not specify if the calls
or text messages came from the same two phone numbers. Other than generally alleging that
Plaintiff received the calls and text messages over an approximate 6-month period, the complaint
does not allege when the calls and text messages were received.
Importantly, the complaint makes absolutely no factual allegations about the content of
the·alleged calls and text messages, nor does the complaint provide any factual allegation about
whether the calls and text messages were automated or prerecorded. Other Courts, including
Courts within this District, have found that "[a] bare allegation that defendants used an ATDS is
not enough." See, e.g., Baranski v. NCO Fin. 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
3

Defendant only appears to challenge, and the Court only addresses, the sufficiency of Plaitniff's
complaint on the second element, use of an ATDS.
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that '[a] bare allegation that defendants used an ATDS is not enough"') (collecting cases);

Trumper v. GE Capital Retail Bank, 79 F. Supp. 3d 511 (D.N.J. 2014); Curry v. Synchrony Bank,
N.A., 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. Dec. 5, 2014).
Moreover, the five 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 number of calls and text messages and the phone number
from which some of those calls and text message were received. See Todd v. Citibank, 2017 WL
1502796, at *6 (D.N.J. Apr. 26, 2017) (denying Defendant's motion to dismiss and finding that
Plaintiffs allegations regarding the content of the alleged messages-including a silence before
the recording began and a "key code" directory-allowed the Court to infer that calls were
placed using an ATDS); 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., 124 F. Supp. 3d 729, 732 (D.S.C. 2015) (same). In Hashw v. Dep 'st Stores Nat.
Bank, the Court found that Plaintiff sufficiently alleged the use of an ATDS where the plaintiff
alleged that he received 112 calls from the same telephone number over a three month period and
that the calls related to his debt and/or telemarketing. 986 F. Supp. 2d 1058 (D. Minn. 2013).

This appears to be an outlier among cases, in requiring an extremely cursory statement to support
the complaint. Additionally, in this case, Plaintiff did not allege a specific number he received
the calls from, only that he received 235 calls over a six-month period. This is insufficient for
the Court to determine that there are sufficient facts to show that Plaintiff was called by an
autodialer and, therefore, has a plausible claim for relief.

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•

The Court need not take Plaintifr s conclusory assertion that Defendant used autodialing
as true, Twombly, 550 U.S. at 555, and the Co~rt is not persuaded that Plaintifrs complaint
sufficiently sets forth factual allegations which allow the Court to infer that Plaintiff has a
plausible claim for relief. Therefore, Plaintifrs complaint fails to state a claim. However, the
Third Circuit has instructed that where a complaint is vulnerable to Rule l 2(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). The Court is not persuaded that it
would be inequitable or futile to do so here. Accordingly, the Court will grant Plaintiff leave to
file an amended complaint within the next 21 days.

CONCLUSION
For the reasons above, Defendant's motion to dismiss will be granted, and Plaintiff will
be granted leave to file an amended complaint. A corresponding order will follow.

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