Garcia v. Pro Custom Solar LLC
MEMORANDUM OPINION & ORDER. The Court finds Plaintiff has stated a plausible claim under § 227(b) of the TCPA. It is therefore ORDERED that Defendants' Rule 12(b)(6) Motion to Dismiss (Dkt. # 11 ) is hereby DENIED. Signed by District Judge Amos L. Mazzant, III on 1/10/2022. (rpc, )
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United States District Court
EASTERN DISTRICT OF TEXAS
PRO CUSTOM SOLAR LLC d/b/a
Case Number: 4:21-CV-00392
MEMORANDUM OPINION & ORDER
Pending before the Court is Defendant Momentum Solar’s Rule 12(b)(6) Motion to
Dismiss (Dkt. #11). Having considered the motion and the relevant pleadings, the Court finds the
motion should be DENIED.
Plaintiff Javier Garcia filed his Complaint against Defendant on May 25, 2021 for claims
arising under the Texas Consumer Protection Act (“TCPA”) and the Texas Business and
Commercial Code (Dkt. #1). Plaintiff alleges that Defendant unlawfully contacted him in
connection with telephone solicitations (Dkt. #1). Plaintiff’s cellular telephone number has been
on the Do Not Call Registry since early 2006, but in or around October 2020, Plaintiff received
various calls soliciting solar energy plans. Plaintiff alleges that Defendant made these calls on
October 20, 2020; January 25, 2021; and January 26, 2021 (Dkt. #9). Plaintiff alleges these calls
“began with a noticeable pause or delay prior to a live representative of Defendant appearing on
the line” (Dkt. #13 at pp. 1–2). Further, Plaintiff alleges that “Defendant maintains a stores list of
10 digit telephone numbers of consumers” and uses “a predictive dialing system” that functions as
a “random/sequential number generator” (Dkt. #13 at p. 2).
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On August 22, 2021, Defendant filed the present Motion to Dismiss (Dkt. #11), to which
Plaintiff responded on September 7, 2021 (Dkt. #13). Defendant asserts that Plaintiff has failed to
state a claim under 47 U.S.C. § 227(b) of the TCPA and requests, therefore, that this Court dismiss
the claim under Federal Rule of Civil Procedure 12(b)(6).
The Federal Rules of Civil Procedure require that each claim in a complaint include a “short
and plain statement . . . showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Each
claim must include enough factual allegations “to raise a right to relief above the speculative level.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
A Rule 12(b)(6) motion allows a party to move for dismissal of an action when the
complaint fails to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). When
considering a motion to dismiss under Rule 12(b)(6), the court must accept as true all well-pleaded
facts in the plaintiff’s complaint and view those facts in the light most favorable to the plaintiff.
Bowlby v. City of Aberdeen, 681 F.3d 215, 219 (5th Cir. 2012). The court may consider “the
complaint, any documents attached to the complaint, and any documents attached to the motion to
dismiss that are central to the claim and referenced by the complaint.” Lone Star Fund V (U.S.),
L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). The court must then determine
whether the complaint states a claim for relief that is plausible on its face. “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.” Gonzalez v. Kay, 577 F.3d 600,
603 (5th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “But where the wellpleaded facts do not permit the court to infer more than the mere possibility of misconduct, the
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complaint has alleged—but it has not ‘show[n]’— ‘that the pleader is entitled to relief.’” Iqbal,
556 U.S. at 679 (quoting FED. R. CIV. P. 8(a)(2)).
In Iqbal, the Supreme Court established a two-step approach for assessing the sufficiency
of a complaint in the context of a Rule 12(b)(6) motion. First, the court should identify and
disregard conclusory allegations, for they are “not entitled to the assumption of truth.” Iqbal, 556
U.S. at 664. Second, the Court “consider[s] the factual allegations in [the complaint] to determine
if they plausibly suggest an entitlement to relief.” Id. “This standard ‘simply calls for enough facts
to raise a reasonable expectation that discovery will reveal evidence of the necessary claims or
elements.’” Morgan v. Hubert, 335 F. App’x 466, 470 (5th Cir. 2009) (citation omitted). This
evaluation will “be a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S. at 679. Thus, “[t]o survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.”’ Id. at 678 (quoting Twombly, 550 U.S. at 570).
Section 227(b)(1)(A) of the TCPA prohibits calling “any telephone number assigned to
a . . . cellular telephone service” using “any automatic telephone dialing system” absent “prior
express consent of the called party.” “The TCPA provides a private right of action for aggrieved
individuals.” Libby v. Nat’l Republican Senatorial Comm., 2021 U.S. Dist. LEXIS 140103 at *6
(W.D. Tex. July 27, 2021) (citing 47 U.S.C. § 227(b)(3)). A TCPA claim requires that the
defendant have used “an automatic telephone dialing system” (“ATDS”). 47 U.S.C.
§ 227(b)(1)(A). An ATDS may be any equipment that can “store or produce telephone numbers to
be called, using a random or sequential number generator” and can dial such numbers. 47 U.S.C.
§ 227(a)(1). The Supreme Court recently clarified that a TCPA claim does not exist whenever
someone receives an unwanted call from an automated system; liability is triggered only if the
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automated system “us[es] a random or sequential number generator” to store or produce the phone
numbers called. Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1171 (2021).
Defendant asserts that Plaintiff has failed to allege facts that could plausibly show
Defendant used a random or sequential number generator to make its calls (Dkt. #11). Thus,
Defendant argues, Plaintiff has not stated a claim under § 227(b) of the TCPA. Specifically,
Defendant contends that “Plaintiff’s ATDS allegations are conspicuously disconnected from the
ATDS definition” and that allegations of a pause or delay on the line are not enough to state a
TCPA claim (Dkt. #11 at pp. 4–5).
Plaintiff responds that, “[i]n TCPA matters, courts have routinely concluded that a
consumer alleging . . . a pause or delay before a live agent comes on the line is [a] sufficient basis
to plausibly conclude” an ATDS was used” (Dkt. #13 at p. 4). Plaintiff points to the allegations
that he made in his Complaint: Defendant called him, there was a noticeable pause or delay, and
Plaintiff did not request information regarding the content of the call (Dkt. #13 at pp. 1–2).
The Court finds that Plaintiff has stated a claim. He need only allege facts at this stage—
not prove them. Plaintiff wrote in his Complaint that he believes “Defendant initiated multiple
telephone calls to Plaintiff’s cellular telephone number using an automatic telephone dialing
system” because “Defendant’s calls to Plaintiff began with a noticeable pause or delay prior to a
live representative of Defendant coming on the line” (Dkt. #9 at p. 5). He further alleges that the
“dialing system used by Defendant to call Plaintiff has the present and/or future capacity to dial
numbers in a random and/or sequential fashion” (Dkt. #9 at p. 5).
At this juncture, the Court need not decide whether the dialing system had the present or
the future capacity to dial numbers in a random or sequential fashion. Although liability is triggered
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only if the automated system actually “us[es] a random or sequential number generator,” Duguid,
141 S. Ct. at 1171, to store or produce the phone numbers called, “no plaintiff will have personal
knowledge of the defendant’s telephone system at the pleadings stage.” Libby, 2021 U.S. Dist.
LEXIS 140103 at *8-9. For this reason, Plaintiff need only plead “sufficient facts to proceed with
discovery, at which time he will have the opportunity to discover the precise technology that was
used at the time of the alleged violations.” Id. at *9. If at that time it becomes clear “the technology
does not meet the definition set forth in the statute, as construed by the Supreme Court recently
in Duguid, Defendant may move for summary judgment on that basis.” Id.
Further, Defendant erroneously contends that “[c]ourts across the country have considered
[a] ‘pause or delay’ allegation . . . insufficient to state a TCPA claim” (Dkt. #18 at p. 5). Defendant
cites three cases to support this proposition, none of which give such support. First, in Martin v,
Allied Interstate, LLC, the court was deciding a motion for summary judgment—not a motion to
dismiss—and therefore considered the allegations for their truthfulness. 192 F. Supp. 3d 1296
(S.D. Fla. 2016). Second, in Smith v. Aitima Med. Equip., Inc., “the Plaintiff [had] allege[d] no
facts regarding whether the equipment Defendant used has the capacity to store numbers to place
calls at random” and the “Plaintiff allege[d] the receipt of only one phone call.” 2016 U.S. Dist.
LEXIS 113671, at *19-20 (C.D. Cal. July 29, 2016). Lastly, in Danehy v. Jaffe & Asher, LLP, the
Plaintiff never alleged the ATDS “ha[d] the capacity to store phone numbers.” 2015 U.S. Dist.
LEXIS 32579, at *23 (E.D.N.C. Mar. 17, 2015).
Here, Plaintiff has alleged receipt of three phone calls, each of which began with a pause,
and Plaintiff has alleged that, based on these pauses, the “dialing system used by Defendant to call
Plaintiff has the present and/or future capacity to dial numbers in a random and/or sequential
fashion” (Dkt. #9 at p. 5). This is all he need allege at this stage.
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For the foregoing reasons, the Court finds Plaintiff has stated a plausible claim under
§ 227(b) of the TCPA.
It is therefore ORDERED that Defendants’ Rule 12(b)(6) Motion to Dismiss (Dkt. #11) is
IT IS SO ORDERED.
SIGNED this 10th day of January, 2022.
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
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