Asher v. Quicken Loans

Filing 29

MEMORANDUM DECISION granting 21 Motion to Dismiss for Failure to State a Claim Without Prejudice. Plaintiff is granted leave to amend the deficiencies identified within 21 days of this order. Signed by Judge Jill N. Parrish on 1/8/19. (jlw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
R. FLOYD ASHER,
MEMORANDUM DECISION AND
ORDER GRANTING MOTION TO
DISMISS

Plaintiff,
v.
QUICKEN LOANS, INC.,

Case No. 2:17-cv-1203

Defendant.

District Judge Jill N. Parrish

Before the court is defendant’s Motion to Dismiss the First Amended Complaint. (ECF
No. 21). For the reasons below, the motion is granted. The court will, however, grant plaintiff
leave to amend to address the deficiencies identified herein.
I.

BACKGROUND

Plaintiff R. Floyd Asher filed the operative first amended complaint on April 18, 2018,
alleging violations of the Telephone Consumer Protection Act (the “TCPA”). Defendant Quicken
Loans, Inc. (“Quicken Loans”) filed this Motion to Dismiss on May 2, 2018. (ECF No. 21). Mr.
Asher filed an opposition on May 30, 2018, (ECF No. 22), to which Quicken replied on June 13,
2018, (ECF No. 25).
II.

MOTION TO DISMISS STANDARD

Under Rule 12(b)(6), a defendant may move to dismiss a claim when the plaintiff fails to
state a claim upon which relief can be granted. The court’s function on a Rule 12(b)(6) motion is
not to weigh potential evidence that the parties may present at trial but to “assess whether the
plaintiff’s complaint alone is legally sufficient to state a claim for which relief may be granted.”

Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (quoting Miller v. Glanz, 948
F.2d 1562, 1565 (10th Cir. 1991)).
“A court reviewing the sufficiency of a complaint presumes all of plaintiff’s factual
allegations are true and construes them in the light most favorable to the plaintiff.” Hall v.
Bellmon, 935 F.2d 1106, 1108 (10th Cir. 1991) (citing Scheuer v. Rhodes, 416 U.S. 232 (1974)).
“To 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.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the
context of a motion to dismiss, means that the plaintiff has alleged facts that allow “the court to
draw [a] reasonable inference that the defendant is liable for the misconduct alleged.” Id.
III.

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(b)(1)(A)(iii). To state a cause of action under the TCPA, a
plaintiff must allege (1) that the defendant called the plaintiff’s cellular telephone (2) using an
ATDS or an artificial or prerecorded voice (3) without the plaintiff’s prior express consent. See
Douek v. Bank of Am. Corp., No. CV 17-2313, 2017 WL 4882492, at *2 (D.N.J. Oct. 30, 2017).
Quicken Loans seeks dismissal on two grounds. First, it argues that the amended
complaint does not contain sufficient facts to provide the minimal notice required by Rule 8 of
the Federal Rules of Civil Procedure. Second, it argues that the amended complaint fails to
adequately allege the use of an ATDS. The court addresses each argument below.
A. FAILURE TO PROVIDE ADEQUATE NOTICE
Quicken Loans first argues that Mr. Asher does not provide adequate notice by failing to
“plead the phone number at which he allegedly received the calls, the phone number from which
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the calls originated, when the calls occurred, the identity of the callers, or what was said during
the alleged calls.” Quicken Loans contends, and the court agrees, that without this information,
the amended complaint fails to provide the minimal notice required by Rule 8 of the Federal
Rules of Civil Procedure. Under Rule 8, a complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to relief.” The purpose of this rule is to provide
sufficient notice to permit a defendant to investigate the allegations and ascertain available
defenses. The complaint here contains no information from which Quicken Loans can even begin
to conduct a factual investigation. Moreover, given that each violation of the TCPA entitles a
plaintiff to statutory damages of $500, a complaint without even a preliminary indication of the
number of such calls does not provide a defendant with adequate notice of the liability it faces.
Mr. Asher requests leave to amend his complaint to add these facts. Under Rule 15, “[t]he
court should freely give leave when justice so requires.” Fed. R. Civ. P. 15. Quicken Loans has
not argued, and the court does not find, that amendment here would be futile. Accordingly, Mr.
Asher will be granted leave to include the facts identified above. And as explained below, the
remaining elements of Mr. Asher’s TCPA claim are adequately pleaded. Thus, if he remedies the
factual deficiencies noted above he will have stated a claim under the TCPA.1

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Quicken Loans makes two other general arguments about the complaint, neither of which are
compelling. Quicken complains stridently about plaintiff’s counsel’s admitted use of a form
complaint that led to the erroneous inclusion of a reference to the Fair Debt Collection Practices
Act (the “FDCPA”) in a paragraph pleading subject-matter jurisdiction. But the remainder of the
complaint makes clear that Asher brings only a claim under the TCPA. Quicken Loans’ feigned
confusion about the subsection under which Mr. Asher seeks relief is similarly unconvincing.
The amended complaint contains more than enough information to apprise Quicken Loans of the
source of legal liability Mr. Asher seeks to impose. He alleges having received calls that were
indicative of an ATDS, and further alleges that he received those calls on his “Utah cellular
phone.” Am. Compl. at 2. With those two allegations alone, the court was able to immediately
identify the portion of § 227(b) that creates liability on such facts. Moreover, a brief review of
cases involving this provision reveals that courts routinely use the shorthand “TCPA claim” or
merely “§ 227(b)” to refer to cases brought under § 227(b)(1)(A). These defects evince
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B. ATDS PLEADING SUFFICIENCY
Quicken Loans advances several arguments in support of its contention that the amended
complaint does not adequately plead the second element of a TCPA claim (that the calls were
made “using any automatic telephone dialing system or an artificial or prerecorded voice”).
Quicken Loans first argues that the complaint must be dismissed for Mr. Asher’s failure to allege
the existence of a prerecorded voice message. This argument is unavailing because the statute is
disjunctive: plaintiffs can state a claim under the TCPA by alleging the use of “any automatic
telephone dialing system or an artificial or prerecorded voice.” 47 U.S.C. § 227(b)(1)(A)
(emphasis added); see also Warnick v. Dish Network LLC, No. 12-CV-1952, 2014 WL
12537066, at *11 (D. Colo. Sep. 30, 2014); Vaccaro v. CVS Pharmacy, Inc., 2013 WL 3776927,
at *1 (S.D. Cal. July 16, 2013). Thus, having plausibly alleged that the calls were made with an
ATDS, Mr. Asher need not also plead the use of an artificial or prerecorded voice message.
Next, Quicken Loans argues that the D.C. Circuit’s recent invalidation—under the
Administrative Procedure Act—of certain TCPA interpretations promulgated by the Federal
Communications Commission (“FCC”) erects a legal impediment separate from the amended
complaint’s notice deficiencies. See ACA Int’l v. FCC, 885 F.3d 687, 701–03 (D.C. Cir. 2018).
In ACA, the court found, among other things, that the FCC had offered impermissibly
contradictory guidance regarding the types of devices that will qualify as an ATDS. See id. at
702–03. Some of that invalidated guidance appeared to encompass devices that do not meet the
statutory definition of an ATDS. See id. at 703.
Though this argument is not well-developed, the court takes Quicken Loans to contend
that because ACA effected a narrowing of devices that will be deemed an ATDS, Mr. Asher’s
carelessness, to be sure, but defendant’s contention that they amount to a lack of fair notice is
unavailing.
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allegation that his calls displayed “a delay before Plaintiff is able to speak to anyone” is no
longer sufficient to nudge a TCPA claim across the line from conceivable to plausible.
TCPA defines an ATDS as “equipment which has the capacity . . . to store or produce
telephone numbers to be called, using a random or sequential number generator; and . . . to dial
such numbers.” § 227(a)(1) (emphasis added). Thus, the TCPA may be violated when an
unconsented call is made with equipment that possesses the capacity to generate and dial random
or sequential numbers, regardless of whether the call was the result of random number
generation. See ACA Int’l, 885 F.3d at 704 (noting that under current FCC interpretations, “the
statute prohibits any calls made from a device with the capacity to function as an autodialer,
regardless of whether autodialer features are used to make a call”).
The court can conceive of no other facts reasonably available to Mr. Asher that would
enhance his allegations that he received unconsented calls that bore indicia of an automated
dialer. Without discovery, Mr. Asher has no way to learn whether the automated system that
called him has the capacity to generate random or sequential numbers. But Mr. Asher has alleged
that he received unconsented calls that are indicative of such equipment, and in the absence of a
more plausible explanation for the genesis of those calls,2 the court finds such allegations
sufficient. If the presence of specific facts to establish the technical specifications of an ATDS
were an absolute requirement at the pleading stage, then, so long as offenders sufficiently

2

Quicken Loans urges the court to follow the lead of district courts that, according to Quicken
Loans, have dismissed TCPA claims on Rule 12(b)(6) motions for failing to plead the use of a
random or sequential number generator. But a review of those cases reveals that their complaints
suffered from plausibility issues quite distinct from a failure to plead the technical capabilities of
a dialer. For example, in Ibey v. Taco Bell Corp., No. 12-CV-0583, 2012 WL 2401972, at *3
(S.D. Cal. June 18, 2012), the plaintiff’s complaint admitted that he had opted in to receive
communications from Taco Bell. In light of this fact, the court found it more plausible that Taco
Bell was contacting him pursuant to that consent rather than through the use of a random or
sequential number generator in violation of the TCPA. Id.
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shielded the precise capabilities of their equipment from the general public, the TCPA could be
violated with impunity. To the extent that Quicken Loans intended to argue that Mr. Asher must
assert formulaic allegations that “upon information and belief, the equipment used to place the
calls had the capacity to generate random or sequential numbers,” the court cannot agree; Mr.
Asher’s amended complaint expressly alleges that the calls were made using an ATDS “as that
term is defined in 47 U.S.C. § 227(a)(1).” Am. Compl. at 2.
The ACA decision may well foreclose ultimate liability in this case if Quicken’s
automatic dialers are of the variety that no longer qualify under the text of § 227(a)(1). See
Herrick v. GoDaddy.com, 312 F. Supp. 3d 792, 801 (D. Ariz. 2018) (granting summary
judgment in favor of TCPA defendant because its equipment was not an ATDS under the postACA definition). Indeed, as Quicken Loans points out, the invalidated FCC guidance had deemed
certain predictive dialers to be ATDSs despite the fact that they do not meet the statutory
definition. At the pleading stage, however, Mr. Asher has adequately alleged that he received
calls from an ATDS as that term is defined in § 227(a)(1).3
IV.

ORDER

For the reasons articulated, defendant’s Motion to Dismiss is GRANTED. The complaint
is dismissed WITHOUT PREJUDICE, and plaintiff is granted leave to amend the deficiencies
identified within 21 days of this order.

Signed January 8, 2019
BY THE COURT

3

Quicken Loans does not dispute that the amended complaint adequately alleges the third
element of a TCPA claim: that the calls were made without Mr. Asher’s prior express consent.

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______________________________
Jill N. Parrish
United States District Court Judge

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