A defendant has had a motion for summary judgment granted in a lawsuit in which it was alleged to have violated the Telephone Consumer Protection Act by not ceasing to contact an individual, because the complaint did not provide enough evidence that an automated telephone dialing system was used to place the calls.
The plaintiff alleged the defendant contacted her more than 130 times after she revoked consent to be contacted and filed suit, claiming the calls violated the TCPA.
In the complaint, the plaintiff alleged that “based on the frequency, number, nature and character of these calls, Defendant placed these calls using an automatic telephone dialing system for purposes of the TCPA.”
A copy of the ruling in Montinola v. Synchrony Bank can be accessed by clicking here.
While admitting it would be difficult at this stage to sufficiently plead that the defendant had used an ATDS to contact the plaintiff, the judge in this case ruled that the plaintiff “must allege facts that would allow the Court to plausibly infer that Defendant used an ATDS.”
Citing other cases in which the plaintiffs have alleged hearing a noticeable pause/delay, or a reference on a company’s website that it used an ATDS, or there was silence before a recording began, the judge noted that the plaintiff in this case “does not provide any factual allegation as to whether there was a pause at the beginning of the call, whether the voice on the other end sounded robotic, or whether the calls all came from the same number.”
At the end of the day, the plaintiff needs to do more than mention that 133 calls were placed to her phone as proof that an ATDS was used, the judge ruled.
