A District Court judge in California has granted a defendant’s motion to dismiss a Telephone Consumer Protection Act case, although giving the plaintiff the opportunity to amend his complaint, ruling that the plaintiff did nothing more than make conclusory allegations and that it is too “implausible” that the defendant would use a random or sequential number generator — a requirement to meet the definition of an automated telephone dialing system — to contact a debtor with an unpaid account.
A copy of the ruling in the case of Allison v. Wells Fargo Bank can be accessed by clicking here.
The plaintiff obtained a credit card for the defendant and defaulted on the account. The defendant began calling the plaintiff seeking repayment, leading to the plaintiff retaining an attorney. The attorney sent a cease and desist letter to the defendant, indicating that the plaintiff was revoking consent to be contacted via an ATDS. The defendant allegedly placed more than 120 calls to the plaintiff’s cell phone using an ATDS or pre-recorded voice, according to the complaint.
Ruling that most of the allegations in the complaint were conclusory, Judge Cynthia Bashant of the District Court for the Southern District of California noted that the frequency and repetitiveness of the calls could indicate the use of an ATDS. But, on the other hand, the complaint alleged that agents of the defendant contacted the plaintiff multiple times and requested payment. “These allegations strongly indicate that Defendant obtained Plaintiff’s phone number through their prior dealings with him and not through a random or sequential number generator,” Judge Bashant wrote.
Ultimately, “t is implausible that Defendant would use a randomly or sequentially generated phone number list to attempt to reach their debtors,” the judge wrote in granting the motion to dismiss.