A District Court judge in Illinois has granted a defendant’s motion for judgment on the pleadings after it was sued for allegedly violating the Telephone Consumer Protection Act by calling an individual on his cell phone without obtaining consent because the plaintiff failed to state in his complaint that the defendant used an automated telephone dialing system when making the calls.
A copy of the ruling in the case of Bader v. Navient Solutions, LLC, can be accessed by clicking here.
The plaintiff received more than 105 calls from the defendant. When he answered the phone, the plaintiff claimed there would be a five-second pause before a representative from the defendant would begin the conversation. The defendant indicated it was calling to collect a debt owed by someone other than the plaintiff. The plaintiff indicated he revoked consent to be contacted during the conversations and also mailed a certified letter revoking consent.
Nonetheless, the plaintiff failed to state in his complaint that the defendant was using an ATDS to make its calls. The plaintiff pointed to certain factual assertions in the complaint that demonstrated the defendant was using an autodialer, but never explicitly mentioned it. And when describing the device used by the defendant, the plaintiff referred to it as a “predictive dialer.”
In using the ruling from ACA International v. FCC, a plaintiff must “assert facts that make it plausible Navient Solutions used equipment with the capabilities to generate numbers randomly in order to allege the use of an autodialer,” Judge Sharon Johnson Coleman wrote in her ruling. “Simply put, Bader does not put forth any factual allegations that suggest Navient Solutions dialed his number using equipment that had the capacity to generate random or sequential numbers. To the contrary, Bader argues that Navient Solutions’ continual calling, even after being told that he was not the person Navient Solutions was seeking, evidences that it stored Bader’s phone number and called him, thus establishing that it used an autodialer.”
