A District Court judge in New Jersey has granted a defendant’s motion to dismiss on one of two claims made by a plaintiff that the defendant violated the Telephone Consumer Protection Act case while also granting the motion to dismiss a claim that it violated the Fair Debt Collection Practices Act.
The background: The plaintiff alleged that the defendant made multiple calls using an automatic telephone dialing system and a prerecorded voice without the plaintiff’s prior express consent, in violation of the TCPA. The plaintiff also claimed the defendant violated the FDCPA by engaging in false or deceptive collection practices, arguing that the calls misrepresented the nature or purpose of the communication.
- The defendant moved to dismiss, contending that the complaint failed to plausibly allege use of an ATDS as defined by the Supreme Court’s decision in Facebook v. Duguid and that the FDCPA claim was unsupported by factual allegations indicating any deceptive conduct.
- This was the plaintiff’s second attempt at making these accusations, with his previous complaint being dismissed.
The ruling: Judge Michael A. Shipp of the District Court for the District of New Jersey agreed in part with the defendant, dismissing the FDCPA count and one of the two TCPA claims.
- While the defendant argued the plaintiff made conclusory allegations that were short on details on which it could be inferred that the defendant used an ATDS, the plaintiff’s claims that there was a notable delay followed by a clicking noise before a representative spoke, that the calls were made using multiple different phone numbers, that calls were made in rapid succession to one another, that the calls had a consistent delay, and that the defendant’s representatives allegedly failed to identify themselves as debt collectors and asked to speak to a different person, to which the plaintiff explained he was not that person and that he did not want to be contacted again was enough to convince Judge Shipp that the plaintiff had cleared the threshold for pleading that the defendant used an ATDS and denied the motion to dismiss.
- Judge Shipp did agree with the defendant that the plaintiff failed to state a claim that the calls were telephone solicitations because collection calls are not considered solicitations.
- Judge Shipp also granted the motion to dismiss the FDCPA claims, which alleged the defendant violated Sections 1692e(11), 1692c(a), 1692d, and 1692g, on the grounds the plaintiff did not have standing to sue because he did not allege he owed a debt.
