We previously discussed how easy it is for a TCPA claim to proceed against a party despite the slim allegations against it. It turns out, though, that a TCPA defendant can just as likely be on the flip side of this coin where a TCPA claim is dismissed because a plaintiff failed to provide enough detail surrounding the allegations. For such dismissal to occur, the TCPA defendant—and TCPA defense counsel—must put in the extra effort when reviewing the complaint and pay attention to very small details and factual gaps.
TCPA Claim Filed
On its face, the plaintiff’s complaint in Cataldi v. Ocwen Loan Servicing, LLC looked like any other TCPA complaint filed against a calling party. The plaintiff alleged that the defendant had called her cell phone using an automatic telephone dialing system (“ATDS”) more than 1,347 times in an effort to collect a debt. She alleged that “[s]ometime after [the defendant] first began to call Plaintiff, Plaintiff clearly revoked any conceivable prior express consent, if prior consent ever existed, by stating that Plaintiff no longer wished to be contacted by telephone.” Consequently, the plaintiff believed the defendant could be held liable for countless TCPA violations.
Of course, at first glance, it would appear that the plaintiff’s complaint would survive dismissal. Indeed, she alleged the three main components of any TCPA claim: (1) that a call was made to her cell phone; (2) that it was made using an ATDS; and (3) that it was made without her consent. Nevertheless, the defendant moved to dismiss the complaint and, due to its attention to detail, ultimately succeeded on its motion. But how, exactly, did the defendant succeed?
Motion to Dismiss
As we noted in a previous blog post, under Supreme Court precedent, a plaintiff’s complaint may only proceed against a defendant if the complaint alleges enough facts and evidence to show that the claim is “facially plausible,” meaning “the plaintiff must include enough details about the subject-matter of the case to present a story that holds together.” In moving to dismiss Cataldi’s TCPA claim, Ocwen Loan Servicing challenged whether the complaint provided enough evidence to meet this standard, and specifically focused on the third element of the TCPA claim: consent.
According to Ocwen Loan Servicing, while the plaintiff admitted to previously consenting to calls, she never properly alleged that she later revoked this consent. As the defendant noted, the plaintiff never alleged (1) who the revocation was directed to, (2) when such revocation was made, (3) or what particularly the plaintiff said in order to make the revocation sufficiently clear to the defendant. These facts, the defendant claimed, were critical to the plaintiff’s TCPA complaint, and without them being plead in a more specific manner the plaintiff’s story could not “hold together,” thereby violating Supreme Court precedent and requiring the complaint’s dismissal.
While the facts missing from Cataldi’s story were individually minor, the court believed they were collectively large enough to create a factual gap in plaintiff’s story that made her TCPA claim lack facial plausibility. Accordingly, the court sided with the defendant’s argument and dismissed the claim.
When it comes to an initially pleaded TCPA claim, courts will generally conclude that the plaintiff’s complaint meets the facial plausibility test established by the Supreme Court. However, just because this is a typical occurrence, it does not automatically preclude a TCPA claim from dismissal. Thus, parties who face TCPA lawsuits should take the time to carefully read the complaint and review it for missing elements, omitted details, and factual gaps. By putting in the extra time during this initial phase of litigation, TCPA defendants could potentially save themselves hundreds of hours of work (and thousands of dollars) down the road.
Post written with John C. Nelson, Jr.