366 F. Supp. 3d 1350
S.D. Fla.2018Background
- Plaintiff Justin Adams, a Michigan resident, alleges Ocwen called his cellular phone over 310 times from July 2011 to January 2016 to collect a mortgage-related debt despite repeated revocations of consent.
- Calls allegedly were made using an automatic telephone dialing system (ATDS), predictive dialer, and/or prerecorded/artificial voice (APV).
- Plaintiff sued under the TCPA, 47 U.S.C. § 227(b)(1)(A), in state court; Ocwen removed to federal court and moved to dismiss under Rule 12(b)(6).
- Ocwen moved to dismiss arguing (1) the complaint fails to plead use of an ATDS or prerecorded voice; and (2) debt-collection calls are exempt from the TCPA.
- The District Court evaluated statutory text, FCC orders (2003/2008/2015), and post-ACA case law in determining whether the complaint plausibly alleged an ATDS and whether debt-collection calls fall within the TCPA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether complaint sufficiently alleges use of an ATDS or prerecorded voice | Adams alleges >310 calls, repeated revocation of consent, and automated/prerecorded features imply ATDS/APV use | Ocwen contends plaintiff pleaded only legal conclusions and did not plead statutory ATDS capacity | Court denied dismissal; allegations suffice at pleading stage; ATDS question may be resolved at summary judgment after discovery |
| Whether TCPA covers debt-collection calls | Adams relies on FCC rulings and Eleventh Circuit precedent applying TCPA to debt collectors | Ocwen argues TCPA does not apply to debt collection, relying on impact of ACA vacatur of FCC ATDS guidance | Court rejected Ocwen; held TCPA applies to debt collectors and dismissal on that basis is improper |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (pleading must state a plausible claim)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (court need not accept conclusory allegations)
- Murphy v. DCI Biologicals Orlando, LLC, 797 F.3d 1302 (11th Cir. 2015) (TCPA applies to debt collectors)
- Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018) (statutory definition of ATDS can include devices that store and automatically dial numbers)
- King v. Time Warner Cable Inc., 894 F.3d 473 (2d Cir. 2018) (post-ACA treatment of FCC rulings on ATDS)
- Dominguez v. Yahoo, Inc., 894 F.3d 116 (3d Cir. 2018) (post-ACA interpretation of ATDS statutory text)
- ACA Int'l v. FCC, 885 F.3d 687 (D.C. Cir. 2018) (vacated aspects of FCC's 2015 ATDS interpretation)
- Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036 (9th Cir. 2012) (predictive dialers may qualify as ATDS)