Hashw v. Department Stores National Bank, 986 F. Supp. 2d 1058

Plaintiff Ameer Hashw alleges DSNB and FDS placed 112 calls to his cellular phone between Dec. 2010 and Feb. 2011 regarding a Macy’s credit-card debt, using an automatic telephone dialing system (ATDS) and without his consent.
Hashw claims his number was obtained via a credit bureau or skip-trace and that calls were for debt collection and/or telemarketing.
Hashw filed a putative class TCPA suit alleging violations of 47 U.S.C. § 227(b); defendants moved to dismiss the amended complaint.
Defendants argued (1) Hashw’s opposition brief was untimely, (2) the complaint fails to plead ATDS use with sufficient specificity, and (3) willful conduct (for enhanced damages) was not properly alleged.
The court rejected the timeliness objection, applied Twombly/Iqbal pleading standards, and denied the motion to dismiss, finding Hashw’s allegations adequate at the pleading stage.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness of Opposition filing	Hashw filed opposition per the court’s dispositive-motion procedures and by the relevant deadline	Defendants said opposition was late under Local Rule 7.1(c) and sought disregard or dismissal	Court found Hashw’s filing timely under the judge’s procedures and, even if late, denial of dismissal appropriate — opposition considered
Sufficiency of ATDS pleading	Alleged ATDS use and alleged 112 calls over a short period from same number support inference of ATDS	Complaint is conclusory; lacks specific facts about dialing technology, timing, content	Under Rule 8 and Twombly/Iqbal, allegations that an ATDS was used plus factual context (112 calls, timing, content) suffice at motion-to-dismiss stage
Pleading willfulness for enhanced damages	Hashw alleged willful conduct in amended complaint	Defendants said plaintiff must plead facts showing knowledge that conduct violated TCPA	Court held willfulness may be pleaded generally under Rule 9(b); at pleading stage an allegation of intentional/volitional conduct is sufficient

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (plausibility standard for pleading)
Ashcroft v. Iqbal, 556 U.S. 662 (application of plausibility standard to factual allegations)
Brown v. Medtronic, 628 F.3d 451 (8th Cir.; accept factual allegations, not legal conclusions, on motion to dismiss)
Braden v. Wal-Mart Stores, Inc., 588 F.3d 585 (8th Cir.; read complaint as a whole, not parsed piecemeal)
DiMercurio v. Malcom, 716 F.3d 1138 (8th Cir.; dismissal with prejudice is drastic, for clear record of delay)
Hamilton v. Palm, 621 F.3d 816 (8th Cir.; minimal factual pleading can suffice to allege a relationship)