978 F. Supp. 2d 84
D. Mass.2013Background
- Plaintiff Paul Jones sues Defendant FMA Alliance Ltd. alleging TCPA and Massachusetts Chapter 93A violations.
- Plaintiff claims Defendant called his wireless number without prior express consent.
- Plaintiff initially filed in Boston Municipal Court on May 1, 2013; Defendant removed the case to federal court on May 29, 2018; Defendant moved to dismiss on June 5, 2013.
- Plaintiff moved to consolidate and for leave to file an amended complaint on July 1, 2013, proposing, among other things, a FDCPA claim.
- Proposed amended complaint seeks FDCPA claims and additional 93A claims derived from TCPA/FDCPA; FDCPA claims would be time-barred, and 93A claims depend on the viability of TCPA/FDCPA claims.
- Court grants Defendant’s motion to dismiss TCPA claim for failure to plead ATDS usage; derivative 93A claim dismissed; amended complaint deemed futile; consolidation motion moot; case closed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether TCPA claim adequately pleads ATDS use | Jones contends ATDS was used. | FMA argues ATDS not adequately pled. | TCPA claim dismissed for failure to plead ATDS. |
| Whether derivative MA 93A claim survives without a viable TCPA claim | Jones's 93A claim rests on TCPA viability. | Without TCPA, 93A fails as derivative. | 93A claim dismissed as a matter of law. |
| Whether leave to amend is futile | Proposed amendment adds FDCPA and other claims. | Amendment would still lack ATDS allegations and is futile. | Amendment denied as futile. |
| Whether FDCPA claims in proposed amendment are time-barred | FDCPA claims relate to calls within the statute window. | FDCPA one-year statute of limitations bars claims. | FDCPA claims time-barred; no relation back should save claims. |
| Whether consolidation is appropriate given dismissal | Consolidate with related actions. | No need to consolidate if case is dismissed. | Consolidation moot. |
Key Cases Cited
- Gragg v. Orange Cab Co., 942 F. Supp. 2d 1111 (W.D. Wash. 2013) (ATDS definition and pleading standards for TCPA claims)
- Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036 (9th Cir. 2012) (ATDS interpretation and TCPA plausibility standards)
- Glassman v. Computervision Corp., 90 F.3d 617 (1st Cir. 1996) (standard of review for futility under Rule 12(b)(6))