5 F. Supp. 3d 1337
M.D. Fla.2014Background
- Plaintiff Jennifer McGinity bought a TracFone on Feb 15, 2013 and called to activate it. During the activation call she alleges an employee, Ul-win Mundy, demanded $400 and threatened to kill her and her family if she did not pay.
- Mundy allegedly continued to call and harass Plaintiff from about Feb through March 2013; Plaintiff claims approximately 6,000 calls during that period and that she, her husband, a neighbor, and law enforcement asked the caller to stop.
- Plaintiff sued TracFone asserting: (1) TCPA violations for use of an automatic telephone dialing system (ATDS); (2) violation of the Florida Consumer Collection Practices Act (FCCPA); and (3) intentional infliction of emotional distress (IIED).
- TracFone moved to dismiss under Fed. R. Civ. P. 12(b)(6). The court accepted complaint allegations as true for pleading purposes but required factual plausibility per Twombly/Iqbal.
- The court concluded Plaintiff failed to plausibly allege use of an ATDS (required for a TCPA claim), failed to plead that she was a “debtor” or that the demand arose from a transaction (required for FCCPA), and that Mundy’s phone threats, while reprehensible, were not sufficiently outrageous to state IIED under Florida law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| TCPA — use of ATDS | Calls were automated; 6,000 calls in 45 days implies ATDS | Bare allegation of ATDS is implausible without factual support; statutory ATDS requires capacity to store/produce numbers and dial using random/sequential generator | Dismissed without prejudice for failure to plausibly allege ATDS; leave to amend |
| FCCPA — was Plaintiff a "debtor" / demand a "debt" | Mundy demanded $400 from Plaintiff; that is an alleged obligation under the statute | No allegation that demand arose from a transaction or that Plaintiff was obligated to pay; extortion is not a statutory "debt" | Dismissed with prejudice for failure to allege a debt or debtor status |
| IIED — extreme and outrageous conduct | Threats to kill Plaintiff and family caused severe emotional distress | Threats were made by a caller believed abroad; no physical contact; conduct not sufficiently outrageous under controlling Florida law | Dismissed with prejudice; conduct not extreme/outrageous enough to state IIED |
| Rule 11 warning | N/A — Plaintiff permitted to amend TCPA claim | Counsel must ensure factual allegations have evidentiary support or reasonable basis | Court granted leave to amend TCPA claim and reminded counsel of Rule 11 obligations |
Key Cases Cited
- Randall v. Scott, 610 F.3d 701 (11th Cir.) (pleading standards and Rule 12(b)(6) framework)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (application of plausibility standard to factual allegations)
- Jones v. FMA Alliance Ltd., 978 F. Supp. 2d 84 (D. Mass.) (bare ATDS allegations insufficient)
- Gragg v. Orange Cab Co., 942 F. Supp. 2d 1111 (W.D. Wash.) (same)
- Kramer v. Autobytel, Inc., 759 F. Supp. 2d 1165 (N.D. Cal.) (discussion of factual detail needed to plead ATDS)
- Oppenheim v. I.C. Sys., Inc., 627 F.3d 833 (11th Cir.) (definition/analysis of "debt" under consumer-protection statutes)
- Johnson v. Thigpen, 788 So.2d 410 (Fla. 1st DCA) (elements for IIED under Florida law)
- Nims v. Harrison, 768 So.2d 1198 (Fla. 1st DCA) (example of sufficiently outrageous conduct supporting IIED)
- Metropolitan Life Ins. Co. v. McCarson, 467 So.2d 277 (Fla.) (recognition of IIED cause of action under Florida law)