Scherrer v. FPT Operating Company, LLC, 1:19-cv-03703

Background

Plaintiff Maura Scherrer filed a putative class action under the TCPA alleging FPT Operating Co., LLC (d/b/a Talus Payments) called her cell phone without prior consent using an automatic telephone dialing system (ATDS).
Complaint alleges defendant ran an Outbound Contact Center using Five9’s dialing system that can generate random/sequential numbers to determine dialing order, store that order, and then dial numbers in the stored order; plaintiff alleges she never provided her number.
Defendant moved to dismiss under Rule 12(b)(6), arguing Duguid means an ATDS requires a device that generates telephone numbers (not merely a generator used to select/order from a stored list).
The magistrate judge reviewed statutory text, Duguid (including Footnote 7), split authority in other courts, and district-level precedent about list-ordering generators.
Court concluded Duguid’s Footnote 7 and persuasive authority support that an ATDS can include equipment that uses a random/sequential number generator to select/order numbers from a stored list, and that the Complaint plausibly pleads an ATDS at the pleading stage.
Motion to dismiss denied; the court left factual disputes about the dialing technology for summary judgment/discovery.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Complaint plausibly alleges use of an ATDS under 47 U.S.C. § 227(a)(1) and Duguid	Alleged use of Five9 which uses random/sequential number generation to order and store leads and then dials the stored order—constitutes ATDS	Duguid requires a number generator that produces telephone numbers themselves; merely ordering a preproduced list is not an ATDS	Court: Denied dismissal. An ATDS can include systems that use a random/sequential generator to select/order numbers from a stored list; allegations are sufficient at pleading stage
Proper scope of Duguid and significance of Footnote 7	Footnote 7 contemplates RNGs used to determine order from a preproduced list—supports plaintiff’s theory	Defendant reads Duguid narrowly to exclude list-ordering RNGs and treats Footnote 7 as non-expansive dicta	Court: Gave weight to Duguid’s Footnote 7 and found it persuasive, not limiting the ATDS definition to only generators that create phone numbers
Whether pleading-stage factual specificity about dialing technology is required	Plaintiff: detailed allegations about Five9’s capabilities are enough; precise technical proof lies with defendant and is appropriate for discovery	Defendant: plaintiff must allege the generator produced telephone numbers (or show technology meets Duguid) or dismissal is warranted	Court: At pleading stage, plaintiff’s factual allegations are sufficient; precise verification reserved for summary judgment/discovery
Whether statutory/contextual concerns (e.g., implicating cell phones) bar plaintiff’s reading of ATDS	Defendant: broad reading could sweep modern devices and create absurd results; statutory context supports narrow reading	Plaintiff: statutory text and Duguid’s Footnote 7 avoid overbreadth; limiting to systems that use RNGs to select/order numbers still captures harmful autodialers	Court: Rejected defendant’s policy argument as misapplied here and found defendant’s narrow reading could produce undesirable results the TCPA sought to prevent

Key Cases Cited

Facebook Inc. v. Duguid, 141 S. Ct. 1163 (2021) (Supreme Court construing the TCPA’s ATDS definition and discussing systems that store or produce numbers)
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (pleading must state a plausible claim)
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (legal conclusions not entitled to assumed truth at pleading stage)
Casanova v. Ulibarri, 595 F.3d 1120 (10th Cir. 2010) (pleading standard summary in Tenth Circuit)
Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158 (10th Cir. 2007) (requirements for adequate factual pleading)
Forest Guardians v. Forsgren, 478 F.3d 1149 (10th Cir. 2007) (court’s duty to assess whether complaint alleges facts supporting entitlement to relief)
Montanez v. Future Vision Brain Bank, LLC, 536 F. Supp. 3d 828 (D. Colo. 2021) (denying dismissal where autodialer allegedly used RNG to select from stored list)
Libby v. Nat’l Rep. Sen. Comm., 551 F. Supp. 3d 724 (W.D. Tex. 2021) (pleading-stage sufficiency for ATDS claims where plaintiff alleges calls from system that selects from stored lists)
BFP v. Resolution Trust Corp., 511 U.S. 531 (1994) (canon against rendering statutory text superfluous)