The Southern District of California recently dismissed the TCPA case Hildre v. Heavy Hammer, Inc., No. 3:20-cv-00236, 2021 WL 734431 (S.D. Cal. Feb. 25, 2021), for the plaintiff’s failure to adequately allege that the defendants had used an automatic telephone dialing system (“ATDS”) when placing calls.

The plaintiff alleged that the defendants called him using an ATDS without first obtaining his consent.  Specifically, he claimed that the out-of-state defendant called him twice using a California telephone number.  After the first call, plaintiff claimed that he asked to be removed from the call list.  When plaintiff received the second call, he alleges that there was a “noticeable pause” after he answered.

The defendants moved to dismiss arguing that the plaintiff had not sufficiently alleged facts to suggest that an ATDS was used to place the calls.  The court agreed.  It reasoned that, although it is common for a plaintiff to lack inside knowledge of a defendant’s internal operations or equipment, the allegations standing alone fell short.

The court explained that the plaintiff alleged only that there was a pause after he answered the second call and that the defendants used a California telephone number to mask their identity.  The court reasoned that, given the isolated nature of the calls, the allegation of a “pause” after answering did not raise the plaintiff’s allegation above a “speculative” level.  The court went on to state that it was not convinced that the defendants’ use of a California telephone number was at all relevant to the question of whether an ATDS was used.  The court dismissed the case, noting that the plaintiff might be able to cure the deficiencies in his complaint and granted him leave to amend.

While we await the Supreme Court’s decision in Facebook v.Duguid, which concerns the interpretation of the scope of the TCPA’s definition of an ATDS, decisions like this one highlight the importance of scrutinizing a complaint to determine whether allegations are adequate. Until we have clarity as to the Supreme Court’s view of what qualifies as an ATDS, TCPA defendants should continue to raise the issue of inadequate pleadings when a plaintiff’s allegations fall short.