In Reo v. Caribbean Cruise Line, Inc., 2016 WL 1109042, at *4 (N.D.Ohio, 2016), Judge Nugent held that a TCPA Plaintiff must plead some threshold facts to demonstrate that an ATDS was used.
Review of TCPA cases confirms that district courts are split as to the sufficiency of a plaintiff’s pleadings on the ATDS issue. See Aikens, supra; Padilla v. Whetstone Partners, LLC, 2014 WL 3418490 at *2 (S.D. FL 2014) and cases collected there. A few courts, recognizing the difficulty for a plaintiff to gather evidence regarding the type of ATDS used, find a general allegation that an ATDS or prerecorded voice was used, sufficient to survive a motion to dismiss. Torres v. Nat’l Enter. Sys., Inc., 2012 WL 3245520, *3 (N.D. Ill. Aug. 7, 2012). Many more courts require a plaintiff, in addition to reciting the statutory language, to include additional factual allegations indicating the reasons for the plaintiff’s belief that an ATDS or prerecorded voice was used. See Johansen v. Vivant, Inc., 2012 WL 6590551, *3 (N-D. Ill. Dec. 18, 2012) (dismissing complaint when plaintiff failed to enhance the complaint with anything more than the language already available in the statute.) Baranski v. NCO Fin. Sys., Inc., 2014 WL 1155304, at *6 (E.D.N.Y. Mar. 21, 2014)(holding that “Plaintiffs must do more than simply parrot the statutory language” defining ATDS and noting that the “vast majority of courts to have considered the issue have found that “a bare allegation that defendants used an ATDS is not enough”) This Court is persuaded by the majority of courts who require some additional factual allegations, no matter how minor, in addition to parroting the language of the statute. Here, Plaintiffs merely state that they received a “significant number of phone calls” to “solicit CCL’s services. There is no description of the content of the calls (or texts) and no information regarding the frequency of the calls or why they believed that an ATDS was used or why they believed that an “artificial or prerecorded voice” was used such as a period of “dead air” after answering a call or the inability to interrupt a message or to talk to a human being. Because supporting factual allegations were not alleged in the SAC, Plaintiffs have not stated a plausible claim for relief under the TCPA.