District Court (Cal.) Says TCPA Plaintiff Pleaded Enough

In Oleos v. Bank of America, 2016 WL 3092194, at *2 (S.D.Cal., 2016), the District Court found that a TCPA Plaintiff pleaded enough.

Courts facing a motion to dismiss on the grounds that the allegations of use of an ATDS are insufficient have taken two approaches. Maier, at *3. Under the first approach, courts allow a plaintiff to make minimal allegations at the complaint stage, permitting discovery to proceed on the issue of use of an ATDS, because the information is in the sole possession of the defendant. Id., citing In re Jiffy Lube Int’l Inc., Text Spam Litig., 847 F. Supp. 2d 1253, 1260 (S.D. Cal. 2012). Under the second approach, courts require more than the mere statutory language, requiring some factual allegations that would lead to the inference that an ATDS was used. Maier at *3, citing Kramer v. Autobytel, Inc., 759 F. Supp. 2d 1165, 1171 (N.D. Cal. 2010). Even under this second approach, Plaintiffs are generally allowed “to rely on indirect allegations, such as the content of the message, the context in which it was received, and the existence of similar messages, to raise an inference than an…[ATDS] was utilized. Prior to initiation of discovery, courts cannot expect more.” Maier at *3.    Under either approach, Plaintiff has made sufficient allegations that an ATDS was used in this case. The FAC alleges generally that Bank of America sent these text messages using an Automated Telephone Device System (“ATDS”). (FAC ¶22.) The FAC also alleges factual support for this allegation, stating that the messages were completely identical; they both were sent from “345-22,” which suggests the use of an ATDS; and they ended with the wording “Reply STOP to end texts.” (FAC ¶¶19, 20.) All of these facts support Plaintiff’s conclusory allegations that an ATDS was used, and sufficient indirect allegations allow discovery to proceed on this issue. Bank of America also argues that Plaintiff’s allegations of lack of prior consent are insufficient. Plaintiff argues this is an affirmative defense that need not be alleged in the Complaint. The Court disagrees, but finds that the allegations in the FAC that Plaintiff never gave her new cellular telephone number to Bank of American and never gave Bank of America express consent to send her text messages or call her cellular telephone (FAC ¶¶ 18, 22) are sufficient at this stage of the proceedings. Accordingly, the Court DENIES Bank of America’s Motion to Dismiss Count One.