District Court (Mich.) Applies 4-year SofL to TCPA Claim to Bar Recovery for Some Calls; Remaining Calls Were Actionable Due to Oral Revocation

Plaintiff’s TCPA claims regarding phone calls made prior to May 10, 2013 are time barred. TCPA claims are subject to a four-year statute of limitations. See 28 U.S.C. § 1658(a); see also Schumacher v. AK Steel Corp. Ret. Accumulation Pension Plan, 711 F.3d 675, 682 (6th Cir. 2013). Plaintiff contends that his claims are tolled because of the class action in Snyder v. Ocwen Loan Servicing, LLC, Case No. 1:14-cv-08461 (N.D. Ill.), but his argument is unpersuasive. In American Pipe & Construction Co. v. Utah, the Supreme Court established the doctrine for class-action tolling. 414 U.S. 538 (1974). The Supreme Court held that for federal actions, “the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.” Id. at 554. But in the Sixth Circuit, a plaintiff forfeits the benefit of class-action tolling by filing a separate suit before there is a decision on the motion for class certification. Keyes, 2017 WL 4918530, at *4 (citing Wyser-Pratte Mgmt. Co. v. Texlon Corp., 413 F.3d 553 (6th Cir. 2005)). Accordingly, Plaintiff’s claims did not toll and any TCPA claims arising from calls made before May 10, 2013—four years prior to Plaintiff’s May 10, 2017 filing date—are time barred. The Court will dismiss those claims.  B. Remaining TCPA Claims.  Plaintiff’s remaining TCPA claims survive the motion to dismiss. Defendant argues that Plaintiff has not properly pled revocation of consent because (1) the alleged oral requests to stop calling do not constitute revocation, and (2) Plaintiff’s allegations are not specific enough to adequately state a claim. Both arguments are without merit.  Although the TCPA and Sixth Circuit are silent on revocation, courts in this district have held that prior express consent under the TCPA is revocable via an oral statement on the phone. Keyes, 2017 WL 4918530, at *5–6; Currier v. PDL Recovery Grp., LLC, Case No. 14-12179, 2017 WL 712887, at *9–10 (E.D. Mich. Feb. 23, 2017). And a plaintiff does not need to allege specific dates and times of when he orally revoked consent. Keyes, 2017 WL 4918530, at *6. Rather, Plaintiff’s allegation that he told Defendant’s agent to stop calling on multiple occasions is plausible and sufficiently specific—especially when Defendant allegedly called over a thousand times in the span of several years. Id.