In Hensarling v. Wells Fargo Bank, N.A., 2016 WL 775950, at *3-4 (E.D.Cal., 2016), Judge Mueller held that a TCPA Plaintiff must plead more that the definition of an ATDS — it must plead that it was used somehow, as in the existence of pauses or clicks.
Here, plaintiffs’ TCPA claim can advance only if plaintiffs have alleged sufficient facts regarding the use of an ATDS. Plaintiffs point to Thomas v. Dun & Bradstreet Credibility Corp., 100 F. Supp. 3d 937, 945–46 (C.D. Cal. 2015) and Knutson v. Reply!, Inc., No. 10-1267, 2011 WL 1447756, at *1 (S.D. Cal. Apr. 13, 2011) to support their argument they have stated a claim under the TCPA based on the use of an ATDS. Opp’n at 4–5. In Thomas, the plaintiff provided additional facts including a “pause” characteristic of the ATDS used, and defendant’s likely need for a “sophisticated phone system.” 2015 WL 4698398, at *6. Similarly, the plaintiff in Knutson also provided additional facts, allowing the court to draw reasonable inferences regarding the defendant’s alleged use of an ATDS, namely details such as: when the plaintiff called the number from which he received the call, there were no rings or responses, and when the plaintiff picked up the calls there also was no response after which the line would change over to another party a few seconds later. 2011 WL 1447756, at *1. In contrast, plaintiffs’ First Amended Complaint does not allege facts that allow this court to draw reasonable inference regarding defendant’s use of an ATDS. See Iqbal, 556 U.S. at 678.