District Court (Conn.) Says Pro Per TCPA Plaintiff Plausibly Pleaded Use of an ATDS Because of Evidence of Pauses and Admission by Defendant that Calls Were “Automatic”

In Lundstedt v. Deutsche Bank National Trust Company, 2016 WL 3101999, at *5 (D.Conn., 2016), Judge Meyer allowed a TCPA case past the pleading stage where the Plaintiff could allege facts supporting the use of an ATDS.

Plaintiff did state at oral argument, however, that “you could tell it was a computer because you would be waiting and waiting and waiting …. [a]nd then somebody would come on.” Doc. #89 at 24. He also stated that some of the calls went to his cell phone. Id. In light of the liberal pleading standard that I must apply in favor of a pro se litigant, it is proper for me to consider these statements in assessing the sufficiency of plaintiff’s allegations. See Terio v. Carlin, 2010 WL 4117434, at *1 n.1 (S.D.N.Y. 2010) (considering the pro se plaintiff’s statements at oral argument in determining the meaning of the pleading); see also Platsky v. C.I.A., 953 F.2d 26, 28 (2d Cir. 1991) (pro se plaintiff should have been given leave to amend “inartfully pleaded” generalized allegations where his statements at oral argument made clear he had in mind “definite acts by which the defendants allegedly caused him harm”). In his response to the motions to dismiss, plaintiff also stated that the person on the other end of the line would say, “We can’t help [calling repeatedly] because it’s automatic.” Doc. #103 at 3; see also Flowers v. Ercole, 2009 WL 2986738, at *16 (S.D.N.Y. 2009) (considering factual statements made by pro se plaintiff in a memorandum of law as part of the record). These allegations raise a plausible inference that Chase was using an ATDS to call plaintiff on his cell phone.