District Court (Mich.) Says TCPA Plaintiff Must Identify The Cellular Telephone Number Called

In Strand v. Corinthian Colleges, Inc., 2014 WL 1515494 (W.D.Mich. 2014), Judge Bell found that a TCPA Plaintiff must plead and identify the telephone number called in order to state a claim under the TCPA.

Plaintiff cites one case for the proposition that Rule 8 and the cases governing its application do not require her to plead the cellular telephone number Defendant allegedly called, Manfred v. Bennett Law, PLLC, No. 12–CV–61548, 2012 WL 6102071 (S.D.Fla. Dec. 7, 2012). (Pl.’s Resp., Dkt. No. 10 at 4.) The relevant statement in Manfred occurs in a footnote, where the court states:    Contrary to Bennett Law’s contention, Plaintiff need not allege his specific cellular telephone number. The statute simply states that the call must be made to “any telephone number assigned to a … cellular telephone service.” Bennett Law has provided no authority to support its position that Plaintiff’s complaint must disclose Plaintiff’s cell phone number.   Manfred, 2012 WL 6102071, at *2 n. 2. Likewise here, Defendant has not cited a specific authority on point that requires a plaintiff to plead her cellular telephone number. Nonetheless, the Court is convinced that proper application of Fed.R.Civ.P. 8, as applied in light of Iqbal and Twombly, supports such a requirement in TCPA cases. ¶  Specifically, a plaintiff is required to plead facts that make a defendant’s liability plausible. This means going beyond factual allegations that are merely consistent with a defendant’s liability. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). Here, Plaintiff’s complaint alleges that Defendant made calls to her cellular telephone and that such calls were made, to her knowledge, from an ATDS. Plaintiff also alleges numerous facts to bolster her contention that Defendant utilizes ATDS technology, arguably rasing that contention beyond the speculative level. ( See Am. Compl., Dkt. No. 7 ¶¶ 14–23.) However, the bare assertions in the complaint that the calls were placed to Plaintiff’s “cellular telephone,” ( id. ¶¶ 7, 8), are merely consistent with Defendant’s liability, but do not serve to put Defendant on notice of the grounds on which Plaintiff’s claim lies.  ¶  The plain language of the statute refers to calls placed to a “telephone number assigned to a … cellular telephone service.” 47 U.S.C. § 227(b)(1)(A)(iii) (emphasis added). A plain reading of the statute then, shows that to prove her case a plaintiff must prove that a defendant called a specific telephone number and that the telephone number was assigned to a cellular telephone service. Notice pleading, therefore, under Twombly and Iqbal, necessarily requires that a plaintiff plead the telephone number in question to “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 570. Otherwise, as Defendant argues, “[w]ithout the telephone number, TCPA defendants are forced to make educated guesses as to which telephone number belongs to a newly filed plaintiff.” (Def.’s Mot., Dkt. No. 9 at 5.)     ¶ Plaintiff’s “supplemental authority” (Dkt.Nos.11, 13) does not alter this Court’s conclusion. Plaintiff avers that each of these cases feature the same defendant (who is the defendant in the present case), and that Plaintiff’s counsel represents the plaintiffs in these “supplemental” cases. In each of these cases, the defendants moved to dismiss for failure to state a claim based on the fact the plaintiffs had not pled the specific date and time of each allegedly unlawful call. Each court held that such a pleading was not necessary. Neither court, however, addressed whether pleading the telephone number allegedly called was necessary in a TCPA claim. In fact, in the case from the Eastern District of Michigan (Dkt. No. 13), the plaintiff specifically pled her cellular telephone number. Therefore, the Court’s conclusion that a TCPA plaintiff must plead the telephone number assigned to a cellular telephone service that was allegedly called in order to state a claim upon which relief can be granted is unaltered.  ¶  Aside from a single reference to Manfred v. Bennett Law, PLLC, Plaintiff’s only other justification for omitting her telephone number is “privacy reasons.” (Am. Compl., Dkt. No. No. 7 at 2 n. 1.) However, if Plaintiff is concerned about the privacy of her telephone number, she can easily file it as an attachment under seal.