In Kristensen v. Credit Payment Services Inc., 2013 WL 686492 (D.Nev. 2013), Judge Dawson found that Plaintiff’s bald recitation of the elements of a text-message TCPA claim was sufficient to survive an FRCP 12(b)(6) Motion.
Plaintiff’s complaint alleges that Defendant Credit Payment Services Inc. (“Defendant”), directly or through its agents, caused or directed unsolicited SMS text messages to be sent to thousands of consumers, including Plaintiff without his authorization. Plaintiff alleges that these facts demonstrate that Defendant violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227(b)(1)(A)(iii). Plaintiff’s complaint also makes class action allegations, though a motion to certify the class has yet to be filed. Defendant has now moved to dismiss the action. ¶ . . . Defendant argues that Plaintiff has failed to allege the facts necessary to establish diversity or subject-matter jurisdiction. However, jurisdiction is appropriate, because the Court has jurisdiction over claims that arise under federal law. See 28 U .S.C. § 1331; Mims v. Arrow Financial Servs., LLC, 132 S.Ct. 740, 753 (2012)(state and federal courts have concurrent jurisdiction over TCPA claims). Federal law gives rise to the claims for relief asserted by Plaintiff, therefore, federal question jurisdiction exists and the Court need not consider diversity. ¶ Further Defendant argues that Plaintiff has not asserted sufficient facts to state a claim against it. To state a claim for a violation of the TCPA, Plaintiff must allege that a defendant: (1) made text message calls; (2) using any “automatic telephone dialing system;” (3) to a telephone number assigned to cellular telephone service. See 47 U.S.C. § 227(b)(1)(A)(iii). Here, Plaintiff has made the necessary factual allegations to state a claim in his complaint. Here, Plaintiff has alleged that Defendant, or its agents, made text message calls using an automatic telephone dialing system to a cellular telephone number. Those facts are enough to make a short and plain statement showing that Plaintiff is entitled to relief. See Twombly, 555 U.S. at 570. ¶ Next, Defendant argues that Plaintiff has named the wrong defendant in this action. However, Defendant’s argument requires the Court to make factual findings in opposition to the material allegations of the complaint. A motion to dismiss is the wrong vehicle in which to bring these arguments. The Court will not convert the motion to dismiss into a motion for summary judgment since Plaintiff has not had the opportunity to conduct discovery.