United States District Court, W.D. New York
THOMAS JENNINGS, individually and on behalf of all others similarly situated, Plaintiff,
CONTINENTAL SERVICE GROUP, INC., doing business as ConServe, and DOES 1-10, INCLUSIVE, Defendants.
DECISION AND ORDER
ELIZABETH A. WOLFORD United States District Judge
Thomas Jennings ("Plaintiff), individually and on behalf
of others similarly situated, brings this action against
Defendants Continental Service Group, Inc.
("Defendant") and Does 1-10, alleging violations of
the Telephone Consumer Protection Act, 47 U.S.C. §§
227 et seq. ("TCPA") and the Fair Debt
Collection Practices Act, 15 U.S.C. §§ 1692 et
seq. ("FDCPA"). (Dkt. 8). Presently before the
Court is Defendant's motion for judgment on the
pleadings. (Dkt. 21). For the reasons stated below,
Defendant's motion is denied, except to the extent that
Plaintiffs FDCPA claim is dismissed without prejudice and
Plaintiff is granted leave to replead.
is a "debt collection agency specializing in the
collection of student loan debts." (Dkt. 8-1 at
¶ 10). Defendant "placed debt collection calls to
Plaintiff at a harassing and unfair rate" (id.
at ¶ 13)-up to four calls a day. (Id. at ¶
19). The calls were made to Plaintiffs cellular telephone
using an "automatic dialing system." (Id.
at ¶ 12). The calls "were placed in an attempt to
collect an outstanding obligation allegedly owed by Plaintiff
to a third-party creditor. (Id. at ¶ 13). The
calls left a message for "Tom Jennings, " using an
artificially reproduced voice employing text-to-voice
technology. (Id. at ¶ 14). Defendant's
calls were not placed for emergency purposes, nor did
Defendant "have express consent to place calls using an
artificial or prerecorded voice to Plaintiffs cellular
telephone." (Id. at ¶¶ 16, 18).
Plaintiff alleges later in the amended complaint that
Defendant did not have "prior written express
consent" to make the calls. (Id. at
Standard of Review
on the pleadings may be granted under Fed.R.Civ.P. 12(c)
"where material facts are undisputed and where a
judgment on the merits is possible merely by considering the
contents of the pleadings." Sellers v. M.C. Floor
Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988).
"In deciding a Rule 12(c) motion, we apply the same
standard as that applicable to a motion under Rule 12(b)(6),
accepting the allegations contained in the complaint as true
and drawing all reasonable inferences in favor of the
nonmoving party." Burnette v. Carothers, 192
F.3d 52, 56 (2d Cir. 1999).
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) tests the legal sufficiency of the party's claim
for relief." Zucco v. Auto Zone, Inc., 800
F.Supp.2d 473, 475 (W.D.N.Y. 2011). A court should consider
the motion "accepting all factual allegations in the
complaint and drawing all reasonable inferences in the
plaintiffs favor." Ruotolo v. N.Y.C., 514 F.3d
184, 188 (2d Cir. 2008) (quoting ATSI Commc'ns, Inc.
v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)). To
withstand dismissal, a plaintiff must set forth "enough
facts to state a claim to relief that is plausible on its
face." BellAtl. Corp. v. Twombly, 550 U.S. 544,
a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, a plaintiffs
obligation to provide the 'grounds' of his
'entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do." Id. at 555
(citations omitted). Thus, "at a bare minimum, the
operative standard requires the plaintiff to provide the
grounds upon which his claim rests through factual
allegations sufficient to raise a right to relief above the
speculative level." Goldstein v. Pataki, 516
F.3d 50, 56-57 (2d Cir. 2008) (citations omitted).
Plaintiffs TCPA Claims
argues that Plaintiff fails to state a claim under the TCPA.
(Dkt. 21-1 at 4-6). The TCPA makes it unlawful for any person
in the United States to make a call "using any automatic
telephone dialing system or an artificial or prerecorded
voice ... to any telephone number assigned to a. . . cellular
telephone service, " unless it is for emergency purposes
or with "prior express consent." 47 U.S.C. §
227(b)(1)(A). "The [TCPA] creates a private right of
action, providing for statutory damages in the amount of $500
for each violation as well as injunctive relief against
future violations." Physicians Healthsource, Inc. v.
Boehringer Ingelheim Pharm., Inc., 847 F.3d 92, 94-95
(2d Cir. 2017). To state a claim under the TCPA, a plaintiff
must allege that: "(1) a call was placed to a cell or
wireless phone; (2) by the use of any automatic dialing
system [and/or leaving an artificial or prerecorded message]
and (3) without prior consent of the recipient." See
Echevvaria v. Diversified Consultants, Inc., No. 13 Civ.
4980(LAK)(AJP), 2014 WL 929275, at *4 (S.D.N.Y. Feb. 28,
2014) (citation omitted); see, e.g., Pugliese v. Prof I
Recovery Serv., Inc., No. 09-12262, 2010 WL 2632562, at
*7 (E.D.Mich. June 29, 2010).
Plaintiff has stated a claim. The amended complaint alleges
that Defendant made calls to Plaintiffs cell phone using
"a blended pre-recorded and artificial message."
(Dkt. 8-1 at ¶¶11-14)- Plaintiff further alleges
that the calls were not for emergency purposes, nor did
Plaintiff provide "express consent" for Defendant
to make calls to his cell phone using an artificial or
pre-recorded voice. (Id. at ¶¶ 16, 18).
Plaintiffs allegations are sufficient to raise the specter of
relief above the speculative level. Thus, Plaintiff has
sufficiently stated a claim under the TCPA.
to Defendant, the TCPA allows automated phone calls for debt
collection where there is prior consent to such calls. (Dkt.
21-1 at 5). Written consent is not required; oral consent can
be sufficient to allow for such calls. (Id.).
Defendant contends that because Plaintiff alleged in one part
of the amended complaint that no "prior ...