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Shehan v. Wells Fargo Bank N.A.

United States District Court, N.D. Alabama, Eastern Division

November 3, 2014

JAMES SHEHAN, Plaintiff,
v.
WELLS FARGO BANK N.A., Defendant

For James Shehan, on behalf of himself and others similarly situated, Plaintiff: Gina DeRosier Greenwald, Michael Lewis Greenwald, LEAD ATTORNEYS, GREENWALD DAVIDSON PLLC, Boca Raton, FL.

For Wells Fargo Bank NA, Defendant: Divya S Gupta, Eric J Troutman, LEAD ATTORNEYS, SEVERSON & WERSON, Irvine, CA; R Frank Springfield, Ryan James Hebson, LEAD ATTORNEY, BURR & FORMAN LLP, Birmingham, AL.

Page 1207

MEMORANDUM OPINION AND ORDER

JOHN H. ENGLAND, III, UNITED STATES MAGISTRATE JUDGE.

Plaintiff James Shehan (" Shehan" ) initiated this putative class action[1] against Defendant Wells Fargo Bank, N.A. (" Wells Fargo" ) alleging claims under the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. (" TCPA" ). (Doc. 1). Wells Fargo now moves to stay the action contending the Federal Communications Commission (" FCC" ) has primary jurisdiction to determine " the central issue in this litigation." (Docs. 16). The motion is fully briefed and ripe for review. (Docs. 16, & 22). For the reasons stated more fully below, the motion, (doc. 16), is DENIED.

I. Factual Background

Shehan alleges Wells Fargo violated the TCPA by autodialing his cellular telephone number (for a non-emergency purpose) without his consent. ( See doc. 1 at 3-5). Section 227(b)(1)(A)(iii) of the TCPA sets forth restrictions on the use of automated telephone equipment and prerecorded voice calls, providing, in pertinent part, as follows:

It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States --
(A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice --
* * *
(iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call.

Wells Fargo contends the calls were not intentionally directed at Shehan, but were made in an attempt to call an individual named " Brasher" on the number he provided, with his express consent. (Doc. 17 at 1). Apparently, Brasher was the previous

Page 1208

holder of Shehan's cellular phone number but was no longer associated with the cellular phone number at the time Wells Fargo ...


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