United States District Court, Southern District of Alabama, Southern Division
WILLIAM H. STEELE, UNITED STATES DISTRICT JUDGE
previous order, the Court denied the three movants'
motion to dismiss with respect to Counts Three, Four, Five
and Seven. (Doc. 60 at 11). With respect to Count Two - the
only other count made the basis of the movants' motion -
the Court granted the motion as to defendant Stoneleigh.
(Id.). As to the other two movants, the Court left
the motion to dismiss Count Two pending, awaiting an amended
complaint that the plaintiff represented would moot the
movants' objections - a procedure to which the movants
did not object. (Id. at 5, 11). The plaintiff
thereafter filed an amended complaint. (Doc. 63). The parties
filed supplemental briefs addressing the adequacy of the
amended Count Two, (Docs. 67, 71), and the motion to dismiss
Count Two is now ripe for resolution.
Two asserts a claim under the Telephone Consumer Protection
Act (“TCPA”). The movants argued that Count Two
failed to satisfy the plausibility standard of Rule 8(a) as
construed by the Supreme Court. In particular, the movants
argued that the complaint failed to allege facts supporting
its assertions: (1) that some or all of the movants'
collection calls were made using an automatic telephone
dialing system (“ATDS”); and (2) that the
movant's calls were made willfully and/or knowingly so as
to support an award of treble damages. (Doc. 60 at 4-5). The
amended complaint addresses both challenges.
amended complaint asserts that, “[w]hen Plaintiff would
answer the calls from [the movants], there would often be a
silence, sometimes with a click or a beep-tone, before a
representative would pick up and start speaking. This is a
tell-tale indication that the call was placed through an
ATDS.” (Doc. 63 at 5). The amended complaint also
asserts that, “[w]hen she was called by these debt
collectors, Plaintiff explained that the debt had been
satisfied and the lien released and she asked that they stop
calling her, thereby revoking any prior consent to receive
calls and notifying [the movants] that there was no consent
for the calls.” (Id. at 5-6).
movants do not argue that these allegations fail to attain
the plausibility standard, and it is patently obvious that
they do satisfy the standard as articulated by the movants
themselves. The movants acknowledge that the use of an ATDS
would be plausibly alleged by “any indicia of an
auto-dialed call, such as any sounds, beeps, pauses, or
robotic noises.” (Doc. 29 at 4). They also acknowledge
that the mental state required to support an award of treble
damages would be plausibly alleged by some “basis
… for thinking that [the movants] knew that [they] did
not have Plaintiff's consent to call her.”
(Id. at 5). What the movants demand is precisely
what the amended complaint alleges.
movants are nevertheless unsatisfied because, they believe,
the new allegations cannot be trusted. First, “[i]t is
dubious at best that Plaintiff would have left such key
details of specific conversations out of her original
Complaint.” (Doc. 67 at 3). Second, they insist the
description of the alleged ATDS calls “should be
completely disregarded” because “it is lifted
word-for-word from” the complaint in a recent TCPA case
in California and therefore “is not an account of
anything that may have happened to” the plaintiff,
(id. at 2); the movants continue that the
allegations of what the plaintiff told the movant's
representatives is somehow derivatively tainted by this
plagiarism and must therefore be “ignore[d].”
(Id. at 3).
movants are clutching at air. As their own authority states,
the plausibility standard requires a court to “tak[e]
as true” a complaint's factual allegations,
“even if it strikes a savvy judge that actual proof of
those facts is improbable.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 556 (2007). The mere fact (if it
be a fact) that the allegations of the amended
complaint regarding use of an ATDS mirror those of another
case does not prove - or even suggest - that the language
does not describe the plaintiff's experience. Nor does
the omission of allegations from an original complaint prove
- or even suggest - that the amended complaint's addition
of such allegations (at the movants' insistence) is
movants have come dangerously close to accusing
plaintiff's counsel of violating Rule 11, although they
have presented nothing that could remotely support such an
accusation. That is not an acceptable practice in this
District. The movants remain free to file any properly
supported motion under Rule 11, but they are cautioned not to
cast aspersions on the integrity of opposing counsel absent
such a motion.
reasons set forth above, the remaining movants' motion to
dismiss Count Two is denied.
 The Court did not, as the movants
assert, grant their motion to dismiss Count Two with leave to
amend. (Doc. 67 at 2).
 The movants purport to quote from the
California pleading but do not attach a copy of it to ...