Clark v. Allied Interstate Llc

REPLY BRIEF in further support of 8 MOTION to Dismiss

N.D. Ga.October 26, 2016

1 WPB 383858280 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION TANISHA CLARK, Plaintiff, ) ) ) ) CIVIL ACTION v. ) ) FILE NO. 1:16-CV-02409-MHC-RGV ALLIED INTERSTATE LLC, Defendant. ) ) ) REPLY IN FURTHER SUPPORT OF MOTION TO DISMISS Defendant Allied Interstate LLC (“Allied” or “Defendant”) hereby submits this Reply in Further Support of its Motion to Dismiss the Complaint filed by Plaintiff Tanisha Clark (“Plaintiff”) in the above-styled action, showing the Court as follows: I. Plaintiff’s FDCPA Claim Must Be Dismissed. As set forth in the Motion to Dismiss, Plaintiff filed her Fair Debt Collection Practices Act (FDCPA) claim well outside of the statute of limitiations. In her Response, Plaintiff does not dispute this and states that she will withdraw such claim. For these reasons, Plaintiff’s FDCPA claim must be dismissed. Case 1:16-cv-02409-MHC-RGV Document 15 Filed 10/26/16 Page 1 of 5 2 WPB 383858280 II. ‘Plaintiff’s TCPA Claim Must Be Dismissed. Plaintiff’s Telephone Consumer Protection Act (TCPA) claim is based on Defendant’s alleged use of an automated telephone dialing system (ATDS). Plaintiff admits her sole basis for such allegation is that she heard “an automated voice or pre-recorded message, [and] a click, beep, or delay prior to Ms. Clark having been connected to an operator.” Compl, ¶ 11, Response p. 5. As set forth in the Motion to Dismiss, courts throughout the 11th Circuit routinely reject TCPA claims based on such facts. Nonetheless, Plaintiff complains in her Response that she should be allowed to continue to assert a TCPA claim. Plaintiff complains in her Response that the cases cited by Defendant were decided on summary judgment or are otherwise not applicable here because they involve text messages. Not surprisingly, Plaintiff cites no cases where a Plaintiff was ultimately successful on a TCPA claim based on “facts” of an ATDS as alleged in the Complaint. Plaintiff appears resolved to force the parties and this Court to waste time and resources on her meritless claims.1 Nonetheless, in order to allay any concerns this Court may have, Defendant includes below a list of some additional cases involving TCPA claims that were 1 Indeed, Defendant has already been forced to defend Plaintiff’s meritless FDCPA claim which Plaintiff knew or should have known was void ab initio. Case 1:16-cv-02409-MHC-RGV Document 15 Filed 10/26/16 Page 2 of 5 3 WPB 383858280 dismissed upon a 12(b)(6) motion to dismiss, as there is clear precedent to do so notwithstanding Plaintiff’s arguments: • Hanley v. Green Tree Servicing, LLC, 934 F. Supp. 2d 977, 983 (N.D. Ill. 2013), on reconsideration (June 7, 2013) (dismissing TCPA claim where, as here, no allegations in complaint of dates of alleged ATDS calls or how many alleged ATDS calls made, and also no identification of date of alleged request to cease calls). • Hunter v. Diversified Consultants, Inc., No. 8:14-CV-2198-T-30, 2014 WL 6747153, at *1 (M.D. Fla. Nov. 26, 2014) (TCPA claim dismissed on 12(b)(6) motion; plaintiff’s claims of calls to cell phone without permission using ATDS insufficient). • Fleming v. Diversified Consultants, Inc., No. 8:14-CV-2196-T-30, 2014 WL 6747150, at *1 (M.D. Fla. Nov. 26, 2014) (TCPA claim dismissed on 12(b)(6) motion; plaintiff’s claims of calls to cell phone without permission using ATDS insufficient). • Brailey v. F.H. Cann & Associates, Inc., No. CIV. 6:14-0754, 2014 WL 7639909, at *9 (W.D. La. Dec. 5, 2014) (TCPA claim based on insufficient ATDS allegations in complaint dismissed on 12(b)(6) motion). Case 1:16-cv-02409-MHC-RGV Document 15 Filed 10/26/16 Page 3 of 5 4 WPB 383858280 There is ample case law holding that bare bones claims of a TCPA violation such as those in Plaintiff’s Complaint may be dismissed upon a 12(b)(6) motion. There is no case law holding that an automated voice followed by a click or beep is enough to establish use of an ATDS sufficient for a TCPA claim to ultimately succeed. WHEREFORE, for all the reasons set forth herein and in Defendant’s Motion to Dismiss and supporting Memorandum of Law, Defendant requests that the Court: (i) grant the Motion to Dismiss and the relief requested therein; (ii) dismiss this action, with prejudice; and (iii) grant Defendant such other and further relief as the Court deems just and proper. Counsel certifies that the foregoing has been prepared using Times New Roman font, 14 point, in accordance with Local Rules 5.1(C) and 7.1(D). Dated: September 26, 2016 Respectfully submitted, /s/ Charles H. Crawford III Charles H. Crawford III Georgia Bar No. 153073 GREENBERG TRAURIG, LLP Terminus 200 3333 Piedmont Road, N.E., Suite 2500 Atlanta, Georgia 30305 Telephone: 678-553-2100 Facsimile: 678-553-2212 crawfordc@gtlaw.com Attorney for Defendant Case 1:16-cv-02409-MHC-RGV Document 15 Filed 10/26/16 Page 4 of 5 5 WPB 383858280 CERTIFICATE OF SERVICE I hereby certify that I have this day filed the within and foregoing REPLY IN FURTHER SUPPORT OF MOTION TO DISMISS with the Clerk of Court using the CM/ECF System which will automatically send email notification of such filing to the following attorneys of record: Sumeet Shah, Esq. CENTRONE & SHRADER, PLLC 612 W. Bay St. Tampa, Florida 33606 sshah@centroneshrader.com Dated: September 26, 2016 /s/ Charles H. Crawford III Charles H. Crawford III Georgia Bar No. 153073 GREENBERG TRAURIG, LLP Terminus 200 3333 Piedmont Road, N.E., Suite 2500 Atlanta, Georgia 30305 Telephone: 678-553-2100 Facsimile: 678-553-2212 crawfordc@gtlaw.com Attorney for Defendant Case 1:16-cv-02409-MHC-RGV Document 15 Filed 10/26/16 Page 5 of 5