Dimarco v. Nationstar Mortgage, Llc.

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

W.D.N.Y.October 18, 2016

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK DAVID DIMARCO, Plaintiff, vs. NATIONSTAR MORTGAGE, LLC., Defendant. Case No.: 6:16-cv-06588-EAW NOTICE OF MOTION PLEASE TAKE NOTICE that, upon the annexed Memorandum of Law, and all other papers and proceedings herein, Defendant Nationstar Mortgage, LLC (“Nationstar” or “Defendant”), by and through its undersigned counsel, will move this Court for an Order pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), dismissing the Complaint of Plaintiff David DiMarco for failure to state a claim upon which relief can be granted and for such other and further relief as this Court may deem just and proper. PLEASE TAKE FURTHER NOTICE that, Nationstar respectfully requests an opportunity to file reply papers, and respectfully requests oral argument if the Court deems it necessary. DATED: October 18, 2016 REED SMITH LLP By: /s/ Nana Japaridze Nana Japaridze 599 Lexington Avenue New York, New York 10022 (P) 212-549-0282 (F) 212-521-5450 njaparidze@reedsmith.com Attorneys for Defendant Case 6:16-cv-06588-EAW Document 9 Filed 10/18/16 Page 1 of 1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK DAVID DIMARCO, Plaintiff, vs. NATIONSTAR MORTGAGE, LLC., Defendant. Case No.: 6:16-cv-06588-EAW NOTICE OF MOTION PLEASE TAKE NOTICE that, upon the annexed Memorandum of Law, and all other papers and proceedings herein, Defendant Nationstar Mortgage, LLC (“Nationstar” or “Defendant”), by and through its undersigned counsel, will move this Court for an Order pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), dismissing the Complaint of Plaintiff David DiMarco for failure to state a claim upon which relief can be granted and for such other and further relief as this Court may deem just and proper. PLEASE TAKE FURTHER NOTICE that, Nationstar respectfully requests an opportunity to file reply papers, and respectfully requests oral argument if the Court deems it necessary. DATED: October 18, 2016 REED SMITH LLP By: /s/ Nana Japaridze Nana Japaridze 599 Lexington Avenue New York, New York 10022 (P) 212-549-0282 (F) 212-521-5450 njaparidze@reedsmith.com Attorneys for Defendant Case 6:16-cv-06588-EAW Document 9-1 Filed 10/18/16 Page 1 of 19 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK DAVID DIMARCO, Plaintiff, vs. NATIONSTAR MORTGAGE, LLC., Defendant. Case No.: 6:16-cv-06588-EAW MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS REED SMITH LLP 599 Lexington Ave. New York, New York 10022 (212) 521-5400 Attorneys for Defendant Case 6:16-cv-06588-EAW Document 9-1 Filed 10/18/16 Page 2 of 19 - i - TABLE OF CONTENTS Page PRELIMINARY STATEMENT .....................................................................................................1 STATEMENT OF RELEVANT FACTS ........................................................................................2 ARGUMENT ...................................................................................................................................3 I. PLAINTIFF’S COMPLAINT FAILS TO SATISFY THE MOTION TO DISMISS STANDARD .......................................................................................................3 II. PLAINTIFF FAILS TO STATE A CLAIM UNDER THE FDCPA ..................................5 A. Defendant Is Not A Debt Collector Under the FDCPA ...........................................5 B. Some of Plaintiff’s FDCPA Claims Are Time-Barred ............................................7 III. PLAINTIFF FAILS TO SUFFICIENTLY PLEAD THE TCPA CLAIM ..........................8 A. Plaintiff Did Not Sufficiently Allege that Defendant Used ATDS ..........................8 B. Plaintiff Lacks Standing to Assert his TCPA Claims in the Absence of an Injury in Fact ..........................................................................................................10 CONCLUSION ..............................................................................................................................13 Case 6:16-cv-06588-EAW Document 9-1 Filed 10/18/16 Page 3 of 19 - ii - TABLE OF AUTHORITIES Page(s) Cases Aikens v. Synchrony Fin., No. 15-cv-10058, 2015 WL 5818911 (E.D. Mich. July 31, 2015) ............................................9 Air Atlanta Aero Eng’g Ltd. v. SP Aircraft Owner I, LLC, 637 F. Supp. 2d 185 (S.D.N.Y. 2009) ........................................................................................3 Alibrandi v. Fin. Outsourcing Servs., Inc., 333 F.3d 82 (2d Cir. 2003).........................................................................................................6 Ashcroft v. Iqbal, 556 U.S. 662 (2009) .........................................................................................................3, 9, 10 Barnanski v. NCO Fin. Sys., Inc., No. 13 CV 6349(ILG)(JMA), 2014 WL 1155304 (E.D.N.Y. Mar. 21, 2014) ..........................9 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ...............................................................................................................3, 9 Bravo v. MERSCORP, Inc., No. 1:12-CV-844 (ENV)(LB), 2013 WL 4851697 (E.D.N.Y. Sept. 10, 2013).........................6 Briggs v. Wells Fargo Bank, N.A., No. 14-CV-1759 (RRM)(JMA), 2015 WL 1014184 (E.D.N.Y. Mar. 6, 2015) .........................7 Chambers v. Time Warner, Inc., 282 F.3d 147 (2d Cir. 2002).......................................................................................................3 Doherty v. Citibank (S.D.) N.A., 375 F. Supp. 2d 158 (E.D.N.Y. 2005) .......................................................................................5 Ewing v. SQM US, Inc., No. 3:16-CV-1609-CAB-JLB, 2016 WL 5846494 (S.D. Cal. Sept. 29, 2016) .............4, 11, 12 Gardner v. Credit Mgmt., L.P., No. 8:14-CV-1677-T-17EAJ, 2015 WL 1235037 (M.D. Fla. Mar. 17, 2015) ..........................9 Jones v. FMA Alliance Ltd., 978 F. Supp. 2d 84 (D. Mass. 2013) ........................................................................................10 Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) .................................................................................................................10 Case 6:16-cv-06588-EAW Document 9-1 Filed 10/18/16 Page 4 of 19 - iii - Makarova v. United States, 201 F.3d 110 (2d Cir. 2000).......................................................................................................4 Martin v. Direct Wines, Inc., No. 15 C 757, 2015 WL 4148704 (N.D. Ill. July 9, 2015) ........................................................9 Muia v. Brookview Rehab Funding, LLC, No. 1:10-CV-1315, 2012 WL 1014753 (N.D.N.Y. Mar. 23, 2012) ..........................................4 Muniz v. Bank of Am., N.A., No. 11 Civ. 8296 (PAE), 2012 WL 2878120 (S.D.N.Y. July 13, 2012) ...................................7 Papetti v. Rawlings Fin. Servs., LLC, No. 15 Civ. 2933 (PAE), 2016 WL 4030863 (S.D.N.Y. July 25, 2016) ...................................6 Rent Stabilization Ass'n of City of New York v. Dinkins, 5 F.3d 591 (2d Cir. 1993) ..........................................................................................................4 Romero v. Department Stores National Bank, No. 15-CV-193-CAB-MDD, 2016 WL 4184099 (S.D. Cal. Aug. 5, 2016) ..................1, 11, 12 Roth v. Citimortgage, Inc., 756 F.3d 178 (2d Cir. 2014).......................................................................................................6 Sartin v. EKF Diagnostics, Inc., Civ. A. No. 16-1816, 2016 WL 3598297 (E.D. La. July 5, 2016)...........................................12 Sniado v. Bank Austria AG, No. 00 Civ. 9123 (AGS), 2001 WL 812236 (S.D.N.Y. July 18, 2001) .....................................4 Snyder v. Perry, No. 14-CV-2090 (CBA)(RER), 2015 WL 1262591 (E.D.N.Y. Mar. 18, 2015) .......................9 Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) ...................................................................................................1, 10, 11 Thomas v. Am. Serv. Fin. Corp., 966 F. Supp. 2d 82 (E.D.N.Y. 2013) .........................................................................................7 Trumper v. GE Capital Retail Bank, No. 2:14-cv-01211 (WJM), 2014 WL 7652994 (D.N.J. July 7, 2014) ......................................9 Wright v. Zabarkes, 347 F. App’x 670 (2d Cir. 2009) ...............................................................................................7 Statutes 15 U.S.C. § 1692a(6) .......................................................................................................................5 Case 6:16-cv-06588-EAW Document 9-1 Filed 10/18/16 Page 5 of 19 - iv - 15 U.S.C. § 1692a(6)(F)(iii) ............................................................................................................5 15 U.S.C. § 1692k(d) .......................................................................................................................7 47 U.S.C. § 227(b)(1)(A) .................................................................................................................8 47 U.S.C. § 227(b)(1)(A)(iii) ...........................................................................................................8 Rules Fed. R. Civ. P. 8(a) ..........................................................................................................................5 Fed. R. Civ. P. 8(a)(2) ......................................................................................................................3 Fed. R. Civ. P. 12(b)(1)............................................................................................................1, 4, 5 Fed. R. Civ. P. 12(b)(6)............................................................................................................1, 3, 4 Fed. R. Civ. P. 12(h)(3)....................................................................................................................4 Other Authorities U.S. Const. art. III, § 2 ...................................................................................................................10 Case 6:16-cv-06588-EAW Document 9-1 Filed 10/18/16 Page 6 of 19 - 1 - PRELIMINARY STATEMENT Defendant Nationstar Mortgage, LLC (“Nationstar” or “Defendant”), respectfully submits this Memorandum of Law in support of its Motion, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), to dismiss the Complaint (“Complaint”) of Plaintiff David DiMarco (“Plaintiff”) for failure to state a claim upon which relief can be granted. Plaintiff alleges that Nationstar, a servicer of his mortgage loan, violated the Fair Debt Collection Practices Act (“FDCPA”) and the Telephone Consumer Protection Act (“TPCA”) by contacting Plaintiff by telephone and mail regarding his loan. Plaintiff’s Complaint fails to state a single cause of action and should be dismissed for the following reasons. First, Plaintiff’s FDCPA claims should be dismissed because Defendant, as a servicer of Plaintiff’s loan, does not fall under the statutory definition of “debt collector” and is therefore exempt from FDCPA liability. In addition, Plaintiff’s claims are time barred by the FDCPA’s one-year statute of limitations to the extent they accrued prior to August 23, 2015. Second, Plaintiff’s TCPA claims fail because he has not sufficiently plead that Defendant placed any calls to him using an automatic telephone dialing system (“ATDS”) - an essential element of any TCPA claim. Plaintiff’s Complaint is defective on its face as it merely alleges - without any support - that Defendant used an ATDS. Such a bare and conclusory assertion, which merely parrots the statutory language, is insufficient as a matter of law to state a claim under the TCPA. Lastly, Plaintiff lacks standing to assert TCPA claims without putting forth evidence that he suffered an injury in fact as to each individual call. Based on the recent holding by the United States Supreme Court in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), and subsequent district court decisions like Romero v. Department Stores National Bank, No. 15-CV-193-CAB-MDD, Case 6:16-cv-06588-EAW Document 9-1 Filed 10/18/16 Page 7 of 19 - 2 - 2016 WL 4184099 (S.D. Cal. Aug. 5, 2016), an alleged statutory TCPA violation alone is not sufficient to establish the injury-in-fact requirement of Article III and confer standing on a plaintiff. For all of these reasons, Defendant’s Motion to Dismiss should be granted and Plaintiff’s Complaint should be dismissed in its entirety with prejudice. STATEMENT OF RELEVANT FACTS Plaintiff alleges that Defendant, the servicer of Plaintiff’s mortgage loan since 2013, violated the FDCPA and the TCPA by contacting Plaintiff regarding his mortgage. More specifically, Plaintiff alleges that he defaulted on his mortgage loan on or about 2005 and thereafter filed for Chapter 7 bankruptcy. See Complaint (“Compl.”) at ¶¶ 19-20. Plaintiff alleges that his personal obligation to pay back the mortgage loan was discharged in 2006, but does not - and cannot - allege that the discharge in bankruptcy eliminated the mortgage lien on Plaintiff’s property. Id. at ¶ 21. In or about October 2013, Nationstar became the servicer of Plaintiff’s mortgage. Id. at ¶ 25. Plaintiff does not allege that the loan was in default at the time it was transferred to Nationstar for servicing. As part of servicing Plaintiff’s loan, Nationstar communicated with Plaintiff via telephone and mail. Id. at ¶¶ 25, 31-35. Plaintiff alleges, in a conclusory fashion and without any factual support whatsoever, that these routine communications caused him emotional distress. Id. at ¶ 36. As set forth in detail below, Plaintiff’s conclusory allegations, which simply parrot the statutory language, fall short of stating a claim under either the FDCPA or TCPA. Plaintiff has failed to provide any factual support to sufficiently allege his standing to bring the claims herein Case 6:16-cv-06588-EAW Document 9-1 Filed 10/18/16 Page 8 of 19 - 3 - or to state a claim for Defendant’s liability under these statutes. Accordingly, Plaintiff’s Complaint should be dismissed. ARGUMENT I. PLAINTIFF’S COMPLAINT FAILS TO SATISFY THE MOTION TO DISMISS STANDARD On a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), a court must accept as true all of the well-pleaded factual allegations in the complaint, and draw all reasonable inferences in favor of the plaintiff. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). However, a court is not “‘bound to accept as true [any] legal conclusion couched as a factual allegation.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted); accord Air Atlanta Aero Eng’g Ltd. v. SP Aircraft Owner I, LLC, 637 F. Supp. 2d 185, 189 (S.D.N.Y. 2009). Indeed, as the United States Supreme Court instructed in Bell Atlantic Corp. v. Twombly, a pleading that offers only “labels and conclusions” or “a formulaic recitation of the elements of a cause of action” will not survive a motion to dismiss. 550 U.S. 544, 555 (2007). Nor will a complaint survive a motion to dismiss if it provides mere “naked assertion[s]” devoid of “further factual enhancement.” Id. at 557. Rather, to survive a motion to dismiss based on the sufficiency of the pleading, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Id. at 570. Accordingly, the relevant question is not whether any facts could be conjured up that would state a claim for relief, but whether sufficient facts have been pled in the first instance to support the alleged legal claims. Iqbal 556 U.S. at 677-84. A court should be mindful that “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not ‘show[n]’ - ‘that the pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). Case 6:16-cv-06588-EAW Document 9-1 Filed 10/18/16 Page 9 of 19 - 4 - The same is true for motion to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction when the allegations in the Complaint are insufficient on their face to invoke federal jurisdiction. Ewing v. SQM US, Inc., No. 3:16-CV-1609-CAB-JLB, 2016 WL 5846494, at *1 (S.D. Cal. Sept. 29, 2016). Dismissals for lack of standing should be made under procedural provision governing failure to state claim for relief under Rule 12(b)(6). Rent Stabilization Ass'n of City of New York v. Dinkins, 5 F.3d 591 (2d Cir. 1993); Sniado v. Bank Austria AG, No. 00 Civ. 9123 (AGS), 2001 WL 812236, at *1 (S.D.N.Y. July 18, 2001) (“‘A facial attack on the subject matter jurisdiction alleged by the complaint merely questions the sufficiency of the pleading. In reviewing such a facial attack, a trial court takes the allegations in the complaint as true, which is a similar safeguard employed under 12(b)(6) motions to dismiss.’”) (citation omitted). “If the court determines at any time that it lacks subject matter jurisdiction, the court must dismiss the action.” Muia v. Brookview Rehab Funding, LLC, No. 1:10-CV-1315 (LEK/RFT), 2012 WL 1014753, at *1 (N.D.N.Y. Mar. 23, 2012) (quoting Fed. R. Civ. P. 12(h)(3)); Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.”). Here, Plaintiff’s Complaint is rife with the “blanket assertions of entitlement to relief” against which the Twombly standard guards. When the Complaint is stripped of its legal conclusions and formulaic recitations of the elements of Plaintiff’s two causes of action, as is required by Iqbal, it is apparent that Plaintiff has offered no factual content that would allow a reasonable fact-finder to conclude that the Defendant is liable for either the FDCPA or the TCPA claims alleged in the Complaint. Accordingly, Plaintiff’s Complaint fails to satisfy Rule Case 6:16-cv-06588-EAW Document 9-1 Filed 10/18/16 Page 10 of 19 - 5 - 12(b)(6), Rule 12(b)(1) and Rule 8(a), as well as the specific pleading requirements of the statutes discussed below, and must be dismissed. II. PLAINTIFF FAILS TO STATE A CLAIM UNDER THE FDCPA Plaintiff makes unsupported and conclusory allegations that Defendant has violated the FDCPA. Plaintiff’s claim for violation of the FDCPA fails as a matter of law because (1) Defendant is exempt from FDCPA liability; and (2) Plaintiff’s claim is partially barred by the applicable one-year statute of limitations. A. Defendant Is Not A Debt Collector Under the FDCPA The FDCPA applies only to “debt collectors.” 15 U.S.C. § 1692a(6); Doherty v. Citibank (S.D.) N.A., 375 F. Supp. 2d 158 (E.D.N.Y. 2005) (granting motion to dismiss where the plaintiff did not allege that defendants were “debt collectors”). The FDCPA defines a “debt collector” as: [A]ny person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. 15 U.S.C. §1692a(6). The term “debt collector” under the FDCPA “does not include ... any person collecting or attempting to collect any debt owed ... to the extent such activity ... concerns a debt which was not in default at the time it was obtained by such person.” 15 U.S.C. § 1692a(6)(F)(iii). Plaintiff fails to allege any facts upon which Nationstar could be found to be a “debt collector” under the FDCPA. Plaintiff simply offers the conclusory allegation that Defendant is a “debt collector” under the FDCPA. Compl., ¶6. Plaintiff pleads no facts to support that Defendant regularly collects debts owed to another. Consistent with the statutory definition, the FDCPA is not applicable to a creditor or its servicer seeking to recover a debt, which it acquired Case 6:16-cv-06588-EAW Document 9-1 Filed 10/18/16 Page 11 of 19 - 6 - prior to default. See e.g. Roth v. Citimortgage, Inc., 756 F.3d 178 (2d Cir. 2014) (affirming dismissal of FDCPA claim against mortgage servicer). As a servicer of Plaintiff’s debt, Nationstar is exempt from FDCPA liability because mortgage servicers are expressly exempted as long as the subject debt was not in default when acquired by the servicer. Bravo v. MERSCORP, Inc., No. 1:12-CV-844 (ENV)(LB), 2013 WL 4851697, at *3 (E.D.N.Y. Sept. 10, 2013) (“the exemption extends to mortgage servicing companies that service debt for others so long as the debt was not in default when it was taken for servicing”). Plaintiff does not allege that his loan was in default at the time the loan was transferred to Nationstar for servicing in 2013. Plaintiff does not even allege that his loan payments were overdue. Compl.,¶25. A loan that is not in default, even if a payment on a loan is late, is not sufficient to trigger FDCPA liability for the servicer who received assignment of such a loan for continued servicing. See, e.g., Alibrandi v. Fin. Outsourcing Servs., Inc., 333 F.3d 82, 86 (2d Cir. 2003) (“In applying the FDCPA, courts have repeatedly distinguished between a debt that is in default and a debt that is merely outstanding, emphasizing that only after some period of time does an outstanding debt go into default.”); Papetti v. Rawlings Fin. Servs., LLC, No. 15 Civ. 2933 (PAE), 2016 WL 4030863 (S.D.N.Y. July 25, 2016) (“The Second Circuit has held that a debt is not ‘in default’ merely because it is due. Instead, ‘only after some period of time does an outstanding debt go into default.’ The Second Circuit has not identified this period of time, beyond observing that ‘default does not occur until well after a debt becomes outstanding.’”) (citing Alibrandi, 333 F.3d at 86-87). Absent any factual allegations by Plaintiff as to why Defendant is a “debt collector” under the specific circumstances presented here - namely, absent any allegations that Plaintiff’s Case 6:16-cv-06588-EAW Document 9-1 Filed 10/18/16 Page 12 of 19 - 7 - debt was in default in 2013 when it was transferred to Nationstar for servicing - Plaintiff fails to state a cause of action under the FDCPA. See Briggs v. Wells Fargo Bank, N.A., No. 14-CV- 1759 (RRM)(JMA), 2015 WL 1014184, at *5 (E.D.N.Y. Mar. 6, 2015) (dismissing FDCPA claims after Plaintiff “offer[ed] a conclusory allegation that Wells Fargo is a debt collector, [but] set[] forth no specific facts to support this conclusion”). In Briggs, the court found that plaintiff’s claim was “insufficient to maintain a valid cause of action under the FDCPA” where, as in this case, he did “not claim that [defendant’s] principal business purpose is debt collection, or … that [defendant] acquired his debt after it was in default.” Id. See also Thomas v. Am. Serv. Fin. Corp., 966 F. Supp. 2d 82, 94-95 (E.D.N.Y. 2013) (dismissing FDCPA claims after plaintiff failed to allege that collection of debts was “the principal purpose of the Defendant’s business, as required by the FDCPA’s definition of ‘debt collector’” and conceded that the defendant “obtained the debt … before it was in default, which means the Defendant is excluded from the FDCPA’s definition of the term ‘debt collector’”); Muniz v. Bank of Am., N.A., No. 11 Civ. 8296 (PAE), 2012 WL 2878120, at *4-5 (S.D.N.Y. July 13, 2012) (servicer generally is not a debt collector under FDCPA). Accordingly, Plaintiff has failed to sufficiently allege that Nationstar is a “debt collector” under the FDCPA, and his FDCPA claims should be dismissed with prejudice. B. Some of Plaintiff’s FDCPA Claims Are Time-Barred Claims under the FDCPA must be brought within “one year from the date on which the violation occurs.” 15 U.S.C. § 1692k(d); Wright v. Zabarkes, 347 F. App’x 670, 671-72 (2d Cir. 2009). Plaintiff filed this action on August 23, 2016. (Dkt. 1). In it, Plaintiff complains of alleged calls beginning in 2013 and correspondence from Defendant dated January 9, 2015. Compl., ¶25, 31. The FDCPA’s one-year statute of limitations bars Plaintiff’s potential recovery Case 6:16-cv-06588-EAW Document 9-1 Filed 10/18/16 Page 13 of 19 - 8 - for any alleged violations prior to August 23, 2015. Accordingly, any such claims must be dismissed with prejudice for this additional reason. III. PLAINTIFF FAILS TO SUFFICIENTLY PLEAD THE TCPA CLAIM To state a claim under the TCPA for calling a cell phone, a plaintiff must sufficiently allege that: (1) the defendant called a cellular telephone number; (2) using an automatic telephone dialing system; (3) without the recipient's prior express consent. 47 U.S.C. § 227(b)(1)(A). Alleged calls to an individual’s cell phone are not enough to state a claim. Instead a plaintiff must allege sufficient facts that the calls were made “using any automatic telephone dialing system or an artificial or prerecorded voice.” 47 U.S.C. § 227(b)(1)(A)(iii). A. Plaintiff Did Not Sufficiently Allege that Defendant Used ATDS The TCPA provides in relevant part: It shall be unlawful for any person . . . to make any call (other than . . . with the prior express consent of the called party) using an automatic telephone dialing system . . . to any telephone number assigned to a . . . cellular telephone service . . . 47 U.S.C. § 227(b)(1)(A)(iii) (emphasis added). Accordingly, alleging sufficient facts that the calls were made “using any automatic telephone dialing system” is absolutely essential for a TCPA claim to survive a motion to dismiss. Plaintiff’s TCPA claims here must be dismissed because he provides no factual support for the conclusory allegation that Defendant used an ATDS to call to his cell phone. While Plaintiff’s Complaint alleges that Defendant “used, controlled and/or operated ‘automatic telephone dialing systems,’” it fails to allege any facts to supports that legal conclusion, which is merely copied from the statutory language of the TCPA. Compl., ¶¶13, 50. Such vague and conclusory statements fall short of asserting a claim against the Defendant under the TCPA and fail to satisfy the basic pleading requirements under the Federal Case 6:16-cv-06588-EAW Document 9-1 Filed 10/18/16 Page 14 of 19 - 9 - Rules and prevailing case law. Iqbal, 556 U.S. at 678 (While the Court must accept as true all factual allegations in the complaint in reviewing a motion to dismiss, it is “not bound to accept as true a legal conclusion couched as a factual allegation”) (quoting Twombly, 550 U.S. at 555). Where, as here, a plaintiff simply alleges that the defendant used an automatic telephone dialing system but provides “no factual allegations permitting such inference,” the TCPA claim must be dismissed. See Barnanski v. NCO Fin. Sys., Inc., No. 13 CV 6349(ILG)(JMA), 2014 WL 1155304, at *6 (E.D.N.Y. Mar. 21, 2014) (“Plaintiffs must do more than simply parrot the statutory language”); Snyder v. Perry, No. 14-CV-2090 (CBA)(RER), 2015 WL 1262591, at *8 (E.D.N.Y. Mar. 18, 2015) (granting motion to dismiss after plaintiff failed to set forth facts that made it plausible that defendant was using an ATDS). In fact, federal courts across the country have granted similar motions to dismiss where ATDS allegations were conclusory or lacking. See, e.g., Aikens v. Synchrony Fin., No. 15-cv- 10058, 2015 WL 5818911, at *4 (E.D. Mich. July 31, 2015) (granting defendant’s motion to dismiss under Iqbal on the grounds that the court “[could] not accept an assertion that an ATDS was used simply because Plaintiff states as much.”); Martin v. Direct Wines, Inc., No. 15 C 757, 2015 WL 4148704, at *2 (N.D. Ill. July 9, 2015) (granting defendant’s motion to dismiss plaintiff’s TCPA class action on the grounds that “[i]t is insufficient for plaintiff to simply parrot the language of the TCPA and conclusorily allege that defendants used an ATDS.”); Trumper v. GE Capital Retail Bank, No. 2:14-cv-01211 (WJM), 2014 WL 7652994, at *2 (D.N.J. July 7, 2014) (granting dismissal with prejudice of amended complaint where plaintiff made “only conclusory allegations that GE placed calls using an automatic telephone dialing system or an artificial or prerecorded voice”); Gardner v. Credit Mgmt., L.P., No. 8:14-CV-1677-T-17EAJ, 2015 WL 1235037, at *2 (M.D. Fla. Mar. 17, 2015) (holding that a “plaintiff is required to allege Case 6:16-cv-06588-EAW Document 9-1 Filed 10/18/16 Page 15 of 19 - 10 - facts sufficient to show plausibility, more than mere possibility” and dismissing TCPA claims because the Plaintiff failed to allege sufficient allegation concerning “the content of the telephone calls, or the circumstances that suggest that Defendant used an ATDS to make the telephone calls”); Jones v. FMA Alliance Ltd., 978 F. Supp. 2d 84, 87 (D. Mass. 2013) (holding that “[s]imply alleging the use of an ATDS, without more, is insufficient to sustain a TCPA claim”). Here, Plaintiff merely alleges that Defendant used an ATDS to place telephone calls to Plaintiff’s cellular telephone using an ATDS. Compl., ¶13, 50. These allegations are nothing more than “a legal conclusion couched as a factual allegation” and are insufficient to state a claim. Iqbal, 550 U.S. at 680. Accordingly, Plaintiff’s TCPA claim must be dismissed for failure to state a claim. B. Plaintiff Lacks Standing to Assert his TCPA Claims in the Absence of an Injury in Fact The requirement that a party have standing to bring suit flows from Article III of the Constitution, which limits the scope of the federal judicial power to the adjudication of “cases” or “controversies.” U.S. Const. art. III, § 2. Standing consists of three elements: (1) the plaintiff must have suffered an “injury in fact,” which is an invasion of a legally protected interest that is “concrete and particularized” and “actual or imminent”; (2) the injury must be “fairly traceable” to the challenged conduct of the defendant; and (3) it must be likely that plaintiff's injury will be redressed by a favorable judicial decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). As the party invoking federal jurisdiction, the plaintiff bears the burden of establishing each element of standing. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). In Spokeo, the U.S. Supreme Court focused on the “concrete” injury requirement for Article III standing. The Court found that a “‘concrete’ injury must be ‘de facto’; that is, it must Case 6:16-cv-06588-EAW Document 9-1 Filed 10/18/16 Page 16 of 19 - 11 - actually exist.” Spokeo, 136 S. Ct. at 1548. Therefore, a plaintiff does not “automatically satisf[y] the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right. Article III standing requires a concrete injury even in the context of a statutory violation.” Id. at 1549. In other words, a “bare procedural violation, divorced from any concrete harm,” does not satisfy the injury-in-fact requirement of Article III. Id. The court in Ewing v. SQM US, Inc., recently applied the Supreme Court’s Spokeo decision to dismiss a TCPA case with prejudice for lack of standing under Article III. In that case, the plaintiff alleged that he incurred a charge for unwanted calls to his cell phone, and further argued that he wasted his time answering the call and that his cell phone battery was depleted. 2016 WL 5846494, at *2. The court rejected all of these grounds for asserting a “concrete” injury under Spokeo, noting that none of these injuries were connected to the fact that the defendant had used an “automatic telephone dialing system” (ATDS) to call the plaintiff, which is required for a TCPA violation. Id. at *3. The court reasoned that the plaintiff “would have been no better off had Defendants dialed his number manually (in which case they would have refrained from violating the TCPA). He would have had to expend the same amount of time answering and addressing Defendants’ manually dialed telephone call and would have incurred the same amount of battery depletion.” Id. “In sum,” the court concluded, “to use the language from Spokeo, Plaintiff’s alleged concrete harm . . . was divorced from the alleged violation of the TCPA.” Id. The plaintiff therefore lacked standing to sue and his claim was dismissed with prejudice. Id. Likewise, in Romero v. Department Stores National Bank, 2016 WL 4184099, at *1, the plaintiff alleged that the defendants had violated the TCPA by calling her over 290 times. Case 6:16-cv-06588-EAW Document 9-1 Filed 10/18/16 Page 17 of 19 - 12 - According to the court, “[e]ach alleged violation is a separate claim, meaning that Plaintiff must establish standing for each violation, which in turn means that Plaintiff must establish an injury in fact caused by each individual call.” Id. at *3. The court found that the plaintiff in Romero failed to satisfy her burden of establishing “concrete” harm even though she had alleged that the calls caused her “anxiety, stress, headaches (requiring ibuprofen, over the counter health aides), back, neck and shoulder pain, sleeping issues (requiring over the counter health aids), anger, embarrassment, humiliation, depression, frustration, shame, lack of concentration, dizziness, weight loss, nervousness and tremors, family and marital problems that required counseling, amongst other injuries and negative emotions.” Id. at *1. The court pointed out that, “Although a defendant violates the TCPA by dialing a cell phone with an ATDS, it is possible that the recipient’s phone was not turned on or did not ring, that the recipient did not hear the phone ring, or the recipient for whatever reason was unaware that the call occurred.” Id. at *3. The court went on to find that, “even for the calls Plaintiff heard ring or actually answered, Plaintiff does not offer any evidence of a concrete injury caused by the use of an ATDS, as opposed to a manually dialed call.” Id. She therefore could not demonstrate that her alleged injury was sufficiently “concrete” to establish standing under Article III. Id. at *3-5. Likewise, here, Plaintiff’s boilerplate allegations that Defendant’s alleged phone calls “harassed, annoyed and abused [him], and disturbed her (sic) peace and tranquility” and “caused severe emotional distress,” are insufficient to establish the concrete injury necessary for plaintiff to have standing to bring a TCPA claim. Compl., ¶¶ 36, 47, 48. Plaintiff’s “failure to connect any of these claimed injuries in fact with any (or each) specific TCPA violation is alone fatal to Plaintiff's standing argument.” Romero, 2016 WL 4184099, at *4; Ewing, 2016 WL 5846494, at *3; see also Sartin v. EKF Diagnostics, Inc., Civ. A. No. 16-1816, 2016 WL 3598297, at *4 Case 6:16-cv-06588-EAW Document 9-1 Filed 10/18/16 Page 18 of 19 - 13 - (E.D. La. July 5, 2016) (“well-pleaded factual allegations in the complaint establish nothing more than a bare violation of the TCPA, divorced from any concrete harm …. Thus, [plaintiff] has failed to demonstrate a judicially-cognizable injury in fact, and his complaint must be dismissed.”). CONCLUSION For the foregoing reasons, Defendant’s Motion to Dismiss should be granted and Plaintiff’s Complaint should be dismissed with prejudice in its entirety, along with such other and further relief as the Court deems just, fair and equitable. DATED: October 18, 2016 REED SMITH LLP By: /s/ Nana Japaridze Nana Japaridze 599 Lexington Avenue New York, New York 10022 (P) 212-549-0282 (F) 212-521-5450 njaparidze@reedsmith.com Attorneys for Defendant Case 6:16-cv-06588-EAW Document 9-1 Filed 10/18/16 Page 19 of 19