Southern District of New York Holds TCPA Claim Fails To Satisfy Minimum Pleadings Requirements When Simply Parroting Statute

Lazar Shcherb v. Angi Homeservices, Inc., 19-cv-367 (S.D.N.Y. Oct. 25, 2019)

Plaintiff filed suit against various corporate defendants alleging that they used an automatic telephone dialing system (ATDS) to call his cell phone in violation of the Telephone Consumer Protection Act (TCPA) contending that, “[u]pon information and belief,” “when Defendants made these calls, [they] used equipment that had the capacity to store or produce telephone numbers . . . using a random or sequential number generator and/or a predictive dialer” with the capacity to dial such numbers.”

Concluding that this allegation was defective, the Court held that the Complaint “must be dismissed because it does not adequately allege that Defendants used an automatic telephone dialing system [. . .] Plaintiff’s complaint merely parrots the statutory language. The complaint avers, ‘[u]pon information and belief,’ that Defendant ‘used equipment that had the capacity to store or produce telephone numbers to be called and/or texted, using a random or sequential number generator and/or predictive dialer, with the capacity to dial such numbers.’ The complaint contains no other factual content in support of this naked assertion. It must, therefore, be dismissed.”

In reaching the conclusion that dismissal was proper, the Court, citing various cases, recognized that while there is no binding precedent in the Second Circuit on this issue, the “vast majority of courts to have considered the issue have found that ‘a bare allegation that defendants used an ATDS is not enough.’”

About The TCPA Blog

Email/Comment Policy

Disclaimer

Burr
Jump to Page
Arrow icon Top

Contact Us

We use cookies to improve your website experience, provide additional security, and remember you when you return to the website. This website does not respond to "Do Not Track" signals. By clicking "Accept," you agree to our use of cookies. To learn more about how we use cookies, please see our Privacy Policy.

Necessary Cookies

Necessary cookies enable core functionality such as security, network management, and accessibility. These cookies may only be disabled by changing your browser settings, but this may affect how the website functions.


Analytical Cookies

Analytical cookies help us improve our website by collecting and reporting information on its usage. We access and process information from these cookies at an aggregate level.