Cupp v. ABC-Amega, Inc.

Background

Ronald Cupp, who proceeded without a lawyer, sued BDO USA, P.C. and ABC-Amega, Inc. He alleged that BDO purchased or took over an account belonging to AGC Enterprises, Inc. and demanded that Cupp pay $6,720. He alleged that BDO first made the demands by email and then by telephone, while ABC-Amega, a licensed collection agency, also called him. Cupp alleged that he received 13 calls in total—eight from BDO and five from ABC-Amega—and that he disputed the debt in writing and by telephone. He alleged that the collection efforts caused anxiety, headaches, loss of sleep, and humiliation.

Cupp asserted claims under the Telephone Consumer Protection Act (TCPA), the Fair Debt Collection Practices Act (FDCPA), and the California Fair Debt Collection Practices Act, also called the Rosenthal Act. BDO moved to dismiss for failure to state a claim, and ABC-Amega joined that motion.

FDCPA and Rosenthal Act Claims

The court held that FDCPA and Rosenthal Act claims have a one-year statute of limitations. Cupp alleged that the calls occurred between May 2022 and December 2022, and he conceded in his opposition that the limitations period had expired when he filed the complaint in October 2024. The court therefore dismissed those claims with prejudice.

TCPA Claim

The court addressed Cupp’s remaining TCPA claim. To state a claim under the provision at issue, Cupp had to allege that the defendants called a cellular telephone number using an automatic telephone dialing system (ATDS) without his prior express consent. An ATDS is equipment that can store or produce telephone numbers using a random or sequential number generator and dial those numbers.

The court found that Cupp did not provide enough factual allegations to support a reasonable inference that an ATDS was used. His allegation that the defendants used an ATDS was only a conclusory statement repeating an element of the claim. The court also noted that his factual allegations suggested that live operators specifically targeted him, which was inconsistent with the random or sequential number generation required for an ATDS.

The defendants also argued that Cupp consented to the communications. Because the court found that Cupp had not adequately alleged ATDS use, it did not decide whether he had adequately pleaded a lack of consent.

Disposition

The court granted the defendants’ motion to dismiss. The FDCPA and Rosenthal Act claims were dismissed with prejudice. The TCPA claim was dismissed with leave to amend solely to add allegations about whether the defendants used an ATDS and whether Cupp consented to the communications. The court set May 1, 2025, as the deadline for any amended complaint. Judge Araceli Martinez-Olguin also vacated the previously scheduled April 10, 2025 hearing.