Cupp v. ABC-Amega, Inc.

Background

Defendant BDO USA, P.C. moved under Federal Rule of Civil Procedure 12(b)(6), which allows dismissal when a complaint does not adequately state a legal claim. Defendant ABC-Amega joined the motion. Ronald Cupp represented himself and alleged that the defendants violated the Telephone Consumer Protection Act (TCPA) through communications made using an automatic telephone dialing system (ATDS).

The court had previously found that Cupp failed to state a TCPA claim but allowed him to amend solely to add allegations about whether the defendants used an ATDS and whether Cupp consented to the communications.

Analysis

The TCPA defines an ATDS as equipment with the capacity to store or produce telephone numbers using a random or sequential number generator and to dial those numbers. Relying on the Supreme Court’s interpretation of the statute, the court explained that merely being able to autodial phone numbers already stored in a device is not enough. Otherwise, the definition would cover nearly all modern cell phones.

Cupp’s amended complaint mainly made legal arguments about the possible capacity of the defendants’ equipment. He acknowledged that he could not yet describe how the system worked and alleged, based on information and belief, that it had the required capacity. He also asserted that any device other than an old, hard-wired rotary phone could have that capacity. The court rejected that understanding of the statute.

The court explained that a plaintiff does not need inside knowledge of a defendant’s equipment at the pleading stage, but must provide facts making the claim plausible. Other cases had found such allegations sufficient when plaintiffs identified additional facts, such as repeated calls and complaints about calls from the same numbers. Cupp did not provide comparable facts. The court also noted that allegations from his initial complaint describing conversations with people who identified themselves as being from the defendants were omitted from the amended complaint, and that the amended complaint added no facts supporting the ATDS allegation.

Ruling

The court held that Cupp failed to plausibly allege that the calls were made using an ATDS. Because that deficiency alone required dismissal, the court did not reach whether Cupp consented to the calls.

Judge Araceli Martinez-Olguin granted BDO’s motion to dismiss, which ABC-Amega had joined. The court dismissed Cupp’s first amended complaint with prejudice. It denied further amendment because Cupp had already had two opportunities to plead a TCPA claim and the court found that additional amendment would be futile.