Pleading your TCPA case to avoid a motion to dismiss

How do you hold telemarketers accountable for do not call violations and calling with artificial or prerecorded voice? How do you pursue trebled damages or injunctive relief?

You literally plead your case in your in your complaint. But it has to be done in a convincing way. Federal court operates on notice pleading. "Notice pleading" is a legal standard in civil litigation where a party only needs to provide the opposing party with a general explanation of their claim or defense, giving them "fair notice" of the lawsuit without needing to include highly detailed facts, allowing for a more accessible entry into the legal process; this contrasts with "fact pleading" which requires more specific factual details to be included in the pleading.

This means that while you don't have to prove your case in your complaint, you have to give sufficient facts to convince the court that what you allege happened is plausible. You need to allege sufficient facts such that claims of do-not-call-list violations or calls utilizing artificial or prerecorded voice, or trebling the statutory damages or asking for an injunction won't be dismissed by the court because your complaint doesn't sufficiently support them.

As usual, lets look at real would examples of other plaintiffs who defended their claims at the motion to dismiss stage, and those who didn't. These are recent cases where the TCPA plaintiff made claims of calling without consent or artificial or prerecorded voice, asked for treble damages under the TCPA, or asked for injunctive relief.

Blair v. Assurance IQ, LLC, No. C23-0016-KKE, 6 (W.D. Wash. Oct. 11, 2023)

Rogers v. Assurance IQ, LLC, 2:21-cv-00823-TL, 4 (W.D. Wash. Mar. 27, 2023)

Davis v. RockLoans Marketplace, LLC, 23cv0134 DMS (BLM), (S.D. Cal. Nov. 26, 2024)

Weingrad v. Top Healthcare Options Ins. Agency Co., Civil Action 23-5114, (E.D. Pa. Sep. 17, 2024)

Martin v. Bottom Line Concepts, LLC, 723 F. Supp. 3d 270, 273 (S.D.N.Y. 2024)

Ewing v. Freedom Forever, LLC, 23-CV-1240 JLS (AHG), (S.D. Cal. Jan. 19, 2024)

Hodge v. Travel + Leisure Co., 5:24-cv-06116-EJD, (N.D. Cal. Jan. 29, 2025)

Griffin v. American-Amicable Life Ins. Co. of Tex., 6:24-cv-00243-MC, (D. Or. Sep. 27, 2024)

If you intend to make similar claims, the judges in these cases just taught you what might and might not work. Keep in mind that even if something just barely scraped by in one court, it might get dismissed in another, so the best practice is to not just barely scrape by.

Do-not-call list violations 47 U.S.C. § 227(c)

A National Do Not Call registry claim can be made by residential telephone subscribers who have registered their phone numbers on the DNC list . . . Defendants argue that Plaintiffs have failed to allege: (1) that their phone numbers are used for residential purposes; and (2) that they placed their own numbers on the DNC list (as opposed to someone else placing their numbers on the list) . . . The Court agrees with Defendants. Again, this information is known to Plaintiffs without any discovery and should be simple to include. “A plaintiff is the master of his complaint and responsible for articulating cognizable claims.” . . . Plaintiffs chose to use the passive voice to allege that both Plaintiffs Rogers' and Thompson's phone numbers were “registered on the National Do Not Call Registry.” . . . However, the numbers could have been registered by previous owners of those numbers rather than by Plaintiffs themselves. [I am shocked by the number of complaints that don't allege the plaintiff placed the phone number on the national do-not-call-list. Yes many judges let it slide, but not all of them] Plaintiffs further chose to describe that the telephone numbers were for “personal use” . . . which does not necessarily equate with residential use. [Ditto. The magic words are 'residential phone line'] The statute invoked by Plaintiffs specifically applies to subscribers of “residential” phones . . . These are facts that are easily within the knowledge of Plaintiffs and can be pleaded to remove any doubt about whether Plaintiffs Rogers and Thompson actually registered their own numbers on the DNC list and whether those numbers are for residential use. Rogers

“We dismiss Mr. Weingrad's Telephone Consumer Protection Act claim without prejudice because he does not plead he received multiple telephone solicitations [at least two in a twelve month period] and does not plead the contents of the calls he received.” . . . Call recipients must do more than allege the calls in question were telephone solicitations. [they must allege details of the call(s) showing the calls were for the purpose of telephone solicitation] Weingrad

Artificial or prerecorded voice 47 U.S.C. § 227(b)

Assurance IQ targets the second element, arguing that Blair's amended complaint “does not provide any basis for this Court to reasonably infer that the ‘voice' [he] allegedly heard was prerecorded as opposed to live.” . . . Although the amended complaint contains allegations about the tone, cadence, and timing of the speaker, Assurance IQ argues that Blair fails to specify “what about the tone, cadence, and timing indicated that the call was pre-recorded . . . When, as here, a fact is an element of the claim (i.e., whether the defendant made the call using an artificial or prerecorded voice), it is insufficient for the plaintiff to merely recite that fact verbatim without other supporting details . . . District courts in the Ninth Circuit generally require plaintiffs to plead circumstances sufficient to support an inference that the calls were placed with an artificial or prerecorded voice . . . For example, a plaintiff should be able to allege facts about the “tenor, nature, or circumstances of the alleged calls” or “otherwise demonstrate that a live human was not speaking during the calls” . . . finding that plaintiff adequately stated a TCPA claim where he alleged that he knew the caller was a prerecorded message “based on the speaker's content, tone, and inflection; the generic content of the voice message, and the speaker's cadence” . . . “[A] TCPA plaintiff could describe the robotic sound of the voice on the other line, the lack of human response when he attempted to have a conversation with the ‘person' calling him, [or] the generic content of the message he received[.]”) . . . With respect to the December 26th call, Blair contends the call involved a prerecorded voice “because of the tone, cadence, and timing of the speaker, which sounded unnaturally perfect.” Blair

To plead a TCPA claim under § 227(b), Plaintiffs must allege the following elements: (1) a defendant called their cellular or residential phone numbers, (2) using an artificial or pre-recorded voice, (3) without their prior express consent . . . Defendants contend that Plaintiffs have merely made “naked assertions” regarding use of a pre-recorded voice . . . Even accepting all of these allegations as true, they do not provide insight into why Plaintiffs believe the calls made to them were pre-recorded beyond simply stating that they were . . . Plaintiffs should be able to allege facts establishing that the calls were in-fact pre-recorded, such as the “tenor, nature, or circumstances of the alleged calls . . . or otherwise demonstrate that a live human was not speaking during the calls. This information is known to Plaintiffs without any discovery . . . “[a] TCPA plaintiff could describe the robotic sound of the voice on the other line, the lack of human response when he attempted to have a conversation with the ‘person' calling him, the generic content of the message he received, or anything else about the circumstances of a call or message contributing to his belief it was pre-recorded.” . . . The Court holds that Plaintiffs have failed to state a claim under 47 U.S.C. § 227(b). Rogers

the majority of district courts in the Ninth Circuit have held that additional factual allegations are required to satisfy the artificial or prerecorded voice element . . . “plaintiff must include factual allegations indicating that a prerecorded voice, as opposed to that of a real, live person, was used.” . . . Here, Plaintiff fails to allege any facts supporting her allegation that Defendant called her using an artificial or prerecorded voice. Although she repeatedly offers that conclusory allegation . . . there are no facts about the “'tenor, nature, or circumstances of the alleged calls . . . Nor are there any allegations to “demonstrate that a live human was not speaking during the calls.” . . . As stated in Rogers, this kind of information should be available to plaintiffs bringing TCPA claims . . . “For example, ‘[a] TCPA plaintiff could describe the robotic sound of the voice on the other line, the lack of human response when he attempted to have a conversation with the person calling him, the generic content of the message he received, or anything else about the circumstances of a call or message contributing to his belief it was pre-recorded.'” . . . Plaintiff fails to include any of these facts in her Complaint, and without them, she has failed to allege a plausible claim that Defendant called her using an artificial or prerecorded voice. Accordingly, her TCPA claim must be dismissed. Davis

Courts differ with respect to the amount of factual detail a Plaintiff must provide to render it plausible that a call or calls involved a prerecorded voice. Some courts reason that a plaintiff can simply allege that a call involved an artificial or prerecorded voice, as such an allegation is “based on [a plaintiff's] own experience when she answer[s] [a defendant's] phone calls.” . . . Other courts require plaintiffs to supply at least some facts supporting the conclusion that a caller's voice was prerecorded or artificial, such as “the robotic sound of the voice on the other line, the lack of human response when [the plaintiff] attempted to have a conversation with the ‘person' calling him, the generic content of the message he received, or anything else about the circumstances of a call or message.” . . . Plaintiff's prerecorded-voice allegations suffice under either standard. Courts have repeatedly concluded that where a plaintiff alleges that they were unable to reach a live operator without either remaining on the line or pressing numbers on their phone keypad, it is reasonable to infer that the call involved a prerecorded voice . . . Courts have also credited allegations that calls contained “generic statements that were repeated verbatim.” Ewing

Hodge makes only two factual allegations. First, Hodge alleges that “she would be left prerecorded messages purportedly from ‘Sarah from Wyndham Vacation Resorts'” when declining to answer Defendant's calls . . . Otherwise, Hodge merely asserts in conclusory fashion that “Defendant used prerecorded and/or artificial voice messages” and “plac[ed] dozens of phone calls to Plaintiff's cellular phone using prerecorded messages.” . . . These allegations are little more than “labels and conclusions” insufficient to state a claim under Rule 12(b)(6) . . . That is because Hodge merely recites one of the TCPA's requirements- use of an artificial or prerecorded voice-without providing factual detail from which that conclusion can be inferred . . . Hodge suggests she need not plead more than the bare assertion that Defendant used an artificial or prerecorded voice message, citing to cases that apply an “easier” standard where “merely . . . alleging that a defendant used an artificial or prerecorded voice suffices at the pleading stage.” . . . The Court respectfully disagrees with those cases. It would be inconsistent with Twombly to allow such conclusory allegations to satisfy a plaintiff's pleading burden. And district courts within this Circuit largely agree. Hodge

Treble damages

The TCPA vests district courts with discretion to award treble damages for willful or knowing violations of the statute or its regulations . . . Assurance IQ argues that Blair's amended complaint “makes no allegation that [its] alleged conduct was willful and knowing” . . . At this juncture, the Court agrees. Nowhere does Blair allege that Assurance IQ's statutory violations were willful or knowing. He instead claims that, “[t]o the extent [Assurance IQ]'s misconduct is determined to be willful and knowing, the Court should . . . treble the amount of statutory damages recoverable by the members of the Do Not Call Registry Class.” Dkt. No. 18 at 15-16. This is insufficient. Blair

Defendants argue that Plaintiffs' barebones conclusions that their violations of the TCPA were willful and knowing are insufficient to support a prayer for increased damages above the statutory $500 per infringing call . . . Plaintiffs have alleged that Assurance IQ explicitly instructed Boomsourcing to use pre-recorded messages and approved the script for that pre-recorded message and that it “maintained interim control” over Torchlight Technology's actions and provided the vendor with parameters regarding whom to call . . . They also allege “Defendants' violations [of § 227(c)] were knowing or willful.” . . . Courts within this circuit have repeatedly found similarly conclusory allegations regarding the willful or knowing nature of TCPA violations to be sufficient to withstand a motion to dismiss . . . While the complaint's allegations could be strengthened by inclusion of further facts, such as any requests Plaintiffs made to Defendants to stop the unwanted calls . . . further factual development is unnecessary at this stage in the litigation. Rogers

We dismiss Mr. Weingrad's claim for treble damages without prejudice as he does not plead a knowing or willful violation of the law. Weingrad

Under the TCPA, if "the defendant willfully or knowingly violated" the statute, "the court may, in its discretion," award treble damages to the plaintiff . . . BLC argues that the FAC lacks allegations supporting a finding of willful or knowing TCPA violations . . . The Court denies this motion as procedurally premature . . . A motion to dismiss under Rule 12(b)(6) "is addressed to a 'claim'—not to a form of damages." . . . Treble, like punitive, damages, are "a form of damages, not an independent cause of action." . . . Whether Martin can adduce evidence sufficient to support an award of treble damages cannot be resolved until after discovery, either on a motion for summary judgment or at trial. [Footnote 7 As this Court has recognized, motions to dismiss may be directed at prayers for relief where particular damages are unavailable as a matter of law. But treble damages are available under the TCPA. Whether they are available in this case will turn on the factual record and thus cannot be resolved at this juncture.] [This outcome - a judge following the law in this situation - is unusual. Usually if your complaint does not cite reasons why their TCPA violations were willful or knowing the treble damages claims will be dismissed] Martin

But even assuming Plaintiff must plausibly allege that Freedom Forever committed knowing or willful violations, Defendant's argument fails because Plaintiff has so done here. Plaintiff alleges that his cell phone number is on the federal do-not-call list and has been since 2012. In addition, Plaintiff alleges that he “became upset on each telephone call making very clear that the caller must never telemarket him . . . ever again.” Nevertheless, per Plaintiff, he received additional calls. Ewing

Injunctive relief

The TCPA permits a plaintiff to bring “an action based on a violation of th[e statute] or the regulations prescribed under th[e statute] to enjoin such violation[.]” . . . Assurance IQ's argument under Federal Rule of Civil Procedure 12(b)(1) contends, however, that Blair lacks Article III standing to seek injunctive relief because he “does not allege any threat of future injury[.]” . . . While Assurance IQ does not specify whether it intends to mount a facial or factual attack, the substance of its motion indicates that it believes Blair's allegations are insufficient to invoke the Court's jurisdiction with respect to injunctive relief, i.e., it brings a facial challenge . . . “In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction.” . . . In terms of injunctive relief, then, Blair “must allege either continuing, present adverse effects” due to his exposure to Assurance IQ's past illegal conduct “or a sufficient likelihood that [he] will again be wronged in a similar way.” . . . The threat of injury “must be actual and imminent” rather than merely hypothetical . . . And Blair does not allege continuing, present adverse effects due to his exposure to Assurance IQ's calls. He instead frames his injury in the past tense: “The unauthorized solicitation telephone calls . . . harmed Plaintiff Blair in the form of annoyance, nuisance, and invasion of privacy, occupied his phone line, and disturbed the use of and enjoyment of his phone.” . . . Past exposure to unlawful conduct is insufficient to confer standing to seek injunctive relief unless the plaintiff continues to suffer adverse effects . . . Nor does Blair allege a sufficient threat of future harm-let alone “actual and imminent” or “certainly impending” harm. Indeed, he does not even mention the possibility of future calls . . . And according to the amended complaint, he only received calls over a period of seven days . . . Because Blair does not allege ongoing harm from past conduct or establish a sufficient likelihood of future harm, he lacks standing to seek injunctive relief on his or the class's behalf . . . The Court accordingly dismisses Blair's claim for injunctive relief. Blair

Because "standing is not dispensed in gross," Article III requires a plaintiff to demonstrate standing separately for each form of relief sought . . . As a result, a plaintiff who pursues injunctive relief must separately demonstrate the three familiar elements of standing—injury in fact, causation, and redressability—as to her request for injunctive relief . . . "Plaintiffs lack standing to pursue injunctive relief where they are unable to establish a 'real or immediate threat' of injury." . . . Neither allegations of possible future injury nor past exposure to illegal conduct is sufficient to clear this bar . . . BLC argues that the FAC fails to plead that Martin "is likely to be harmed again in the future in a similar way" by BLC, even accepting as true her allegation that she received one robocall from BLC in the past . . . Although the FAC asserts that Martin has "received numerous prerecorded calls from BLC, . . . the full extent of which will be confirmed in discovery," . . . it provides factual detail as to only one such robocall . . . That call was received a month before Martin filed suit and several months before she filed the FAC. The FAC does not plead facts supporting the proposition that Martin will ever receive a second (or third or fourth) robocall from BLC. It thus does not adequately plead that "the threatened injury is 'certainly impending,' or [that] there is a 'substantial risk' that the harm will occur." Martin

Construing the FAC in the light most favorable to Plaintiffs, Plaintiffs sufficiently allege an imminent risk of future harm that entitles them to injunctive relief. Plaintiffs allege that “Defendant engages in unsolicited marketing, harming thousands of consumers in the process,” and that “[t]he cumulative effect of unsolicited phone calls and voicemails like Defendant's poses a real risk of ultimately rendering [Plaintiffs' phones] unusable[.]” . . . Other courts to consider this issue with similar facts have held that plaintiffs had standing because “it is plausible that Plaintiff[s] may receive additional calls in the future,” particularly where, as here, a defendant has made no assurances that it will abstain from the allegedly wrongful conduct. Griffin

Usually if the court dismisses claims a court will give the plaintiff an opportunity to amend the complaint, unless the judges believes amendment would be futile or a plaintiff already had a chance to fix the issue with the claim and didn't. But you win every fight you don't have so the best practice is to have a bulletproof lawsuit with no weaknesses.

Even so, don't be surprised if they file a motion to dismiss anyway. Defense attorneys often need their client to believe they are being aggressive and "doing something" but the more their attorney spends billable hours on lost causes the more the pressure ratchets up on the defendant. What happens if the judge dismisses part of your claims? Read on!

Would you like a free case review? Do you have a question or a telemarketing, debt collection, or bankruptcy case that would make a great blog article? We might even review your pro-se complaint or motion in a blog post. Email peter@nwdebtresolution.com and/or nathen@nwdebtresolution.com and we may answer it for everyone!

Are telemarketers harassing you in Washington, Oregon, or Montana? My Washington State TCPA plaintiff law practice can help, just give us a call at 206-800-6000 or email peter@nwdebtresolution.com.

The thoughts, opinions and musings of this blog are those of Peter Schneider, a consumer advocate and Washington State plaintiff's TCPA attorney at Northwest Debt Resolution, LLC. They are just that, his thoughts, opinions and musings and should be treated as such. They are not legal advice. If you are looking to file a lawsuit for TCPA violations and unwanted calls please contact me for a consultation.

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