In a recent TCPA order, the Northern District of Illinois dismissed Plaintiff George Moore’s Complaint for failure to state a claim under the TCPA and the Illinois Telephone Solicitations Act. Moore v. Chw Group, 2019 U.S. Dist. LEXIS 119161. To put it aptly, well, Moore should have plead more.
In two separate counts, Moore alleged that Choice Home Warranty (“CHW”) violated the TCPA by first, placing pre-recorded telephone calls to residential telephone numbers without proper consent, and second, for calling consumers who registered on the do-not-call list. For both counts, Moore simply alleged the elements of the TCPA, without providing further detail as to his factual allegations or the foundation for his belief that violations occurred. Specifically, Moore did not allege why he thought the solicitation was pre-recorded (in Count I), nor did Moore state that the Defendant was the one making the solicitation, or “specifics regarding [the Defendant]’s do-not-call list practices” (Count II). Id. at 4-5, 7.
As Twombly and Iqbal taught us (and as this Court reminds us) threadbare recitals of the elements in a complaint do not cut it anymore, and the TCPA is no exception. Bell Atl. Corp. v. Twombly, 550 U.S. 544, (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009). If a plaintiff pleads only the bare elements of an alleged TCPA violation, the complaint is inadequate under Fed. R. Civ. Pro. 12(b)(6).
Now, I know we are thinking the same thing here. Aren’t certain things so obvious, they don’t need to be plead? “The telephone call was pre-recorded because the voice on the phone sounded like C-3PO,” is a seemingly ludicrous complaint allegation! This Court disagrees. Instead, the NDIL orders, “At the very least[,] Moore is required to plead a layman’s explanation for why he believed that the solicitation was pre-recorded.” Moore at 5.
So, plaintiffs, did you hear a click before the voice began? Was there a long pause before someone started speaking? Did the voice on the phone sound like C-3PO?! If you fail to connect the dots in your complaint, the court is not going to do it for you.
What is most important to note here, folks, is that federal courts no longer hesitate to stand by Twiqbal. And, under this heightened standard, less is never more.