Motion to Strike Granted: Plaintiff’s Individual TCPA Claim May Proceed But Class TCPA Claims Are Dismissed

Earlier this week, in Whittum v. Acceptance, 2019 U.S. Dist. LEXIS 167990 (D. Nev. Sept. 30, 2019), the court granted in part and denied in part a defendant’s motion to dismiss, finding that while plaintiff pled sufficient allegations for her own TCPA claim to proceed, she had not “pled allegations to establish a class under the TCPA beyond conclusory statements that nationwide violations occurred.”  Accordingly, the court dismissed all class claims.

As to plaintiff’s individual TCPA claim, the court found that the plaintiff had “plausibly pled facts, which accepted as true, state a claim for relief under the TCPA.”  The court specifically found that her assertion “upon information and belief” that defendant used an ATDS to make the calls was sufficient.  “That [p]laintiff cannot as of yet assert more facts in support of [d]efendant’s use of an ATDS is not fatal to her claim at the pleading stage.”    

The defendant had moved to strike the nationwide class allegations based on the Supreme Court’s decision in Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017).  The court found defendant’s argument “premature” because plaintiff had not sufficiently pled allegations that nationwide violations occurred.  Rather, the court found plaintiff’s allegations as to the existence of a nationwide class “speculative” and “insufficient to survive at this time.”  Thus, the court dismissed the class claims. 

Although the court did not dismiss the class claims on the basis requested, it nonetheless dismissed them.  As we at TCPAWorld say, a rose by any other name would smell as sweet! 

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