Dropping the Heavy Hammer: Rare Motion to Dismiss ATDS Allegations Granted in California Court

With all the excitement of Alan joining Squire still percolating I know its tough to focus on hard work of TCPA defense but, back to work.

Here’s a quick and interesting one for you.

In Hildre v. Heavy Hammer, Case No.: 3:20-cv-00236-L-LL, 2021 U.S. Dist. LEXIS 35294 (S.D. Cal. February 24, 2021) a district court actually granted a motion to dismiss ATDS allegations at the pleadings stage. This is pretty rare since: i) the pleadings standard on ATDS allegations is pretty low nationwide; and ii) ATDS standard under Marks is really quite low; and iii) why would a Defendant try to dismiss ATDS allegations in the Ninth Circuit with Facebook out there?

Despite all these hurdles, the Court found a way to dismiss the complaint noting that the mere allegation of the receipt of two calls is not sufficient to establish ATDS usage. Even in the Ninth Circuit something still qualifies as manual. And whatever that something is, it can make two calls.

Moreover the use of spoofing, masking or local touch numbers—i.e. a local area code number although the caller is from out of state—is not probative on whether an ATDS was used. So just because the caller masked a number doesn’t mean it was using automatic technology to call. Makes sense.

The Court granted Plaintiff leave to amend, however, so Heavy Hammer probably hasn’t seen the last of this case. Cool name though.


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