Hi TCPAWorld and happy Monday! The Baroness here. Back with some good news 🙂
Defendant CrossCountry Mortgage, LLC wins on a motion to dismiss and Plaintiff Sam Katz is NOT granted leave to amend!
How did this happen?
Let’s dive in.
Sam Katz filed suit against CrossCountry Mortgage, LLC and other entities alleging violations of the TCPA. Specifically, Katz alleged CrossCountry used an ATDS to make “multiple calls” a week to him without his prior express written consent and while his number was listed on the National DNC Registry. SAM KATZ v. CROSSCOUNTRY MORTGAGE, LLC No. 1:22-CV-00925, 2022 WL 16950481 (N.D. Ohio Nov. 15, 2022).
CrossCountry moved to dismiss Katz’ First Amended Complaint for failure to state a claim.
CrossCountry argued that Katz’ FAC “employs a ‘shotgun-style’ pleading that merely parrots the language of the TCPA,” and thus, fails to state a claim for which relief can be granted. As I’m sure you all know, a Complaint must allege sufficient factual allegations to state a claim. It is not enough to merely recite the language of the TCPA.
To state a claim under the TCPA, a Plaintiff must allege that a Defendant (1) made a call, (2) using an ATDS or artificial or prerecorded voice, (3) to a telephone number assigned to a cellular telephone service, (4) absent the prior express consent of the Plaintiff. Reo v. Caribbean Cruise Line, Inc., 2016 WL 1109042, at *4 (N.D. Ohio Mar. 18, 2016).
But a Plaintiff is also required to make “some additional factual allegations, no matter how minor, in addition to parroting the language of the statute,” to sufficiently allege that Defendant utilized a prerecorded or artificial voice or used an ATDS system. This seems simple enough right?
Here, Katz’ only allegation in support of CrossCountry’s use of an ATDS was that there was a “perceptible delay…in which the Plaintiff’s information [was] transferred between the lead generator and the party the Plaintiff [was] transferred to…” Is this sufficient to state a claim? The Court found it was not. The Court stated the FAC did not include a description of the content of the calls or information regarding the frequency of the calls, nor did Katz offer any description of the “manner” by which the calls were transferred.
Additionally, Katz did not offer any factual allegation as to the identities of the lead generator or the transferee. As such, the Court stated Katz failed to allege direct or vicariously liability as he failed to identify the source of the calls.
Katz also failed to specify how many times he was called by CrossCountry or that the calls were telephone solicitations.
Talk about striking out!
And as to Katz’ state law claims, since the Court disposed of Katz’ federal claims, the Court declined to exercise supplemental jurisdiction over any state law claims and dismissed them.
Lastly and most importantly, Katz was not granted leave to amend and the FAC was dismissed with prejudice.
Why was the Court not forgiving?
Well, Katz previously sought leave to amend his original complaint to address deficiencies raised in CrossCountry’s initial motion to dismiss, which CrossCountry did not oppose, and the Court granted. Nevertheless, the Court found, many of the same deficiencies in Katz’ original complaint remained in Katz’ FAC.
And to make matters worse, Katz failed to follow the proper procedure for requesting leave to amend. “[A] bare request in an opposition to a motion to dismiss— without any indication of the particular grounds on which amendment is sought… does not constitute a motion within the contemplation of Rule 15(a).” La. Sch. Emps.’ Ret. Sys. v. Ernst & Young, LLP, 622 F.3d 471, 486 (6th Cir. 2010) (quoting PR Diamonds, Inc. v. Chandler, 364 F.3d 671, 698 (6th Cir. 2004)).
What a win for CrossCountry Mortgage.