United States District Court, S.D. Indiana, New Albany Division
ORDER GRANTING DEFENDANT'S MOTION TO
WALTON PRATT, JUDGE.
matter is before the Court on Defendant Navient Solutions,
LLC's (“Navient”) Motion to Dismiss filed
pursuant to Federal Rule of Civil Procedure 12(b)(6)
(Filing No. 11). After receiving multiple unwanted
telephone calls on her cellular telephone, Plaintiff Melissa
Whalen (“Whalen”) filed her Complaint against
Navient, asserting claims under the Telephone Consumer
Protection Act, 47 U.S.C. § 227 (“TCPA”),
and the Indiana Deceptive Consumer Sales Act, Ind. Code
§ 24-5-0.5 (“IDCSA”) (Filing No.
1). Whalen alleges that Navient continued to call her
regarding her student loan debt even after she asked Navient
to stop calling her. Navient filed its Motion to Dismiss,
asserting that a TCPA exemption permits telephone calls to be
made to collect debts guaranteed by the United States. As the
servicer for Whalen's federally-guaranteed loans, Navient
asserts that its calls to Whalen fall within the TCPA
exemption, thereby barring her claims. For the following
reasons, the Court GRANTS Navient's
Motion to Dismiss.
following facts are not necessarily objectively true, but as
required when reviewing a motion to dismiss, the Court
accepts as true all factual allegations in the Complaint and
draws all inferences in favor of Whalen as the non-moving
party. See Bielanski v. County of Kane, 550 F.3d
632, 633 (7th Cir. 2008).
is the largest servicer of student loans in the United
States. It is based out of Delaware. It is in the business of
collecting and attempting to collect student loans that are
owed to others by using the mail and telephone (Filing
No. 1 at 2). Whalen is an Indiana resident who,
approximately six years before filing her Complaint, entered
into an obligation for a student loan in order to further her
experiencing financial hardship because of health challenges,
Whalen could not stay current on her student loan repayment
obligations. In approximately January 2017, after she had
defaulted on her student loan, Whalen began receiving
telephone calls from Navient on her cellular phone.
Id. at 2-3. When answering Navient's phone
calls, Whalen would be greeted by a prerecorded message or
experience a silent pause before she was connected to a live
representative. Because she lacked the ability to pay
Navient, Whalen demanded that it stop calling her cellular
phone, and Navient's representative told her that she
would make a note of her request in Navient's system.
Id. at 3.
Whalen's request to stop the phone calls, Navient
continued to call her cellular phone multiple times during
the same day up until she filed her Complaint. Whalen has
asked Navient to stop calling her on multiple occasions, but
Navient continued calling Whalen at least twenty-five times
after she told Navient to stop. On one occasion, Whalen asked
Navient to stop calling her, and the representative
responded, “I can call you whenever I want.”
(Filing No. 1 at 3-4.)
Rule of Civil Procedure 12(b)(6) allows a defendant to move
to dismiss a complaint that has failed to “state a
claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). When deciding a motion to dismiss under Rule
12(b)(6), the Court accepts as true all factual allegations
in the complaint and draws all inferences in favor of the
plaintiff. Bielanski, 550 F.3d at 633. However,
courts “are not obliged to accept as true legal
conclusions or unsupported conclusions of fact.”
Hickey v. O'Bannon, 287 F.3d 656, 658 (7th Cir.
complaint must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). In Bell Atlantic
Corp. v. Twombly, the Supreme Court explained that the
complaint must allege facts that are “enough to raise a
right to relief above the speculative level.” 550 U.S.
544, 555 (2007). Although “detailed factual
allegations” are not required, mere “labels,
” “conclusions, ” or “formulaic
recitation[s] of the elements of a cause of action” are
insufficient. Id.; see also Bissessur v. Ind.
Univ. Bd. of Trs., 581 F.3d 599, 603 (7th Cir. 2009)
(“it is not enough to give a threadbare recitation of
the elements of a claim without factual support”). The
allegations must “give the defendant fair notice of
what the . . . claim is and the grounds upon which it
rests.” Twombly, 550 U.S. at 555. Stated
differently, the complaint must include “enough facts
to state a claim to relief that is plausible on its
face.” Hecker v. Deere & Co., 556 F.3d
575, 580 (7th Cir. 2009) (citation and quotation marks
omitted). To be facially plausible, the complaint must allow
“the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556).
TCPA prohibits any person from “mak[ing] any call
(other than a call made for emergency purposes or made with
the prior express consent of the called party) using any
automatic telephone dialing system or an artificial or
prerecorded voice . . . to any telephone number assigned to a
. . . cellular telephone service . . . .” 47 U.S.C.
§ 227(b)(1)(A)(iii). Whalen filed this action against
Navient based on this general prohibition against using an
automatic telephone dialing system or an artificial or
prerecorded voice to make telephone calls to cellular phones.
on November 2, 2015, Congress amended this section of the
TCPA as part of its enactment of the Bipartisan Budget Act of
2015, Pub. L. No. 114-74 (“Budget Act”). Section
301 of the Budget Act amended the TCPA to include the
language, “unless such call is made solely to collect a
debt owed to or guaranteed by the United States.” 47
U.S.C. § 227(b)(1)(A)(iii). Based on this exemption from
the TCPA, Navient filed its Motion to Dismiss, asserting that
Whalen's claims fall outside the reach of the TCPA's
prohibition against calls to cellular phones.
explains that autodialed phone calls are now exempt from the
TCPA's prior express consent requirement when the calls
are made solely to collect a debt owed to or guaranteed by
the United States. Navient points to a decision ...