United States District Court, N.D. Indiana, South Bend Division
CHRISTINA C. WASHINGTON, Plaintiff,
ROSS MEDICAL EDUCATION CENTER, Defendant.
OPINION AND ORDER
P. SIMON, UNITED STATES DISTRICT JUDGE.
Medical Education Center offers training and certification
for medical and dental assistants and other medical support
positions. Christina Washington complains that the telephonic
pestering she received from Ross about enrolling in its
programs violated the Telephone Consumer Protection Act, 47
U.S.C. §227 et seq. The TCPA prohibits making
any call “without the prior express consent of the
recipient ‘using any automated telephone dialing
system' (‘autodialer') to ‘any telephone
number assigned to a paging service [or] cellular telephone
service.'” Blow v. Bijora, Inc., 855 F.3d
793, 798 (7th Cir. 2017) (quoting 47 U.S.C.
§227(b)(1)(A)(iii)). Ross has filed a motion to dismiss,
challenging the sufficiency of Washington's pleading of
the TCPA claim.
survive a motion to dismiss under Rule 12(b)(6), a complaint
must ‘state a claim to relief that is plausible on its
face.'” Adams v. City of Indianapolis, 742
F.3d 720, 729 (7th Cir. 2014) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“Factual allegations are accepted as true at the
pleading stage.” Adams, 742 F.3d at 729. The
facts alleged must be enough “to raise a reasonable
expectation that discovery will reveal evidence” to
support liability. Twombly, 550 U.S. at 556. Ross
initially contends that Washington's complaint lacks
sufficient facts to support three elements of the TCPA claim:
the use of an autodialer, the call to a cell number, and the
lack of prior express consent. [DE 10 at 4.] But Ross then
abandons the challenge to the third element and articulates
an argument only as to the use of an autodialing system, with
just a passing reference to the allegations about a cell
phone. [Id. at 4-5; DE 18 at 1-3.] Under the
applicable standards, the motion is readily disposed of.
alleges that Ross used an ATDS to place calls to plaintiff.
[DE 1 at ¶25.] In support, the complaint makes
additional factual allegations. Washington alleges that
“[t]he brief pause, lasting approximately three to five
seconds in length, that Plaintiff experiences during answered
calls before being connected to a representative of Defendant
is instructive that an ATDS was being used.”
[Id.] The purpose of the calls was Ross's
efforts to solicit Washington's enrollment in its
programs, and persisted even after Washington “demanded
that [Ross] stop contacting her.” [Id. at
¶¶15, 16.] In addition, Washington alleges that the
use of an ATDS is indicated by “the call center
background noise” she heard during calls from Ross, and
by “the frequency and nature of Defendant's
calls.” [Id. at ¶25.]
cites a single case in support of its attack on the
sufficiency of Washington's pleading. Hanley v. Green
Tree Servicing, LLC, 934 F.Supp.2d 977 (N.D. Ill. 2013),
is clearly distinguishable. There Judge Castillo granted a
motion to dismiss because “the entirety of the facts
pleaded in Hanley's complaint” concerning the use
of an autodialer was the conclusory allegation that the
defendant called Hanley using an automatic telephone dialing
system and/or an artificial or prerecorded voice.
Id. at 979. Hanley's was a complaint that
“merely parrot[s] the statutory language of the
claims” being pled, which is insufficient to withstand
a Rule 12(b)(6) challenge. Brooks v. Ross, 578 F.3d
574, 581 (7th Cir. 2009). Washington, by contrast,
has offered specific facts about the telephone calls she
received - including the silent delay before connection to a
live caller, the “call center” background noise,
and the solicitation purpose of the more than 50 calls - to
create a reasonable expectation that discovery will confirm
that an autodialer was used. This pleading is distinguishable
from Hanley's “wholly inadequate complaint in which
next to nothing is pleaded.” Id. at 982.
district courts have recognized “the difficulty a
plaintiff faces in knowing the type of calling system used
without the benefit of discovery.” Knutson v.
Reply!, Inc., No. 10CV1267, 2011 WL 1447756, at *1 (S.D.
Cal. April 13, 2011). See also Harnish v. Frankly
Co., No. 5:14-CV-02321-EJD, 2015 WL 1064442, at *3 (N.D.
Cal. Mar. 11, 2015). Courts have therefore “rel[ied] on
details about the call to infer the use of an ATDS.”
Hickey v. Voxernet LLC, 887 F.Supp.2d 1125, 1129-30
(W.D. Wash. 2012). As is the case here, a
“Plaintiff's description of the calls as including
dead-air time is sufficient to establish use of an automatic
telephone dialing system” for purposes of Rule 12(b)(6)
analysis. Cunningham v. TechStorm, LLC, No.
3:16-CV-2879-M, 2017 WL 721079, at *3 (N.D. Tex. Feb. 23,
2017). See also Bell v. Survey Sampling International,
LLC, No. 3:15-CV-1666 (MPS), 2017 WL 1013294, at *6
(D.Conn. Mar. 15, 2017); Loveless v. A1 Solar Power,
Inc., No. ED CV 14-1779 FMO, 2015 WL 4498787, at *3
(C.D. Cal. July 23, 2015); Evans v. Corinthian Colleges,
Inc., No. 1:14-cv-00002-SEB-DML, 2014 WL 2866369, at *1
(S.D. Ind. June 23, 2014). Washington's allegations in
support of Ross's use of an autodialer are adequate to
withstand the motion to dismiss.
(minimal) extent Ross challenges Washington's TCPA claim
as to the placement of calls to a cell phone, the argument is
even less compelling. Washington alleges that the calls she
received from Ross were placed “to her cellular phone,
(574) XXX-8788.” [DE 1 at ¶9.] She further alleges
that at all relevant times, she was “the sole
subscriber, owner, and operator of the cellular phone ending
in 8788" and “is and always has been financially
responsible for” the cell service to that number.
[Id. at ¶10.] These are facts of which
Washington would have firsthand personal knowledge and which
are sufficient to support that the number called was in fact
a cellular account. What more could possibly be expected? The
suggestion that there is any deficiency in the pleading of
this element is rejected out of hand.
the complaint in the light most favorable to Washington, she
has amply pled sufficient facts to allow a reasonable
inference that Ross violated the TCPA. The motion to dismiss
will be denied.
Ross Medical Education Center's motion to dismiss [DE 9]
 A second claim under the Indiana
Deceptive Consumer Sales Act has been voluntarily dismissed.