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Sieleman v. Freedom Mortgage Corp.

United States District Court, D. New Jersey

August 2, 2018

STEWART SIELEMAN, on behalf of herself and all others similarly situated, Plaintiff,
v.
FREEDOM MORTGAGE CORPORATION, Defendant.

          Stefan Louis Coleman, Esq. and Arthur Stock, Esq. BERGER & MONTAGUE, P.C. Attorneys for Plaintiff

          David G. Murphy, Esq. REED SMITH, LLP and Travis A. Sabalewski, Esq. REED SMITH, LLP Attorneys for Defendant

          OPINION

          JEROME B. SIMANDLE U.S. DISTRICT JUDGE

         I. INTRODUCTION

         Plaintiff Stewart Sieleman (“Sieleman” or “Plaintiff”) filed this putative class action on behalf of himself and all others similarly situated against Defendant Freedom Mortgage Corporation (“FMC” or “Defendant”). In this matter, Plaintiff generally alleges that FMC violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq., by using an automatic telephone dialing system (“ATDS”) to place unsolicited telephone calls to the cellular telephones of himself and other consumers without prior express written consent. [Docket Item 1, at ¶¶ 10-11, 17.] Plaintiff further alleges that calls to his cell phone continued even after he twice requested that FMC stop calling him. [Id. at ¶ 31.]

         Pending before the Court is Defendant's motion to dismiss or, in the alternative, to stay the case. [Docket Item 6.] Plaintiff filed a response in opposition to the motion [Docket Item 10], and Defendant filed a reply. [Docket Item 14]. The Court heard oral argument on July 19, 2018.

         The principal issues before the Court are: (1) whether Plaintiff plausibly alleged that FMC improperly contacted him using an ATDS; and (2) whether, under the TCPA, FMC needed prior express written consent to contact Plaintiff and other consumers. For the reasons that follow, the Court finds that, accepting the allegations in the Complaint as true, Plaintiff has plausibly alleged that FMC improperly contacted him using an ATDS, and that the TCPA required Plaintiff's prior express written consent here. Accordingly, the motion to dismiss will be denied. The Court further finds, as explained in Part IV.A, below, that a stay is not prudent at this time because, at a minimum, discovery of the nature of FMC's calling system and FMC's contacts with Plaintiff is required before any definitive legal standard under the TCPA can be applied to FMC's conduct herein.[1]

         II. BACKGROUND

         Stewart Sieleman, a Minnesota resident, received a home mortgage from Bell Bank Mortgage. [Docket Item 1 at ¶¶ 23, 28.] ¶ 2015, FMC, a company incorporated in Delaware and headquartered in Mt. Laurel, New Jersey, acquired that mortgage from Bell Bank Mortgage. [Id. at ¶¶ 24, 28.] Plaintiff alleges that “[w]ithin a few months of being informed that his mortgage was transferred to FMC, [he] began to receive auto-dialed calls to his cellular phone, encouraging him to refinance his mortgage with FMC.” [Id. at ¶ 29.]

         Plaintiff alleges FMC used an ATDS[2] to place the calls to his cellular phone. [Id. at ¶ 30.] Plaintiff bases this allegation on: (1) a “noticeable” and “artificial pause/delay” that he heard on the “approximately four (4) calls” he answered; (2) a job listing from FMC “seeking employees that have autodialing experience”; and (3) an image from FMC's website that “explicitly states that it may use automated technology to contact consumers.” [Id. at ¶¶ 12, 14, 30.] Plaintiff states that the calls were made without “his prior express written consent to FMC to place solicitation telephone calls to him.” [Id. at ¶ 34.] Plaintiff also claims that he “requested FMC stop calling him twice.” [Id. at ¶ 31.]

         The Complaint brings two causes of action: the first alleging that FMC violated 47 U.S.C. § 227(b)(1)(A)(iii) (Count One) [id. at ¶¶ 47-52]; and the second alleging that FMC violated 47 U.S.C. § 227(b)(1)(B) (Count Two).[3] [Id. at ¶¶ 53- 59.] Plaintiff makes these allegations against Defendant on behalf of himself and all other consumers similarly situated. [Id. at ¶¶ 38-46.] As relief, Plaintiff seeks an certifying this case as a class action, actual and statutory damages, a declaratory judgment that Defendant's actions violate the TCPA, that Defendant's telephone-calling equipment constitutes an ATDS under the TCPA, disgorgement of any ill-gotten funds acquired as a result of its unlawful telephone calling practices, injunctive relief, and reasonable attorneys' fees and costs. [Id. at ¶¶ 60-66.]

         III. STANDARD OF REVIEW

         Pursuant to Rule 8(a)(2), Fed. R. Civ. P., a complaint need only contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Specific facts are not required, and “the statement need only ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). While a complaint is not required to contain detailed factual allegations, the plaintiff must provide the “grounds” of his “entitle[ment] to relief”, which requires more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         A motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P., may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, while disregarding unsupported conclusory statements, a court concludes that plaintiff has failed to set forth fair notice of what the claim is and the grounds upon which it rests. Id. A complaint will survive a motion to dismiss if it contains sufficient factual matter to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). Although a court must accept as true all factual allegations in a complaint, that tenet is “inapplicable to legal conclusions, ” and “[a] pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.” Id. at 678.

         IV. DISCUSSION

         FMC argues that the Complaint should be dismissed for two reasons. First, FMC argues Plaintiff's allegation that FMC used an ATDS is not plausible. [Docket Item 6 at 2.] Second, FMC argues the Complaint should be dismissed because any calls FMC placed to Plaintiff did not require prior express written consent under the TCPA. [Id. at 1.] Alternatively, at oral argument, FMC requested a stay of this matter pending further guidance ...


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