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Somogyi v. Freedom Mortgage Corp.

United States District Court, D. New Jersey

August 2, 2018

JOSHUA SOMOGYI and KELLY WHYLE SOMOGYI, individually and on behalf of all others similarly situated, Plaintiffs,

          Eric Lechtzin, Esq. Arthur Stock, Esq. Lawrence J. Lederer, Esq. BERGER & MONTAGUE, P.C. and Brian H. Mahany, Esq. Timothy J. Granitz, Esq. MAHANY LAW Attorneys for Plaintiffs

          Meredith C. Slawe, Esq. Michael W. McTigue, Jr., Esq. AKIN GUMP STRAUSS HAUER & FELD LLP and Katie Bailey Garayoa, Esq. DRINKER BIDDLE & REATH LLP Attorneys for Defendant



         I. Introduction

         Plaintiffs Joshua Somogyi (“Mr. Somoygi”) and Kelly Whyle Somogyi (“Mrs. Somoygi, ” and collectively, “Plaintiffs”) filed this putative class action on behalf of themselves and all others similarly situated against Defendant Freedom Mortgage Corporation (“FMC” or “Defendant”). In this matter, Plaintiffs generally allege that FMC violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq., by using an automatic telephone dialing system (“ATDS”) and/or prerecorded voices to place unsolicited telemarketing calls to consumers without their prior express written consent and continuing to place those calls after Plaintiffs and other class members requested that the calls stop. [Docket Item 19.]

         Pending before the Court is Defendant's motion to dismiss the Amended Complaint or, in the alternative, to stay the case pending new guidance from the Federal Communications Commission (“FCC”) following the D.C. Circuit's ruling in ACA Int'l v. Fed. Commc'n Comm'n, 885 F.3d 687 (D.C. Cir. 2018) (hereinafter, “ACA International”), which invalidated portions of the FCC's 2015 definition of an ATDS. [Docket Item 26.] Plaintiffs filed a brief in opposition [Docket Item 28], and Defendant filed a reply. [Docket Items 32.] With leave of Court [Docket Item 35], both parties filed supplemental briefs addressing the impact of ACA International on the pending motion to dismiss. [Docket Items 36, 37.] The Court heard oral argument on July 19, 2018.

         The principal issues before the Court are whether Plaintiffs plausibly allege the following: (1) FMC improperly contacted Mr. Somogyi using an ATDS on his cellular telephone; (2) FMC impermissibly used a prerecorded or artificial voice to contact their residential telephone line; and (3) FMC failed to comply with Plaintiffs' do-not-call requests. For the reasons that follow, the Court finds that, accepting the allegations in the Amended Complaint as true, Plaintiffs have plausibly alleged that FMC improperly contacted Mr. Somogyi's cellular phone using an ATDS, that FMC used a prerecorded or artificial voice to contact Plaintiffs' residential telephone line, and that Plaintiffs asked FMC to stop calling them on both lines at issue and FMC ignored their requests. 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 Plaintiffs is required before any definitive legal standard under the TCPA can be applied to FMC's conduct herein. Accordingly, the Court will deny Defendant's motion to dismiss and deny FMC's request for a temporary stay.[1]

         II. Background

         Mr. and Mrs. Somogyi, both citizens of Pennsylvania, acquired a mortgage from FMC in 2012. [Docket Item 1 at ¶¶ 5, 21.] FMC is a Delaware corporation headquartered in Mt. Laurel, New Jersey. [Id. at ¶ 6.] Plaintiffs allege that FMC called their residential line “beginning in 2014 or 2015 through August 8, 2017, ” and Mr. Somogyi alleges FMC called his cellular phone “multiple times between 2014 and 2016.” [Id. at ¶ 23.]

         Plaintiffs aver that FMC placed the calls to Mr. Somogyi's cellular phone using an ATDS, [2] which was “marketed by Genesys Telecommunications Laboratory (formerly Interaction Intelligence Group, Inc.), called The I3 client within the Interactive Scripter software suite.” [Id. at ¶ 17.] According to the Amended Complaint, the ATDS was used by FMC employees in the following manner:

[A] Freedom Mortgage employee would press a single button on a computer keyboard screen, which would cause the software to choose a telephone number to be called, put information on the caller's screen such as the name and address of the individual being called, and dial the ten digit number without further human intervention. The software, not the caller, decided who would be called next.

[Id.] Plaintiffs base these claims, in part, on interviews conducted by and through their counsel with two former supervisory employees of FMC who worked at one of FMC's six call centers. [Id. at ¶¶ 12, 13.]

         Plaintiffs further allege that FMC used a “ringless voicemail” system to deliver “prerecorded message[s]” to customers, and that FMC used a prerecorded voice to leave a message on their residential telephone line on August 8, 2017. [Id. ¶¶ 18, 23.] According to the Amended Complaint, the “clarity and cadence, and the absence of anything specific such as the name of the person being called” indicated the message FMC left Plaintiffs “was prerecorded.” [Id. at ¶¶ 12, 13, 23.]

         Finally, Plaintiffs allege that, “[o]n each telephone number, the Plaintiffs orally requested in the first calls that they answered, and on additional calls subsequently, that further calls cease.” [Id. at ¶ 25.] Despite these requests, Plaintiffs contend, “Defendant continued to call.” [Id.] Plaintiffs aver that “managers at Freedom Mortgage call centers were instructed to, and did, delete the ‘do not call' entries[, ]” meaning “customers who had requested they not be called, would be called again, sometimes as soon as the next day.” [Id. at ¶ 15.]

         In sum, Plaintiffs allege the calls made by FMC to Plaintiffs' residential line and to Mr. Somogyi's cellular phone constitute violations of the TCPA under 47 U.S.C. §§ 227(b)(1)(A)(iii) and 227(b)(1)(B). [Id. at ¶¶ 51, 52.] Plaintiffs also assert that FMC's failure to honor their do-not-call requests, and the requests of other proposed class members, amounts to a violation of 47 U.S.C. § 227(c)(1)(a), 47 C.F.R. § 64.1200(d), and 16 C.F.R. § 310.4(b)(I)(iii). As relief, Plaintiffs seek an certifying this case as a class action, actual and statutory damages, including treble damages for willful and/or wanton violations, injunctive relief, pre- and post-judgment interest on monetary relief, and reasonable attorneys' fees. [Id. at a, c-h.]

         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. ...

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