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Wilson v. Quest Diagnostics Inc.

United States District Court, D. New Jersey

December 10, 2018

JUDY WILSON, on behalf of herself and all others similarly situated, Plaintiff,
v.
QUEST DIAGNOSTICS INC., Defendant.

          OPINION

          WILLIAM J. MARTINI, U.S.D.J.

         Plaintiff Judy Wilson (“Plaintiff”) brings this putative class action against Defendant Quest Diagnostics Inc. (“Quest”) for violating the Telephone Consumer Protection Act of 1991 (“TCPA”), 47 U.S.C. § 227 et seq. Now before the Court is Quest's motion to dismiss Plaintiff's Amended Complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The Court has jurisdiction under 28 U.S.C. §§ 1331, 1332(d)(2), and decides the matter without oral argument. Fed.R.Civ.P. 78(b). Upon consideration, Quest's motion to dismiss is DENIED.

         I. BACKGROUND [1]

         Quest provides diagnostic testing services at laboratories nationwide. On June 20, 2018, Plaintiff answered an unsolicited call to her cell phone from Quest. Am. Compl. ¶¶ 1, 12, ECF No. 6. The Quest representative told Plaintiff the purpose of the call was to “collect a debt owed by someone other than Plaintiff.” Id. ¶¶ 2, 15. Plaintiff never gave Quest permission to call her cell phone, never had any contact with Quest prior to receiving the call, and never provided Quest her phone number. Id. ¶¶ 12, 15.

         Upon answering the call, Plaintiff heard a momentary pause before a representative started speaking to her. Id. ¶ 14. The pause allegedly indicated that Quest used a predictive dialer, a device used to automatically dial telephone numbers. Id. ¶¶ 1, 13-14.

         Plaintiff asserts this conduct violates the TCPA's prohibition on placing non-emergency calls to her cell phone using an automatic telephone dialing system (“ATDS”) without having the prior express consent of the person called. Id. ¶ 10 (citing 47 U.S.C. § 227(b)(1)(A)(iii)). As a result, Plaintiff filed a two-count class action complaint under the TCPA, seeking injunctive relief and statutory damages. Am. Compl ¶¶ 28-32 (Count I), ¶¶ 33-37 (Count II).

         II. LEGAL STANDARD

         Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint if the plaintiff fails to state a claim upon which relief can be granted. The movant bears the burden of showing that no claim has been stated. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). “[A]ll allegations in the complaint must be accepted as true, and the plaintiff must be given the benefit of every favorable inference to be drawn therefrom.” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). “But [courts] disregard rote recitals of the elements of a cause of action, legal conclusions, and mere conclusory statements.” James, 700 F.3d at 679 (citations omitted). Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         To survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.

         III. DISCUSSION

         To assert a TCPA claim, a plaintiff must show the defendant: (1) called her cell phone; (2) using an ATDS; (3) without her prior express consent. See Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 373 (2012) (citing 47 U.S.C. § 227(b)(1)(A)). Quest challenges only the second element-that Plaintiff failed to allege that Quest placed a call to her cell phone using an ATDS. Def.'s Mem. 8, ECF No. 7-1.

         A. Defining an Automatic Telephone Dialing System

         The TCPA defines an ATDS as “equipment which has the capacity-(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). What falls within the statutory definition has been the subject of extensive rulemaking and debate.

         1. Federal Communications Commission's ...


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