United States District Court, D. New Jersey
JUDY WILSON, on behalf of herself and all others similarly situated, Plaintiff,
QUEST DIAGNOSTICS INC., Defendant.
WILLIAM J. MARTINI, U.S.D.J.
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
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.
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.
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).
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
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.”
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.
Defining an Automatic Telephone Dialing System
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.
Federal Communications Commission's ...